POLITICAL LAW 135385, Dec.
6, 2000, 347 SCRA 128, 271, En Banc
1. Distinguish sovereignty from dominion.
Held: Sovereignty is the right to exercise the functions
of a State to the exclusion of any other State. It is often
referred to as the power of imperium, which is defined as
the government authority possessed by the State. On the
other hand, dominion, or dominium, is the capacity of the
State to own or acquire property such as lands and
natural resources. (Separate Opinion, Kapunan, J., in
Isagani Cruz v. Secretary of DENR, G.R. No.
135385, Dec. 6, 2000, En Banc, See Footnote 86)
2. How did Spain acquire the Philippines?
Held: 1. The Philippines passed to Spain by
virtue of “discovery” and conquest. Consequently, all
lands became the exclusive patrimony and dominion of
the Spanish Crown. The Spanish Government took
charge of distributing the lands by issuing royal grants
and concessions to Spaniards, both military and civilian
(Antonio H. Noblejas, Land Titles and Deeds, p. 5 [1986];
These grants were better known as repartimientos and
encomiendas. Repartimientos were handouts to the
military as fitting reward for their services to the Spanish
crown. The encomiendas were given to Spaniards to
administer and develop with the right to receive and enjoy
for themselves the tributes of the natives assigned to
them. – Ponce, supra, p. 12, citing Benitez, History of the
Philippines, pp. 125-126). Private land titles could only
be acquired from the government either by purchase or
by the various modes of land grant from the Crown
(Narciso Pena, Registration of Land Titles and Deeds, p.
2 [1994]). (Separate Opinion, Puno, J., in Cruz v.
Secretary of Environment and Natural Resources,
347 SCRA 128, 166, En Banc [Per Curiam])
2. When Spain acquired sovereignty over the Philippines
by virtue of its discovery and occupation thereof in the
16th century and the Treaty of Tordesillas of 1494 which
it entered into with Portugal (Under the Treaty of
Tordesillas, the world was divided between Spain and
Portugal, with the former having exclusive power to claim
all lands and territories west of the Atlantic Ocean
demarcation line [Lynch, The Legal Bases of Philippine
Colonial Sovereignty, 62 Phil. L J 279, 283 [1987]) the
continents of Asia, the Americas and Africa were
considered as terra nullius although already populated by
other peoples (See Akehurst, a Modern Introduction to
International Law, 5th ed., 142-143). The discovery and
occupation by the European States, who were then
considered as the only members of the international
community of civilized nations, of lands in the said
continents were deemed sufficient to create title under
international law (See Cruz, International Law, 1996 ed.,
pp. 106-107) (Separate Opinion, Kapunan, J., in
Isagani Cruz v. Secretary of DENR, G.R. No.
[Per Curiam])
3. Discuss the concept of "jura regalia" and how it
evolved in the Philippines. Does it negate native title to
lands held in private ownership since time immemorial?
Held: Generally, under the concept of jura regalia,
private title to land must be traced to some grant, express
or implied, from the Spanish Crown or its successors, the
American Colonial government, and thereafter, the
Philippine Republic. The belief that the Spanish Crown is
the origin of all land titles in the Philippines has persisted
because title to land must emanate from some source for
it cannot issue forth from nowhere (Pena, Registration of
Land Titles and Deeds, 1994 rev. ed., p. 15).
In its broad sense, the term "jura regalia" refers to royal
grants (1 Bouvier's Law Dictionary, 3rd revision, p. 1759),
or those rights which the King has by virtue of his
prerogatives (Black's Law Dictionary, 6th ed., p. 1282). In
Spanish law, it refers to a right which the sovereign has
over anything in which a subject has a right of property
or propriedad (76 Corpus Juris Secundum, citing Hart v.
Burnett, 15 Cal. 530, 566). These were rights enjoyed
during feudal times by the king as the sovereign.
The theory of the feudal system was that title to all lands
was originally held by the King, and while the use of lands
was granted out to others who were permitted to hold
them under certain conditions, the King theoretically
retained the title (Washburn, p. 44; see also Williams,
Principles Of The Law On Real Property, 6th ed. [1886], p.
2; Bigelow, p. 2). By fiction of law, the King was regarded
as the original proprietor of all lands, and the true and
only source of title, and from him all lands were held
(Warvelle, Abstracts and Examination of Title to Real
Property [1907], p. 18). The theory of jura regalia was
therefore nothing more than a natural fruit of conquest (1
Dictionary of English Law [Jowitt, ed.] p. 797).
The Regalian theory, however, does not negate native
title to lands held in private ownership since time
immemorial. In the landmark case of Carino v. Insular
Government (41 Phil. 935, 212 U.S. 449, 53 L. Ed. 594
[1909]), the United States Supreme Court, reversing the
decision of the pre-war Philippine Supreme Court, made
the following pronouncement:
x x x Every presumption is and ought to be taken against
the Government in a case like the present. It might,
perhaps, be proper and sufficient to say that when, as far
back as testimony or memory goes, the land has been
held by individuals under a claim of private ownership, it
will be presumed to have been held in the same way from
before the Spanish conquest, and never to have been
public land. x x x (Carino v. Insular Government, supra
note 75, at 941)

The above ruling institutionalized the recognition of the
existence of native title to land, or ownership of land by
Filipinos by virtue of possession under a claim of
ownership since time immemorial and independent of any
grant from the Spanish Crown, as an exception to the
theory of jura regalia.
xxx
Carino was decided by the U.S. Supreme Court in 1909,
at a time when decisions of the U.S. Court were binding
as precedent in our jurisdiction (Section 10, Philippine Bill
of 1902). We applied the Carino doctrine in the 1946 case
of Oh Cho v. Director of Lands (75 Phil. 890 [1946]),
where we stated that “[a]ll lands that were not acquired
from the Government either by purchase or by grant,
belong to the public domain, but [a]n exception to the
rule would be any land that should have been in the
possession of an occupant and of his predecessors in
interest since time immemorial, for such possession would
justify the presumption that the land had never been part
of the public domain or that it had been private property
even before the Spanish conquest.” (Id., at 892).
(Separate Opinion, Kapunan, J., in Isagani Cruz v.
Secretary of DENR, G.R. No. 135385, Dec. 6, 2000,
347 SCRA 128, 268-270, En Banc [Per Curiam]
4. What was the basis for the early Spanish decrees
embracing the theory of jura regalia? Is this also the basis
of the declaration in Section 2, Article XII of the 1987
Constitution that all lands of the public domain are owned
by the State? Consequently, did Spain acquire title over
all lands in the Philippines in the 16th century?
Held: Dominium was the basis for the early Spanish
decrees embracing the theory of jura regalia. The
declaration in Section 2, Article XII of the 1987
Constitution that all lands of the public domain are owned
by the State is likewise founded on dominium. If
dominium, not imperium, is the basis of the theory of jura
regalia, then the lands which Spain acquired in the 16th
century were limited to non-private lands, because it
could only acquire lands which were not yet privately-
owned or occupied by the Filipinos. Hence, Spain
acquired title only over lands which were unoccupied and
unclaimed, i.e., public lands. (Separate Opinion,
Kapunan, J., in Isagani Cruz v. Secretary of DENR,
G.R. No. 135385, Dec. 6, 2000, En Banc, See
Footnote 86)
5. What is the Doctrine of Constitutional
Supremacy?
Held: Under the doctrine of constitutional supremacy, if
a law or contract violates any norm of the Constitution,
that law or contract, whether promulgated by the
legislative or by the executive branch or entered into by
private persons for private purposes, is null and void and
without any force and effect. Thus, since the Constitution
is the fundamental, paramount and supreme law of the
nation, it is deemed written in every statute and contract .
(Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997]
[Bellosillo])
6. What are self-executing and non-self executing
provisions of the Constitution?
Held: A provision which lays down a general principle,
such as those found in Article II of the 1987 Constitution,
is usually not self-executing. But a provision which is
complete in itself and becomes operative without the aid
of supplementary or enabling legislation, or that which
supplies sufficient rule by means of which the right it
grants may be enjoyed or protected, is self-executing.
Thus a constitutional provision is self-executing if the
nature and extent of the right conferred and the liability
imposed are fixed by the Constitution itself, so that they
can be determined by an examination and construction of
its terms, and there is no language indicating that the
subject is referred to the legislature for action. (Manila
Prince Hotel v. GSIS, 267 SCRA 408 [1997]
[Bellosillo])
7. Are provisions of the Constitution self-executing
or non-self executing? Why?
Held: Unless it is expressly provided that a legislative act
is necessary to enforce a constitutional mandate, the
presumption now is that all provisions are self-executing.
If the constitutional provisions are treated as requiring
legislation instead of self-executing, the legislature would
have the power to ignore and practically nullify the
mandate of the fundamental law. This can be
cataclysmic. (Manila Prince Hotel v. GSIS, 267 SCRA
408 [1997] [Bellosillo])
8. Is the “Filipino First” Policy expressed in Section
10, Article XII of the Constitution a self-executing
provision?
Held: Yes. It is a mandatory, positive command which
is complete in itself and which needs no further guidelines
or implementing laws or rules for its enforcement. From
its very words the provision does not require any
legislation to put it in operation. It is per se judicially
enforceable. When our Constitution mandates that [i]n
the grant of rights, privileges, and concessions covering
the national economy and patrimony, the State shall give
preference to qualified Filipinos, it means just that –
qualified Filipinos must be preferred. (Manila Prince
Hotel v. GSIS, G.R. No. 118295, May 2, 1997, 267
SCRA 408 [Bellosillo])
9. Give examples of non-self executing provisions
of the Constitution.

Held: By its very nature, Article II of the Constitution is
a “declaration of principles and state policies.” These
principles in Article II are not intended to be self-
executing principles ready for enforcement through the
courts. They are used by the judiciary as aids or as guides
in the exercise of its power of judicial review, and by the
legislature in its enactment of laws. As held in the leading
case of Kilosbayan, Incorporated v. Morato (246 SCRA
540, 564, July 17, 1995), the principles and state policies
enumerated in Article II and some sections of Article XII
are not “self-executing provisions, the disregard of which
can give rise to a cause of action in courts. They do not
embody judicially enforceable constitutional rights but
guidelines for legislation.” (Tanada v. Angara, 272
SCRA 18 [1997], En Banc [Panganiban])
10. When are acts of persons considered “State
action” covered by the Constitution?
Held: In constitutional jurisprudence, the act of persons
distinct from the government are considered “state
action” covered by the Constitution (1) when the activity
it engages in is a “public function”; (2) when the
government is so significantly involved with the private
actor as to make the government responsible for his
action; and (3) when the government has approved or
authorized the action. (Manila Prince Hotel v. GSIS,
267 SCRA 408 [1997] [Bellosillo])
The Doctrine of State Immunity from Suit
11. Discuss the basis of the doctrine of State
immunity from suit.
Held: The basic postulate enshrined in the Constitution
that “[t]he State may not be sued without its consent,”
reflects nothing less than a recognition of the sovereign
character of the State and an express affirmation of the
unwritten rule effectively insulating it from the jurisdiction
of courts. It is based on the very essence of sovereignty.
As has been aptly observed by Justice Holmes, a
sovereign is exempt from suit, not because of any formal
conception or obsolete theory, but on the logical and
practical ground that there can be no legal right as against
the authority that makes the law on which the right
depends. True, the doctrine, not too infrequently, is
derisively called “the royal prerogative of dishonesty”
because it grants the state the prerogative to defeat any
legitimate claim against it by simply invoking its non-
suability. We have had occasion to explain in its defense,
however, that a continued adherence to the doctrine of
non-suability cannot be deplored, for the loss of
governmental efficiency and the obstacle to the
performance of its multifarious functions would be far
greater in severity than the inconvenience that may be
caused private parties, if such fundamental principle is to
be abandoned and the availability of judicial remedy is not
to be accordingly restricted. (Department of
Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993
[Vitug])
12. Is the rule absolute, i.e., that the State may not
be sued at all? How may consent of the State to be sued
given?
Held: The rule, in any case, is not really absolute for it
does not say that the state may not be sued under any
circumstances. On the contrary, as correctly phrased, the
doctrine only conveys, “the state may not be sued without
its consent;” its clear import then is that the State may at
times be sued. The State's consent may be given either
expressly or impliedly. Express consent may be made
through a general law (i.e., Commonwealth Act No. 327,
as amended by Presidential Decree No. 1445 [Sections
49-50], which requires that all money claims against the
government must first be filed with the Commission on
Audit which must act upon it within sixty days. Rejection
of the claim will authorize the claimant to elevate the
matter to the Supreme Court on certiorari and, in effect,
sue the State thereby) or a special law. In this
jurisdiction, the general law waiving the immunity of the
state from suit is found in Act No. 3083, where the
Philippine government “consents and submits to be sued
upon any money claim involving liability arising from
contract, express or implied, which could serve as a basis
of civil action between the private parties.” Implied
consent, on the other hand, is conceded when the State
itself commences litigation, thus opening itself to a
counterclaim or when it enters into a contract. In this
situation, the government is deemed to have descended
to the level of the other contracting party and to have
divested itself of its sovereign immunity. This rule x x x
is not, however, without qualification. Not all contracts
entered into by the government operate as a waiver of its
non-suability; distinction must still be made between one
which is executed in the exercise of its sovereign function
and another which is done in its proprietary capacity.
In United States of America v. Ruiz (136 SCRA 487),
where the questioned transaction dealt with the
improvements on the wharves in the naval installation at
Subic Bay, we held:
“The traditional rule of immunity exempts a State from
being sued in the courts of another State without its
consent or waiver. This rule is a necessary consequence
of the principle of independence and equality of States.
However, the rules of International Law are not petrified;
they are constantly developing and evolving. And
because the activities of states have multiplied, it has
been necessary to distinguish them - between sovereign
and governmental acts (jure imperii) and private,
commercial and proprietary acts (jure gestionis). The
result is that State immunity now extends only to acts jure
imperii. The restrictive application of State immunity is
now the rule in the United States, the United Kingdom
and other states in Western Europe.
Xxx
The restrictive application of State immunity is proper
only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial
activities or economic affairs. Stated differently, a State
may be said to have descended to the level of an
individual and can thus be deemed to have tacitly given
its consent to be sued only when it enters into business
contracts. It does not apply where the contracts relate to
the exercise of its sovereign functions. In this case the
projects are an integral part of the naval base which is
devoted to the defense of both the United States and the
Philippines, indisputably a function of the government of
the highest order; they are not utilized for nor dedicated
to commercial or business purposes.”
(Department of Agriculture v. NLRC, 227 SCRA
693, Nov. 11, 1993 [Vitug])
13. When is a suit against a public official deemed to
be a suit against the State? Discuss.
Held: 1. The doctrine of state immunity from suit applies
to complaints filed against public officials for acts done in
the performance of their duties. The rule is that the suit
must be regarded as one against the State where the
satisfaction of the judgment against the public official
concerned will require the State itself to perform a
positive act, such as appropriation of the amount
necessary to pay the damages awarded to the plaintiff.
The rule does not apply where the public official is
charged in his official capacity for acts that are unlawful
and injurious to the rights of others. Public officials are
not exempt, in their personal capacity, from liability
arising from acts committed in bad faith.
Neither does it apply where the public official is clearly
being sued not in his official capacity but in his personal
capacity, although the acts complained of may have been
committed while he occupied a public position. (Amado
J. Lansang v. CA, G.R. No. 102667, Feb. 23, 2000,
2nd Div. [Quisumbing])
2. As early as 1954, this Court has pronounced that an
officer cannot shelter himself by the plea that he is a
public agent acting under the color of his office when his
acts are wholly without authority. Until recently in 1991
(Chavez v. Sandiganbayan, 193 SCRA 282 [1991]), this
doctrine still found application, this Court saying that
immunity from suit cannot institutionalize irresponsibility
and non-accountability nor grant a privileged status not
claimed by any other official of the Republic. (Republic
v. Sandoval, 220 SCRA 124, March 19, 1993, En
Banc [Campos, Jr.])
14. State instances when a suit against the State is
proper.
Held: Some instances when a suit against the State is
proper are:
1) When the Republic is sued by name;
2) When the suit is against an unincorporated
government agency;
3) When the suit is on its face against a
government officer but the case is such that ultimate
liability will belong not to the officer but to the
government.
Republic v. Sandoval, 220 SCRA 124, March 19,
1993, En Banc [Campos, Jr.])
15. Has the government waived its immunity from
suit in the Mendiola massacre, and, therefore, should
indemnify the heirs and victims of the Mendiola incident?
Consequently, is the suit filed against the Republic by
petitioners in said case really a suit against the State?
Held: Petitioners x x x advance the argument that the
State has impliedly waived its sovereign immunity from
suit. It is their considered view that by the
recommendation made by the Commission for the
government to indemnify the heirs and victims of the
Mendiola incident and by the public addresses made by
then President Aquino in the aftermath of the killings, the
State has consented to be sued.
Xxx
This is not a suit against the State with its consent.
Firstly, the recommendation made by the Commission
regarding indemnification of the heirs of the deceased
and the victims of the incident by the government does
not in any way mean that liability automatically attaches
to the State. It is important to note that A.O. 11 expressly
states that the purpose of creating the Commission was
to have a body that will conduct an “investigation of the
disorder, deaths and casualties that took place.” In the
exercise of its functions, A.O. 11 provides guidelines, and
what is relevant to Our discussion reads:
“1. Its conclusions regarding the existence of probable
cause for the commission of any offense and of the
persons probably guilty of the same shall be sufficient
compliance with the rules on preliminary investigation and
the charges arising therefrom may be filed directly with
the proper court.”
In effect, whatever may be the findings of the
Commission, the same shall only serve as the cause of
action in the event that any party decides to litigate
his/her claim. Therefore, the Commission is merely a
preliminary venue. The Commission is not the end in
itself. Whatever recommendation it makes cannot in any
way bind the State immediately, such recommendation
not having become final and executory. This is precisely
the essence of it being a fact-finding body.
Secondly, whatever acts or utterances that then President
Aquino may have done or said, the same are not
tantamount to the State having waived its immunity from
suit. The President’s act of joining the marchers, days
after the incident, does not mean that there was an
admission by the State of any liability. In fact to borrow
the words of petitioner x x x, “it was an act of solidarity
by the government with the people.” Moreover,
petitioners rely on President Aquino’s speech promising
that the government would address the grievances of the
rallyists. By this alone, it cannot be inferred that the State
has admitted any liability, much less can it be inferred that
it has consented to the suit.
Although consent to be sued may be given impliedly, still
it cannot be maintained that such consent was given
considering the circumstances obtaining in the instant
case.
Thirdly, the case does not qualify as a suit against the
State.
Xxx
While the Republic in this case is sued by name, the
ultimate liability does not pertain to the government.
Although the military officers and personnel, then party
defendants, were discharging their official functions when
the incident occurred, their functions ceased to be official
the moment they exceeded their authority. Based on the
Commission findings, there was lack of justification by the
government forces in the use of firearms. Moreover, the
members of the police and military crowd dispersal units
committed a prohibited act under B.P. Blg. 880 as there
was unnecessary firing by them in dispersing the
marchers.
As early as 1954, this Court has pronounced that an
officer cannot shelter himself by the plea that he is a
public agent acting under the color of his office when his
acts are wholly without authority. Until recently in 1991
(Chavez v. Sandiganbayan, 193 SCRA 282 [1991]), this
doctrine still found application, this Court saying that
immunity from suit cannot institutionalize irresponsibility
and non-accountability nor grant a privileged status not
claimed by any other official of the Republic. The military
and police forces were deployed to ensure that the rally
would be peaceful and orderly as well as to guarantee the
safety of the very people that they are duty-bound to
protect. However, the facts as found by the trial court
showed that they fired at the unruly crowd to disperse the
latter.
While it is true that nothing is better settled than the
general rule that a sovereign state and its political
subdivisions cannot be sued in the courts except when it
has given its consent, it cannot be invoked by both the
military officers to release them from any liability, and by
the heirs and victims to demand indemnification from the
government. The principle of state immunity from suit
does not apply, as in this case, when the relief demanded
by the suit requires no affirmative official action on the
part of the State nor the affirmative discharge of any
obligation which belongs to the State in its political
capacity, even though the officers or agents who are
made defendants claim to hold or act only by virtue of a
title of the state and as its agents and servants. This
Court has made it quite clear that even a “high position in
the government does not confer a license to persecute or
recklessly injure another.”
The inescapable conclusion is that the State cannot be
held civilly liable for the deaths that followed the incident.
Instead, the liability should fall on the named defendants
in the lower court. In line with the ruling of this Court in
Shauf v. Court of Appeals (191 SCRA 713 [1990]), herein
public officials, having been found to have acted beyond
the scope of their authority, may be held liable for
damages. (Republic v. Sandoval, 220 SCRA 124,
March 19, 1993, En Banc [Campos, Jr.])
16. May the Government validly invoke the doctrine
of State immunity from suit if its invocation will serve as
an instrument for perpetrating an injustice on a citizen?
Held: To our mind, it would be the apex of
injustice and highly inequitable for us to defeat
petitioners-contractors’ right to be duly compensated for
actual work performed and services rendered, where
both the government and the public have, for years,
received and accepted benefits from said housing
project and reaped the fruits of petitioners-contractors’
honest toil and labor.
Incidentally, respondent likewise argues that the
State may not be sued in the instant case, invoking the
constitutional doctrine of Non-suability of the State,
otherwise known as the Royal Prerogative of Dishonesty.
Respondent’s argument is misplaced inasmuch
as the principle of State immunity finds no application in
the case before us.
Under these circumstances, respondent may not
validly invoke the Royal Prerogative of Dishonesty and
conveniently hide under the State’s cloak of invincibility
against suit, considering that this principle yields to
certain settled exceptions. True enough, the rule, in any
case, is not absolute for it does not say that the state
may not be sued under any circumstances. (Citations
omitted)
 Thus, in Amigable v. Cuenca, this Court, in
effect, shred the protective shroud which shields the
state from suit, reiterating our decree in the landmark
case of Ministerio v. CFI of Cebu that “the doctrine of
governmental immunity from suit cannot serve as an
instrument for perpetrating an injustice on a citizen.” It
is just as important, if not more so, that there be fidelity
to legal norms on the part of officialdom if the rule of
law were to be maintained. (Citations omitted)
Although the Amigable and Ministerio cases
generously tackled the issue of the State’s immunity
from suit vis a vis the payment of just compensation for
expropriated property, this Court nonetheless finds the
doctrine enunciated in the aforementioned cases
applicable to the instant controversy, considering that
the ends of justice would be subverted if we were to
uphold, in this particular instance, the State’s immunity
from suit.
To be sure, this Court – as the staunch guardian
of the citizens’ rights and welfare – cannot sanction an
injustice so patent on its face, and allow itself to be an
instrument in the perpetration thereof. Justice and equity
sternly demand that the State’s cloak of invincibility
against suit be shred in this particular instance, and that
petitioners-contractors be duly compensated – on the
basis of quantum meruit – for construction done on the
public works housing project. (EPG Construction Co.
v. Vigilar, 354 SCRA 566, Mar.16, 2001, 2 nd
Div.
[Buena])
Citizenship
17. To what citizenship principle does the Philippines
adhere to? Explain, and give illustrative case.
Held: The Philippine law on citizenship adheres to the
principle of jus sanguinis. Thereunder, a child follows the
nationality or citizenship of the parents regardless of the
place of his/her birth, as opposed to the doctrine of jus
soli which determines nationality or citizenship on the
basis of place of birth.
Private respondent Rosalind Ybasco Lopez was
born on May 16, 1934 in Napier Terrace, Broome,
Western Australia, to the spouses, Telesforo Ybasco, a
Filipino citizen and native of Daet, Camarines Norte, and
Theresa Marquez, an Australian. Historically, this was a
year before the 1935 Constitution took into effect and at
that time, what served as the Constitution of the
Philippines were the principal organic acts by which the
United States governed the country. These were the
Philippine Bill of July 1, 1902 and the Philippine Autonomy
Act of August 29, 1916, also known as the Jones Law.
Among others, these laws defined who were
deemed to be citizens of the Philippine Islands. x x x
Under both organic acts, all inhabitants of the
Philippines who were Spanish subjects on April 11, 1899
and resided therein including their children are deemed
to be Philippine citizens. Private respondent’s father,
Telesforo Ybasco, was born on January 5, 1879 in Daet,
Camarines Norte, a fact duly evidenced by a certified true
copy of an entry in the Registry of Births. Thus, under
the Philippine Bill of 1902 and the Jones Law, Telesforo
Ybasco was deemed to be a Philippine citizen. By virtue
of the same laws, which were the laws in force at the time
of her birth, Telesforo’s daughter, herein private
respondent Rosalind Ybasco Lopez, is likewise a citizen of
the Philippines.
The signing into law of the 1935 Philippine Constitution
has established the principle of jus sanguinis as basis for
the acquisition of Philippine citizenship x x x. So also, the
principle of jus sanguinis, which confers citizenship by
virtue of blood relationship, was subsequently retained
under the 1973 and 1987 Constitutions. Thus, the herein
private respondent, Rosalind Ybasco Lopez, is a Filipino
citizen, having been born to a Filipino father. The fact of
her being born in Australia is not tantamount to her losing
her Philippine citizenship. If Australia follows the principle
of jus soli, then at most, private respondent can also claim
Australian citizenship resulting to her possession of dual
citizenship. (Valles v. COMELEC, 337 SCRA 543,
Aug. 9, 2000, En Banc [Purisima])
18. What are the ways of acquiring citizenship?
Discuss.
Held: There are two ways of acquiring citizenship: (1)
by birth, and (2) by naturalization. These ways of
acquiring citizenship correspond to the two kinds of
citizens: the natural-born citizen, and the naturalized
citizen. A person who at the time of his birth is a citizen
of a particular country, is a natural-born citizen thereof.
As defined in the x x x Constitution, natural-born citizens
“are those citizens of the Philippines from birth without
having to perform any act to acquire or perfect his
Philippine citizenship.”
On the other hand, naturalized citizens are those who
have become Filipino citizens through naturalization,
generally under Commonwealth Act No. 473, otherwise
known as the Revised Naturalization Law, which repealed
the former Naturalization Law (Act No. 2927), and by
Republic Act No. 530. (Antonio Bengson III v. HRET,
G.R. No. 142840, May 7, 2001, En Banc [Kapunan])
19. To be naturalized, what must an applicant prove?
When and what are the conditions before the decision
granting Philippine citizenship becomes executory?
Held: To be naturalized, an applicant has to prove that
he possesses all the qualifications and none of the
disqualifications provided by law to become a Filipino
citizen. The decision granting Philippine citizenship
becomes executory only after two (2) years from its
promulgation when the court is satisfied that during the
intervening period, the applicant has (1) not left the
Philippines; (2) has dedicated himself to a lawful calling
or profession; (3) has not been convicted of any offense
or violation of government promulgated rules; or (4)
committed any act prejudicial to the interest of the nation
or contrary to any government announced policies
(Section 1, R.A. 530). (Antonio Bengson III v. HRET,
G.R. No. 142840, May 7, 2001, En Banc [Kapunan])
20. What qualifications must be possessed by an
applicant for naturalization?
Held: Section 2, Act 473 provides the following
qualifications:
(a) He must be not less than 21 years of age on
the day of the hearing of the petition;
(b) He must have resided in the Philippines for a
continuous period of not less than ten years;
(c) He must be of good moral character and
believes in the principles underlying the Philippine
Constitution, and must have conducted himself in a
proper and irreproachable manner during the entire
period of his residence in the Philippines in his relation
with the constituted government as well as with the
community in which he is living;
(d) He must own real estate in the Philippines
worth not less than five thousand pesos, Philippine
currency, or must have some known lucrative trade,
profession, or lawful occupation;
(e) He must be able to speak and write English
or Spanish and any of the principal languages; and
(f) He must have enrolled his minor children of
school age, in any of the public schools or private schools
recognized by the Bureau of Private Schools of the
Philippines where Philippine history, government and civic
are taught or prescribed as part of the school curriculum,
during the entire period of the residence in the Philippines
required of him prior to the hearing of his petition for
naturalization as Philippine citizen.
(Antonio Bengson III v. HRET, G.R. No. 142840,
May 7, 2001, En Banc [Kapunan])
21. What are the disqualifications under Section 4,
Act 473, in an application for naturalization?
Held: Section 4, Act 473, provides the following
disqualifications:
(a) He must not be opposed to organized
government or affiliated with any association or group of
persons who uphold and teach doctrines opposing all
organized governments;
(b) He must not be defending or teaching the
necessity or propriety of violence, personal assault, or
assassination for the success and predominance of their
ideas;
(c) He must not be a polygamist or believer in
the practice of polygamy;
(d) He must not have been convicted of any
crime involving moral turpitude;
(e) He must not be suffering from mental
alienation or incurable contagious diseases;
(f) He must have, during the period of his
residence in the Philippines (or not less than six months
before filing his application), mingled socially with the
Filipinos, or who have not evinced a sincere desire to learn
and embrace the customs, traditions and ideals of the
Filipinos;
(g) He must not be a citizen or subject of a
nation with whom the Philippines is at war, during the
period of such war;
(h) He must not be a citizen or subject of a
foreign country whose laws do not grant Filipinos the right
to become naturalized citizens or subjects thereof.
(Antonio Bengson III v. HRET, G.R. No. 142840,
May 7, 2001, En Banc [Kapunan])
22. Can a legitimate child born under the 1935
Constitution of a Filipino mother and an alien father validly
elect Philippine citizenship fourteen (14) years after he
has reached the age of majority?
Held: Under Article IV, Section 1(3) of the 1935
Constitution, the citizenship of a legitimate child born of
a Filipino mother and an alien father followed the
citizenship of the father, unless, upon reaching the age of
majority, the child elected Philippine citizenship. C.A. No.
625 which was enacted pursuant to Section 1(3), Article
IV of the 1935 Constitution, prescribes the procedure that
should be followed in order to make a valid election of
Philippine citizenship. However, the 1935 Constitution
and C.A. No. 625 did not prescribe a time period within
which the election of Philippine citizenship should be
made. The 1935 Charter only provides that the election
should be made “upon reaching the age of majority.” The
age of majority then commenced upon reaching twenty-
one (21) years. In the opinions of the Secretary of Justice
on cases involving the validity of election of Philippine
citizenship, this dilemma was resolved by basing the time
period on the decisions of this Court prior to the effectivity
of the 1935 Constitution. In these decisions, the proper
period for electing Philippine citizenship was, in turn,
based on the pronouncements of the Department of State
of the United States Government to the effect that the
election should be made within a “reasonable time” after
attaining the age of majority. The phrase “reasonable
time” has been interpreted to mean that the election
should be made within three (3) years from reaching the
age of majority.
The span of fourteen (14) years that lapsed from the time
that person reached the age of majority until he finally
expressed his intention to elect Philippine citizenship is
clearly way beyond the contemplation of the requirement
of electing “upon reaching the age of majority.”
Philippine citizenship can never be treated like a
commodity that can be claimed when needed and
suppressed when convenient. One who is privileged to
elect Philippine citizenship has only an inchoate right to
such citizenship. As such, he should avail of the right with
fervor, enthusiasm and promptitude. (Re: Application
for Admission to the Philippine Bar, Vicente D.
Ching, Bar Matter No. 914, Oct. 1, 1999, En Banc
[Kapunan])
23. How may Philippine citizenship be renounced? Is
the application for an alien certificate of registration, and
the possession of foreign passport, tantamount to acts of
renunciation of Philippine citizenship?
Held: Petitioner also contends that even on the
assumption that the private respondent is a Filipino
citizen, she has nonetheless renounced her Philippine
citizenship. To buttress this contention, petitioner cited
private respondent’s application for an alien Certificate of
Registration (ACR) and Immigrant Certificate of
Residence (ICR), on September 19, 1988, and the
issuance to her of an Australian passport on March 3,
1988.
Xxx
In order that citizenship may be lost by
renunciation, such renunciation must be express.
Petitioner’s contention that the application of private
respondent for an alien certificate of registration, and her
Australian passport, is bereft of merit. This issue was put
to rest in the case of Aznar v. COMELEC (185 SCRA 703
[1990]) and in the more recent case of Mercado v.
Manzano and COMELEC (G.R. No. 135083, 307 SCRA 630,
May 26, 1999).
In the case of Aznar, the Court ruled that the
mere fact that he is an American did not mean that he is
no longer a Filipino, and that an application for an alien
certificate of registration was not tantamount to
renunciation of his Philippine citizenship.
And, in Mercado v. Manzano and COMELEC, it
was held that the fact that respondent Manzano was
registered as an American citizen in the Bureau of
Immigration and Deportation and was holding an
American passport on April 22, 1997, only a year before
he filed a certificate of candidacy for vice-mayor of
Makati, were just assertions of his American nationality
before the termination of his American citizenship.
Thus, the mere fact that private respondent
Rosalind Ybasco Lopez was a holder of an Australian
passport and had an alien certificate of registration are
not acts constituting an effective renunciation of
citizenship and do not militate against her claim of Filipino
citizenship. For renunciation to effectively result in the
loss of citizenship, the same must be express. As held by
this Court in the aforecited case of Aznar, an application
for an alien certificate of registration does not amount to
an express renunciation or repudiation of one’s
citizenship. The application of the herein private
respondent for an alien certificate of registration, and her
holding of an Australian passport, as in the case of
Mercado v. Manzano, were mere acts of assertion of her
Australian citizenship before she effectively renounced
the same. Thus, at the most, private respondent had dual
citizenship – she was an Australian and a Filipino, as well.
Moreover, under Commonwealth Act 63, the fact
that a child of Filipino parent/s was born in another
country has not been included as a ground for losing one’s
Philippine citizenship. Since private respondent did not
lose or renounce her Philippine citizenship, petitioner’s
claim that respondent must go through the process of
repatriation does not hold water. (Valles v. COMELEC,
337 SCRA 543, Aug. 9, 2000, En Banc [Purisima])
24. How may Filipino citizens who lost their
citizenship reacquire the same?
Answer: Filipino citizens who have lost their citizenship
may x x x reacquire the same in the manner provided by
law. Commonwealth Act No. 63 enumerates the three
modes by which Philippine citizenship may be reacquired
by a former citizen: (1) by naturalization, (2) by
repatriation, and (3) by direct act of Congress. (Frivaldo
v. COMELEC, 257 SCRA 727, June 28, 1996, En
Banc [Panganiban]; Antonio Bengson III v. HRET,
G.R. No. 142840, May 7, 2001, En Banc [Kapunan])
25. Distinguish naturalization from repatriation.
Held: Naturalization is a mode for both acquisition and
reacquisition of Philippine citizenship. As a mode of
initially acquiring Philippine citizenship, naturalization is
governed by Commonwealth Act No. 473, as amended.
On the other hand, naturalization as a mode for
reacquiring Philippine citizenship is governed by
Commonwealth Act No. 63 (An Act Providing for the Ways
in Which Philippine Citizenship May Be Lost or Reacquired
[1936]). Under this law, a former Filipino citizen who
wishes to reacquire Philippine citizenship must possess
certain qualifications and none of the disqualifications
mentioned in Section 4 of C.A. 473.
Repatriation, on the other hand, may be had under
various statutes by those who lost their citizenship due
to: (1) desertion of the armed forces (Section 4, C.A. No.
63); (2) service in the armed forces of the allied forces in
World War II (Section 1, Republic Act No. 965 [1953]);
(3) service in the Armed Forces of the United States at
any other time (Sec. 1, Republic Act No. 2630 [1960]);
(4) marriage of a Filipino woman to an alien (Sec. 1,
Republic Act No. 8171 [1995]); and (5) political and
economic necessity (Ibid).
As distinguished from the lengthy process of
naturalization, repatriation simply consists of the taking of
an oath of allegiance to the Republic of the Philippines
and registering said oath in the Local Civil Registry of the
place where the person concerned resides or last resided.
In Angat v. Republic (314 SCRA 438 [1999]), we held:
[P]arenthetically, under these statutes (referring to RA
Nos. 965 and 2630), the person desiring to reacquire
Philippine citizenship would not even be required to file a
petition in court, and all that he had to do was to take an
oath of allegiance to the Republic of the Philippines and
to register that fact with the civil registry in the place of
his residence or where he had last resided in the
Philippines.
Moreover, repatriation results in the recovery of the
original nationality. This means that a naturalized Filipino
who lost his citizenship will be restored to his prior status
as a naturalized Filipino citizen. On the other hand, if he
was originally a natural-born citizen before he lost his
Philippine citizenship, he will be restored to his former
status as a natural-born Filipino. (Antonio Bengson III
v. HRET, G.R. No. 142840, May 7, 2001, En Banc
[Kapunan])
26. Who may validly avail of repatriation under R.A.
No. 8171?
Held: R.A. No. 8171, which has lapsed into law on
October 23, 1995, is an act providing for the repatriation
(a) of Filipino women who have lost their Philippine
citizenship by marriage to aliens and (b) of natural-born
Filipinos who have lost their Philippine citizenship on
account of political or economic necessity. (Gerardo
Angat v. Republic, G.R. No. 132244, Sept. 14, 1999
[Vitug])
27. Before what agency should application for
repatriation under R.A 8171 be filed?
Held: Under Section 1 of P.D. No. 725, dated June 5,
1975, amending C.A. No. 63, an application for
repatriation could be filed with the Special Committee on
Naturalization chaired by the Solicitor General with the
Undersecretary of Foreign Affairs and the Director of the
National Intelligence Coordinating Agency as the other
members. Although the agency was deactivated by virtue
of President Corazon C. Aquino’s Memorandum of March
27, 1987, it was not, however, abrogated. The
Committee was reactivated on June 8, 1995. Hence, the
application should be filed with said Agency, not with the
Regional Trial Court. (Gerardo Angat v. Republic,
G.R. No. 132244, Sept. 14, 1999 [Vitug])
28. May a natural-born Filipino who became an
American citizen still be considered a natural-born Filipino
upon his reacquisition of Philippine citizenship and,
therefore, qualified to run for Congressman?
Held: Repatriation results in the recovery of the original
nationality. This means that a naturalized Filipino who
lost his citizenship will be restored to his prior status as a
naturalized Filipino citizen. On the other hand, if he was
originally a natural-born citizen before he lost his
Philippine citizenship, he will be restored to his former
status as a natural-born Filipino.
In respondent Cruz’s case, he lost his Filipino citizenship
when he rendered service in the Armed Forces of the
United States. However, he subsequently reacquired
Philippine citizenship under R.A. No. 2630, which
provides:
Section 1. Any person who had lost his Philippine
citizenship by rendering service to, or accepting
commission in, the Armed Forces of the United States, or
after separation from the Armed Forces of the United
States, acquired United States citizenship, may reacquire
Philippine citizenship by taking an oath of allegiance to
the Republic of the Philippines and registering the same
with Local Civil Registry in the place where he resides or
last resided in the Philippines. The said oath of allegiance
shall contain a renunciation of any other citizenship.
Having thus taken the required oath of allegiance to the
Republic and having registered the same in the Civil
Registry of Mangatarem, Pangasinan in accordance with
the aforecited provision, respondent Cruz is deemed to
have recovered his original status as a natural-born
citizen, a status which he acquired at birth as the son of
a Filipino father. It bears stressing that the act of
repatriation allows him to recover, or return to, his
original status before he lost his Philippine citizenship.
Petitioner’s contention that respondent Cruz is no longer
a natural-born citizen since he had to perform an act to
regain his citizenship is untenable. [T]he term “natural-
born citizen” was first defined in Article III, Section 4 of
the 1973 Constitution as follows:
Section 4. A natural-born citizen is one who is a citizen
of the Philippines from birth without having to perform
any act to acquire or perfect his Philippine citizenship.
Two requisites must concur for a person to be considered
as such: (1) a person must be a Filipino citizen from birth
and (2) he does not have to perform any act to obtain or
perfect his Philippine citizenship.
Under the 1973 Constitution definition, there were two
categories of Filipino citizens which were not considered
natural-born: (1) those who were naturalized and (2)
those born before January 17, 1973 (the date of
effectivity of the 1973 Constitution), of Filipino mothers
who, upon reaching the age of majority, elected Philippine
citizenship. Those “naturalized citizens” were not
considered natural-born obviously because they were not
Filipinos at birth and had to perform an act to acquire
Philippine citizenship. Those born of Filipino mothers
before the effectivity of the 1973 Constitution were
likewise not considered natural-born because they also
had to perform an act to perfect their Philippine
citizenship.
The present Constitution, however, now considers those
born of Filipino mothers before the effectivity of the 1973
Constitution and who elected Philippine citizenship upon
reaching the majority age as natural-born. After defining
who are natural-born citizens, Section 2 of Article IV adds
a sentence: “Those who elect Philippine citizenship in
accordance with paragraph (3), Section 1 hereof shall be
deemed natural-born citizens.” Consequently, only
naturalized Filipinos are considered not natural-born
citizens. It is apparent from the enumeration of who are
citizens under the present Constitution that there are only
two classes of citizens: (1) those who are natural-born
and (2) those who are naturalized in accordance with law.
A citizen who is not a naturalized Filipino, i.e., did not
have to undergo the process of naturalization to obtain
Philippine citizenship, necessarily is a natural-born
Filipino. Noteworthy is the absence in the said
enumeration of a separate category for persons who,
after losing Philippine citizenship, subsequently reacquire
it. The reason therefore is clear: as to such persons, they
would either be natural-born or naturalized depending on
the reasons for the loss of their citizenship and the mode
prescribed by the applicable law for the reacquisition
thereof. As respondent Cruz was not required by law to
go through naturalization proceedings in order to
reacquire his citizenship, he is perforce a natural-born
Filipino. As such, he possessed all the necessary
qualifications to be elected as member of the House of
Representatives. (Antonio Bengson III v. HRET, G.R.
No. 142840, May 7, 2001, En Banc [Kapunan])
29. Distinguish dual citizenship from dual allegiance.
Held: Dual citizenship arises when, as a result of the
concurrent application of the different laws of two or more
states, a person is simultaneously considered a national
by the said states. For instance, such a situation may
arise when a person whose parents are citizens of a state
which adheres to the principle of jus sanguinis is born in
a state which follows the doctrine of jus soli. Such a
person, ipso facto and without any voluntary act on his
part, is concurrently considered a citizen of both states.
Dual allegiance, on the other hand, refers to a situation
in which a person simultaneously owes, by some positive
act, loyalty to two or more states. While dual citizenship
is involuntary, dual allegiance is the result of an
individual’s volition. (Mercado v. Manzano, 307 SCRA
630, May 26, 1999, En Banc [Mendoza])
30. What is the main concern of Section 5, Article IV,
1987 Constitution, on citizenship? Consequently, are
persons with mere dual citizenship disqualified to run for
elective local positions under Section 40(d) of the Local
Government Code?
Held: In including Section 5 in Article IV on citizenship,
the concern of the Constitutional Commission was not
with dual citizens per se but with naturalized citizens who
maintain their allegiance to their countries of origin even
after their naturalization. Hence, the phrase “dual
citizenship” in R.A. No. 7160, Section 40(d) (Local
Government Code) must be understood as referring to
“dual allegiance.” Consequently, persons with mere dual
citizenship do not fall under this disqualification. Unlike
those with dual allegiance, who must, x x x, be subject to
strict process with respect to the termination of their
status, for candidates with dual citizenship, it should
suffice if, upon the filing of their certificate of candidacy,
they elect Philippine citizenship to terminate their status
as persons with dual citizenship considering that their
condition is the unavoidable consequence of conflicting
laws of different states.
By electing Philippine citizenship, such candidates at the
same time forswear allegiance to the other country of
which they are also citizens and thereby terminate their
status as dual citizens. It may be that, from the point of
view of the foreign state and of its laws, such an individual
has not effectively renounced his foreign citizenship. That
is of no moment. (Mercado v. Manzano, G.R. No.
135083, 307 SCRA 630, May 26, 1999 [Mendoza])
31. Cite instances when a citizen of the Philippines
may possess dual citizenship considering the citizenship
clause (Article IV) of the Constitution.
Held:
1) Those born of Filipino fathers and/or mothers
in foreign countries which follow the principle of jus soli;
2) Those born in the Philippines of Filipino
mothers and alien fathers if by the laws of their father’s
country such children are citizens of that country;
3) Those who marry aliens if by the laws of the
latter’s country the former are considered citizens, unless
by their act or omission they are deemed to have
renounced Philippine citizenship.
(Mercado v. Manzano, G.R. No. 135083, 307 SCRA
630, May 26, 1999 [Mendoza])
32. Does res judicata apply in cases hinging on the issue
of citizenship?
Held: Petitioner maintains further that when citizenship
is raised as an issue in judicial or administrative
proceedings, the resolution or decision thereon is
generally not considered res judicata in any subsequent
proceeding challenging the same; citing the case of Moy
Ya Lim Yao v. Commissioner of Immigration (41 SCRA 292
[1971]). He insists that the same issue of citizenship may
be threshed out anew.
Petitioner is correct insofar as the general rule is
concerned, i.e., the principle of res judicata generally
does not apply in cases hinging on the issue of citizenship.
However, in the case of Burca v. Republic (51 SCRA 248
[1973]), an exception to this general rule was recognized.
The Court ruled in that case that in order that the doctrine
of res judicata may be applied in cases of citizenship, the
following must be present:
1) a person’s citizenship be raised as a material
issue in a controversy where said person is a party;
2) the Solicitor General or his authorized
representative took active part in the resolution thereof,
and
3) the finding on citizenship is affirmed by this
Court.
Although the general rule was set forth in the case of Moy
Ya Lim Yao, the case did not foreclose the weight of prior
rulings on citizenship. It elucidated that reliance may
somehow be placed on these antecedent official findings,
though not really binding, to make the effort easier or
simpler. (Valles v. COMELEC, 337 SCRA 543, Aug. 9,
2000, En Banc [Purisima])
Civilian Supremacy Clause
33. The President issued Letter of Instruction (LOI)
ordering the deployment of members of the Philippine
Marines in the metropolis to conduct joint visibility patrols
with members of the Philippine National Police in various
shopping malls. Will this not violate the civilian
supremacy clause under Section 3, Article II of the
Constitution? Does this not amount to an "insidious
incursion" of the military in the task of law enforcement
in violation of Section 5(4), Article XVI of the Constitution?
Held: The deployment of the Marines does not constitute
a breach of the civilian supremacy clause. The calling of
the marines in this case constitutes permissible use of
military assets for civilian law enforcement. x x x The
limited participation of the Marines is evident in the
provisions of the LOI itself, which sufficiently provides the
metes and bounds of the Marines' authority. It is
noteworthy that the local police forces are the ones in
charge of the visibility patrols at all times, the real
authority belonging to the PNP. In fact, the Metro Manila
Police Chief is the overall leader of the PNP-Philippine
Marines joint visibility patrols. Under the LOI, the police
forces are tasked to brief or orient the soldiers on police
patrol procedures. It is their responsibility to direct and
manage the deployment of the Marines. It is, likewise,
their duty to provide the necessary equipment to the
Marines and render logistical support to these soldiers. In
view of the foregoing, it cannot be properly argued that
military authority is supreme over civilian authority.
Moreover, the deployment of the Marines to assist the
PNP does not unmake the civilian character of the police
force. Neither does it amount to an “insidious incursion”
of the military in the task of law enforcement in violation
of Section 5[4], Article XVI of the Constitution.
In this regard, it is not correct to say that General Angelo
Reyes, Chief of Staff of the AFP, by his alleged
involvement in civilian law enforcement, has been
virtually appointed to a civilian post in derogation of the
aforecited provision. The real authority in these
operations, as stated in the LOI, is lodged with the head
of a civilian institution, the PNP, and not with the military.
Such being the case, it does not matter whether the AFP
Chief actually participates in the Task Force Tulungan
since he does not exercise any authority or control over
the same. Since none of the Marines was incorporated or
enlisted as members of the PNP, there can be no
appointment to a civilian position to speak of. Hence, the
deployment of the Marines in the joint visibility patrols
does not destroy the civilian character of the PNP.
Considering the above circumstances, the Marines render
nothing more than assistance required in conducting the
patrols. As such, there can be no “insidious incursion” of
the military in civilian affairs nor can there be a violation
of the civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian
authorities in various forms persists in Philippine
jurisdiction. The Philippine experience reveals that it is
not averse to requesting the assistance of the military in
the implementation and execution of certain traditionally
“civil” functions. x x x [S]ome of the multifarious activities
wherein military aid has been rendered, exemplifying the
activities that bring both the civilian and the military
together in a relationship of cooperation, are:
1. Elections;
2. Administration of the Philippine National
Red Cross;
3. Relief and rescue operations during
calamities and disasters;
4. Amateur sports promotion and
development;
5. Development of the culture and the arts;
6. Conservation of natural resources;
7. Implementation of the agrarian reform
program;
8. Enforcement of customs laws;
9. Composite civilian-military law
enforcement activities;
10. Conduct of licensure examinations;
11. Conduct of nationwide tests for
elementary and high school students;
12. Anti-drug enforcement activities;
13. Sanitary inspections;
14. Conduct of census work;
15. Administration of the Civil Aeronautics
Board;
16. Assistance in installation of weather
forecasting devices;
17. Peace and order policy formulation in
local government units.
This unquestionably constitutes a gloss on executive
power resulting from a systematic, unbroken, executive
practice, long pursued to the knowledge of Congress and,
yet, never before questioned. What we have here is
mutual support and cooperation between the military and
civilian authorities, not derogation of civilian supremacy.
In the United States, where a long tradition of suspicion
and hostility towards the use of military force for domestic
purposes has persisted and whose Constitution, unlike
ours, does not expressly provide for the power to call, the
use of military personnel by civilian law enforcement
officers is allowed under circumstances similar to those
surrounding the present deployment of the Philippine
Marines. (IBP v. Hon. Ronaldo B. Zamora, G.R. No.
141284, Aug. 15, 2000, En Banc [Kapunan])
The Right to a Balanced and Healthful Ecology
34. Is the right to a balanced and healthful ecology any
less important than any of the civil and political rights
enumerated in the Bill of Rights? Explain.
Held: While the right to a balanced and healthful ecology
is to be found under the Declaration of Principles and
State Policies and not under the Bill of Rights, it does not
follow that it is less important than any of the civil and
political rights enumerated in the latter. Such a right
belongs to a different category of rights altogether for it
concerns nothing less than self-preservation and self-
perpetuation, the advancement of which may even be
said to predate all governments and constitutions. As a
matter of fact, these basic rights need not even be written
in the Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly
mentioned in the fundamental charter, it is because of the
well-founded fear of its framers that unless the rights to
a balanced and healthful ecology and to health are
mandated as state policies by the Constitution itself,
thereby highlighting their continuing importance and
imposing upon the state a solemn obligation to preserve
the first and protect and advance the second, the day
would not be too far when all else would be lost not only
for the present generation, but also for those to come –
generations which stand to inherit nothing but parched
earth incapable of sustaining life. (Oposa v. Factoran,
Jr., 224 SCRA 792 [1993][Davide])
35. The Province of Palawan and the City of Puerto
Princesa enacted ordinances prohibiting the catching
and/or exportation of live tropical fishes, and imposing
penalties for violations thereof, in order to stop the illegal
practice of cyanide fishing which destroys the corals and
other marine resources. Several fishermen apprehended
for violating the ordinances in question challenged their
constitutionality contending that the ordinances violated
their preferential right as subsistence and marginal
fishermen to the use of our communal marine resources
guaranteed by the Constitution, under Section 7, Article
XIII. Will you sustain the challenge?
Held: The “preferential right” of subsistence or marginal
fishermen to the use of marine resources is not absolute.
In accordance with the Regalian Doctrine, marine
resources belong to the State, and, pursuant to the first
paragraph of Section 2, Article XII of the Constitution,
their “exploration, development and utilization x x x shall
be under the full control and supervision of the State.”
Moreover, their mandated protection, development and
conservation x x x imply certain restrictions on whatever
right of enjoyment there may be in favor of anyone. What
must be borne in mind is the State policy enshrined in the
Constitution regarding the duty of the State to protect and
advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony
of nature (Section 16, Article II). The ordinances in
question are meant precisely to protect and conserve our
marine resources to the end that their enjoyment may be
guaranteed not only for the present generation, but also
for the generations to come. The right to a balanced and
healthful ecology carries with it a correlative duty to
refrain from impairing the environment. (Tano v. Gov.
Salvador P. Socrates, G.R. No. 110249, Aug. 21,
1997)
Academic Freedom
36. How should the State’s power to regulate
educational institutions be exercised?
Held: Section 4[1], Article XIV of the
Constitution recognizes the State’s power to regulate
educational institutions:
The State recognizes the complementary roles of public
and private institutions in the educational system and
shall exercise reasonable supervision and regulation of all
educational institutions.
As may be gleaned from the above provision,
such power to regulate is subject to the requirement of
reasonableness. Moreover, the Constitution allows
merely the regulation and supervision of educational
institutions, not the deprivation of their rights. (Miriam
College Foundation, Inc. v. Court of Appeals, 348
SCRA 265, 288, Dec. 15, 2000, 1st Div. [Kapunan])
37. Discuss the academic freedom of institutions of
higher learning.
Held: 1. Equally mandated by Article XIV,
Section 5[2] of the 1987 Constitution is that academic
freedom shall be enjoyed in all institutions of higher
learning. Academic freedom of educational institutions
has been defined as the right of the school or college to
decide for itself, its aims and objectives, and how best to
attain them - free from outside coercion or interference
save possibly when the overriding public welfare calls for
some restraint. It has a wide sphere of autonomy
certainly extending to the choice of students. Said
constitutional provision is not to be construed in a
niggardly manner or in a grudging fashion. That would
be to frustrate its purpose and nullify its intent (Garcia v.
The Faculty Admission Committee, et al., supra;
Tangonan v. Pano, et al., supra.)
While it is true that an institution of learning has
a contractual obligation to afford its students a fair
opportunity to complete the course they seek to pursue
(Licup, et al. v. University of San Carlos [USC], et al.,
supra.), since a contract creates reciprocal rights and
obligations, the obligation of the school to educate a
student would imply a corresponding obligation on the
part of the student to study and obey the rules and
regulations of the school (Capitol Medical Center, Inc., et
al. v. Court of Appeals, et al., supra.). When a student
commits a serious breach of discipline or failed to
maintain the required academic standard, he forfeits his
contractual right. In this connection, this Court
recognizes the expertise of educational institutions in the
various fields of learning. Thus, they are afforded ample
discretion to formulate reasonable rules and regulations
in the admission of students (Yap Chin Fah, et al. v. Court
of Appeals, et al., G.R. No. 90063, December 12, 1989),
including setting of academic standards. Within the
parameters thereof, they are competent to determine
who are entitled to admission and re-admission.
(University of San Agustin, Inc. v. Court of
Appeals, 230 SCRA 761, 774-775, March 7, 1994
[Nocon])
2. Section 5[2], Article XIV of the Constitution
guarantees all institutions of higher learning academic
freedom. This institutional academic freedom includes
the right of the school or college to decide for itself, its
aims and objectives, and how best to attain them free
from outside coercion or interference save possibly when
the overriding public welfare calls for some restraint
(Tangonan v. Pano, 137 SCRA 245, 256-257 [1985]). The
essential freedoms subsumed in the term “academic
freedom” encompasses the freedom to determine for
itself on academic grounds:
(1) Who may teach,
(2) What may be taught,
(3) How it shall be taught, and
(4) Who may be admitted to study. (Isabelo, Jr.
v. Perpetual Help College of Rizal, Inc., 227 SCRA 591,
595 [1993]; Ateneo de Manila University v. Capulong, 222
SCRA 643, 660 [1993]; Garcia v. The Faculty Admission
Committee, Loyola School of Theology, 68 SCRA 277, 285
[1975]. The above formulation was made by Justice Felix
Frankfurter in his concurring opinion in Sweezy v. New
Hampshire, 354 U.S. 234, 263)
The right of the school to discipline its students is at once
apparent in the third freedom, i.e., “how it shall be
taught.” A school certainly cannot function in an
atmosphere of anarchy.
Thus, there can be no doubt that the establishment of an
educational institution requires rules and regulations
necessary for the maintenance of an orderly educational
program and the creation of an educational environment
conducive to learning. Such rules and regulations are
equally necessary for the protection of the students,
faculty, and property (Angeles v. Sison, 112 SCRA 26, 37
[1982]).
Moreover, the school has an interest in teaching
the student discipline, a necessary, if not indispensable,
value in any field of learning. By instilling discipline, the
school teaches discipline. Accordingly, the right to
discipline the student likewise finds basis in the freedom
“what to teach.”
Incidentally, the school not only has the right but
the duty to develop discipline in its students. The
Constitution no less imposes such duty.
[All educational institutions] shall inculcate patriotism and
nationalism, foster love of humanity, respect for human
rights, appreciation of the role of national heroes in the
historical development of the country, teach the rights
and duties of citizenship, strengthen ethical and spiritual
values, develop moral character and personal discipline,
encourage critical and creative thinking, broaden scientific
and technological knowledge, and promote vocational
efficiency (Section 3[2], Article XIV, Constitution).
In Angeles v. Sison, we also said that discipline was a
means for the school to carry out its responsibility to help
its students “grow and develop into mature, responsible,
effective and worthy citizens of the community.” (Supra,
at 37)
Finally, nowhere in the above formulation is the
right to discipline more evident than in “who may be
admitted to study.” If a school has the freedom to
determine whom to admit, logic dictates that it also has
the right to determine whom to exclude or expel, as well
as upon whom to impose lesser sanctions such as
suspension and the withholding of graduation privileges.
Thus, in Ateneo de Manila v. Capulong (222 SCRA
643 [1993]), the Court upheld the expulsion of students
found guilty of hazing by petitioner therein, holding that:
No one can be so myopic as to doubt that the immediate
reinstatement of respondent students who have been
investigated and found guilty by the Disciplinary Board to
have violated petitioner university’s disciplinary rules and
standards will certainly undermine the authority of the
administration of the school. This we would be most
loathe to do.
More importantly, it will seriously impair petitioner
university’s academic freedom which has been enshrined
in the 1935, 1973 and the present 1987 Constitution (Id.,
at 659-660).
(Miriam College Foundation, Inc. v. Court of
Appeals, 348 SCRA 265, Dec. 15, 2000, 1st Div.
[Kapunan])
38. May a university validly revoke a degree or honor
it has conferred to a student after the graduation of the
latter after finding that such degree or honor was
obtained through fraud?
Held: In Garcia v. Faculty Admission Committee, Loyola
School of Theology (68 SCRA 277 [1975]), the SC pointed
out that academic freedom of institutions of higher
learning is a freedom granted to “institutions of higher
learning” which is thus given a “wide sphere of authority
certainly extending to the choice of students.” If such
institution of higher learning can decide who can and who
cannot study in it, it certainly can also determine on whom
it can confer the honor and distinction of being its
graduates.
Where it is shown that the conferment of an honor or
distinction was obtained through fraud, a university has
the right to revoke or withdraw the honor or distinction it
has thus conferred. This freedom of a university does not
terminate upon the “graduation” of a student, for it is
precisely the “graduation” of such a student that is in
question. (UP Board of Regents v. Hon. Court of
Appeals and Arokiaswamy William Margaret
Celine, G.R. No. 134625, Aug. 31, 1999, 2nd Div.
[Mendoza])
39. What are the essential freedoms subsumed in the
term “academic freedom”?
Held: In Ateneo de Manila University v. Capulong (G.R.
No. 99327, 27 May 1993), this Court cited with approval
the formulation made by Justice Felix Frankfurter of the
essential freedoms subsumed in the term “academic
freedom” encompassing not only “the freedom to
determine x x x on academic grounds who may teach,
what may be taught (and) how it shall be taught,” but
likewise “who may be admitted to study.” We have thus
sanctioned its invocation by a school in rejecting students
who are academically delinquent (Tangonan v. Pano, 137
SCRA 245 [1985]), or a laywoman seeking admission to a
seminary (Garcia v. Loyola School of Theology, 68 SCRA
277 [1975]), or students violating “School Rules on
Discipline.” (Ateneo de Manila University v. Capulong,
supra.) (Isabelo, Jr. v. Perpetual Help College of
Rizal, Inc., 227 SCRA 595-597, Nov. 8, 1993, En
Banc [Vitug])
40. Between the COA’s findings and conclusions and
that of private auditors, which should prevail?
Held: Moreover, as the constitutionally-mandated
auditor of all government agencies, the COA’s findings
and conclusions necessarily prevail over those of private
auditors, at least insofar as government agencies and
officials are concerned. The superiority or
preponderance of the COA audit over private audit can
be gleaned from the records of the Constitutional
Commission x x x. The findings and conclusions of the
private auditor may guide private investors or creditors
who require such private audit. Government agencies
and officials, however, remain bound by the findings and
conclusions of the COA, whether the matter falls under
the first or second paragraph of Section 2, unless of
course such findings and conclusions are modified or
reversed by the courts.
The power of the COA to examine and audit government
agencies, while non-exclusive, cannot be taken away
from the COA. Section 3, Article IX-C of the Constitution
mandates that:
“Sec. 3. No law shall be passed exempting any entity of
the Government or its subsidiary in any guise
whatsoever, or any investment of public funds, from the
jurisdiction of the Commission on Audit.”
The mere fact that private auditors may audit
government agencies does not divest the COA of its
power to examine and audit the same government
agencies. The COA is neither by-passed nor ignored
since even with a private audit the COA will still conduct
its usual examination and audit, and its findings and
conclusions will still bind government agencies and their
officials. A concurrent private audit poses no danger
whatsoever of public funds or assets escaping the usual
scrutiny of a COA audit. (Development Bank of the
Philippines v. Commission on Audit, 373 SCRA
356, January 16, 2002, En Banc [Carpio])
41. Is the constitutional power of the COA to
examine and audit government banks and agencies
exclusive? Does it preclude a concurrent audit by a
private external auditor?
Held: The resolution of the primordial issue of whether
or not the COA has the sole and exclusive power to
examine and audit government banks involves an
interpretation of Section 2, Article IX-D of the 1987
Constitution. This Section provides as follows:
“Sec. 2. (1) The Commission on Audit shall have the
power, authority, and duty to examine, audit, and settle
all accounts pertaining to the revenue and receipts of,
and expenditures or uses of funds and property, owned
and held in trust by, or pertaining to, the Government,
or any of its subdivisions, agencies, or instrumentalities,
including government-owned or controlled corporations
with original charters, x x x.
“(2) The Commission shall have the exclusive authority,
subject to the limitations in this Article, to define the
scope of its audit and examination, establish the
techniques and methods required therefore, and
promulgate accounting and auditing rules and
regulations, including those for the prevention and
disallowance of irregular, unnecessary, excessive,
extravagant, or unconscionable expenditures, or uses of
government funds and properties.” (Emphasis supplied)
The COA vigorously asserts that under the first
paragraph of Section 2, the COA enjoys the sole and
exclusive power to examine and audit all government
agencies, including the DBP. The COA contends this is
similar to its sole and exclusive authority, under the
same paragraph of the same section, to define the
scope of its audit, promulgate auditing rules and
regulations, including rules on the disallowance of
unnecessary expenditures of government agencies. The
bare language of Section 2, however, shows that the
COA’s power under the first paragraph is not declared
exclusive, while its authority under the second
paragraph is expressly declared “exclusive.” There is a
significant reason for this marked difference in language.
During the deliberations of the Constitutional
Commission, Commissioner Serafin Guingona proposed
the addition of the word “exclusive” in the first
paragraph of Section 2, thereby granting the COA the
sole and exclusive power to examine and audit all
government agencies. However, the Constitutional
Commission rejected the addition of the word
“exclusive” in the first paragraph of Section 2 and
Guingona was forced to withdraw his proposal. X x x.
Xxx
In sharp contrast, the Constitutional Commission placed
the word “exclusive” to qualify the authority of the COA
under the second paragraph of the same Section 2. This
word “exclusive” did not appear in the counterpart
provisions of Section 2 in the 1935 and 1973
Constitutions. There is no dispute that the COA’s
authority under the second paragraph of Section 2 is
exclusive as the language of the Constitution admits of
no other meaning. Thus, the COA has the exclusive
authority to decide on disallowances of unnecessary
government expenditures. Other government agencies
and their officials, as well as private auditors engaged by
them, cannot in any way intrude into this exclusive
function of the COA.
The qualifying word “exclusive” in the second paragraph
of Section 2 cannot be applied to the first paragraph
which is another sub-section of Section 2. A qualifying
word is intended to refer only to the phrase to which it is
immediately associated, and not to a phrase distantly
located in another paragraph or sub-section (Felipe v.
De la Cruz, 99 Phil. 940 [1956]; Tirona v. Cudiamat, 14
SCRA 264 [1965]). Thus, the first paragraph of Section
2 must be read the way it appears, without the word
“exclusive,” signifying that non-COA auditors can also
examine and audit government agencies. Besides, the
framers of the Constitution intentionally omitted the
word “exclusive” in the first paragraph of Section 2
precisely to allow concurrent audit by private external
auditors.
The clear and unmistakable conclusion from a reading of
the entire Section 2 is that the COA’s power to examine
and audit is non-exclusive. On the other hand, the
COA’s authority to define the scope of its audit,
promulgate auditing rules and regulations, and disallow
unnecessary expenditures is exclusive.
Xxx
Manifestly, the express language of the
Constitution, and the clear intent of its framers, point to
only one indubitable conclusion – the COA does not have
the exclusive power to examine and audit government
agencies. The framers of the Constitution were fully
aware of the need to allow independent private audit of
certain government agencies in addition to the COA
audit, as when there is a private investment in a
government-controlled corporation, or when a
government corporation is privatized or publicly listed, or
as in the case at bar when the government borrows
money from abroad.
In these instances the government enters the
marketplace and competes with the rest of the world in
attracting investments or loans. To succeed, the
government must abide with the reasonable business
practices of the marketplace. Otherwise no investor or
creditor will do business with the government,
frustrating government efforts to attract investments or
secure loans that may be critical to stimulate moribund
industries or resuscitate a badly shattered national
economy as in the case at bar. By design the
Constitution is flexible enough to meet these exigencies.
Any attempt to nullify this flexibility in the instances
mentioned, or in similar instances, will be ultra vires, in
the absence of a statute limiting or removing such
flexibility.
The deliberations of the Constitutional Commission
reveal eloquently the intent of Section 2, Article IX-D of
the Constitution. As this Court has ruled repeatedly, the
intent of the law is the controlling factor in the
interpretation of the law (People v. Purisima, 86 SCRA
542 [1978]; others omitted). If a law needs
interpretation, the most dominant influence is the intent
of the law (De Jesus v. City of Manila, 29 Phil. 73
[1914]). The intent of the law is that which is expressed
in the words of the law, which should be discovered
within its four corners aided, if necessary, by its
legislative history (Manila Lodge No. 761 v. Court of
Appeals, 73 SCRA 162 [1976]). In the case of Section 2,
Article IX-D of the Constitution, the intent of the framers
of the Constitution is evident from the bare language of
Section 2 itself. The deliberations of the Constitutional
Commission confirm expressly and even elucidate
further this intent beyond any doubt whatsoever.
There is another constitutional barrier to the
COA’s insistence of exclusive power to examine and
audit all government agencies. The COA’s claim clashes
directly with the Central Bank’s constitutional power of
“supervision” over banks under Section 20, Article XII of
the Constitution. X x x
Historically, the Central Bank has been
conducting periodic and special examination and audit of
banks to determine the soundness of their operations
and the safety of the deposits of the public. Undeniably,
the Central Bank’s power of “supervision” includes the
power to examine and audit banks, as the banking laws
have always recognized this power of the Central Bank.
Hence, the COA’s power to examine and audit
government banks must be reconciled with the Central
Bank’s power to supervise the same banks. The
inevitable conclusion is that the COA and the Central
Bank have concurrent jurisdiction, under the
Constitution, to examine and audit government banks.
However, despite the Central Bank’s concurrent
jurisdiction over government banks, the COA’s audit still
prevails over that of the Central Bank since the COA is
the constitutionally mandated auditor of government
banks. And in matters falling under the second
paragraph of Section 2, Article IX-D of the Constitution,
the COA’s jurisdiction is exclusive. Thus, the Central
Bank is devoid of authority to allow or disallow
expenditures of government banks since this function
belongs exclusively to the COA. (Development Bank
of the Philippines v. Commission on Audit, 373
SCRA 356, January 16, 2002, En Banc [Carpio])
Economic Policy
42. Does the Constitutional policy of a “self-reliant
and independent national economy” rule out foreign
competition?
Held: The constitutional policy of a “self-reliant and
independent national economy” does not necessarily rule
out the entry of foreign investments, goods and services.
It contemplates neither “economic seclusion” nor
“mendicancy in the international community.”
Aside from envisioning a trade policy based on “equality
and reciprocity,” the fundamental law encourages
industries that are “competitive in both domestic and
foreign markets,” thereby demonstrating a clear policy
against a sheltered domestic trade environment, but one
in favor of the gradual development of robust industries
that can compete with the best in the foreign markets.
(Tanada v. Angara, 272 SCRA 18 [1997])
43. Is PHILSECO (Philippine Shipyard and
Engineering Corporation), as a shipyard, a public utility
and, hence, could be operated only by a corporation at
least 60% of whose capital is owned by Filipino citizens in
accordance with Article XII, Section 10 of the
Constitution?
Held: Petitioner asserts that a shipyard is a public
utility pursuant to Section 13 (b) of Commonwealth Act
No. 146. Respondents, on the other hand, contend that
shipyards are no longer public utilities by express
provision of Presidential Decree No. 666, which provided
incentives to the shipbuilding and ship repair industry.
Indeed, P.D. No. 666 dated March 5, 1975
explicitly stated that a “shipyard” was not a “public utility.”
xxx
However, Section 1 of P.D. No. 666 was expressly
repealed by Section 20 of Batas Pambansa Blg. 391, the
Investment Incentive Policy Act of 1983. Subsequently,
Executive Order No. 226, the Omnibus Investments Code
of 1987, was issued and Section 85 thereof expressly
repealed B.P. Blg. 391.
The express repeal of B.P. Blg. 391 by E.O. No.
226 did not revive Section 1 of P.D. No. 666, declassifying
the shipbuilding and ship repair industry as a public utility,
as said executive order did not provide otherwise. When
a law which expressly repeals a prior law is itself repealed,
the law first repealed shall not be thereby revived unless
expressly so provided (Administrative Code of 1987, Book
I, Chapter 5, Section 21). Consequently, when the APT
[Asset Privatization Trust] drafted the ASBR [Asset
Specific Bidding Rules] sometime in 1993, P.D. No. 666
no longer existed in our statute books. While it is true
that the repeal of a statute does not operate to impair
rights that have become vested or accrued while the
statute was in force, there are no vested rights of the
parties that should be protected in the case at bar. The
reason is simple: said decree was already inexistent when
the ASBR was issued.
A shipyard such as PHILSECO being a public
utility as provided by law, the following provision of the
Article XII of the Constitution applies:
“Sec. 11. No franchise, certificate, or any other form of
authorization for the operation of a public utility shall be
granted except to citizens of the Philippines or to
corporations or associations organized under the laws of
the Philippines at least sixty per centum of whose capital
is owned by such citizens, nor shall such franchise,
certificate, or authorization be exclusive in character or
for a longer period than fifty years. Neither shall any such
franchise or right be granted except under the condition
that it shall be subject to amendment, alteration, or repeal
by the Congress when the common good so requires. The
State shall encourage equity participation in public utilities
by the general public. The participation of foreign
investors in the governing body of any public utility
enterprise shall be limited to their proportionate share in
its capital, and all the executive and managing officers of
such corporation or association shall be citizens of the
Philippines.”
The progenitor of this constitutional provision,
Article XIV, Section 5 of the 1973 Constitution, required
the same proportion of 60%-40% capitalization. The JVA
[Joint Venture Agreement] between NIDC [National
Investment and Development Corporation] and Kawasaki
[Kawasaki Heavy Industries, Ltd. of Kobe, Japan] entered
into on January 27, 1977 manifests the intention of the
parties to abide by the constitutional mandate on
capitalization of public utilities. x x x
A joint venture is an association of persons or companies
jointly undertaking some commercial enterprise with all
of them generally contributing assets and sharing risks.
x x x. Considered more of a partnership (Aurbach v.
Sanitary Wares Manufacturing Corporation, G.R. No.
75875, 180 SCRA 130, 147 [1989]), a joint venture is
governed by the laws on contracts and on partnership.
The joint venture created between NIDC and Kawasaki
falls within the purview of an “association” pursuant to
Section 5 of Article XIV of the 1973 Constitution and
Section 11 of Article XII of the 1987 Constitution.
Consequently, a joint venture that would engage in the
business of operating a public utility, such as a shipyard,
must observe the proportion of 60%-40% Filipino-
foreign capitalization. (JG Summit Holdings, Inc. v.
Court of Appeals, 345 SCRA 143, Nov. 20, 2000,
1st Div. [Ynares-Santiago])
The Rights of Indigenous Cultural
Communities/Indigenous Peoples
44. Does R.A. 8371, otherwise known as “the
Indigenous People’s Rights Act” infringe upon the State’s
ownership over the natural resources within the ancestral
domains?
Held: Petitioners posit that IPRA deprives the State of its
ownership over mineral lands of the public domain and
other natural resources, as well as the State’s full control
and supervision over the exploration, development and
utilization of natural resources. Specifically, petitioners
and the Solicitor General assail Sections 3[a], 5, and 7 of
IPRA as violative of Section 2, Article XII of the
Constitution which states, in part, that “[a]ll lands of the
public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State.” (Section 2,
Article XII, Constitution) They would have the Court
declare as unconstitutional Section 3[a] of IPRA because
the inclusion of natural resources in the definition of
ancestral domains purportedly results in the abdication of
State ownership over these resources.
Xxx
Section 3[a] merely defines the coverage of ancestral
domains, and describes the extent, limit and composition
of ancestral domains by setting forth the standards and
guidelines in determining whether a particular area is to
be considered as part of and within the ancestral
domains. In other words, Section 3[a] serves only as a
yardstick which points out what properties are within the
ancestral domains. It does not confer or recognize any
right of ownership over the natural resources to the
indigenous peoples. Its purpose is definitional and not
declarative of a right or title.
The specification of what areas belong to the
ancestral domains is, to our mind, important to ensure
that no unnecessary encroachment on private properties
outside the ancestral domains will result during the
delineation process. The mere fact that Section 3[a]
defines ancestral domains to include the natural resources
found therein does not ipso facto convert the character of
such natural resources as private property of the
indigenous peoples. Similarly, Section 5 in relation to
Section 3[a] cannot be construed as a source of
ownership rights of indigenous people over the natural
resources simply because it recognizes ancestral domains
as their “private but community property.”
The phrase “private but community property” is
merely descriptive of the indigenous peoples’ concept of
ownership as distinguished from that provided in the Civil
Code. x x x. In contrast, the indigenous peoples’ concept
of ownership emphasizes the importance of communal or
group ownership. By virtue of the communal character of
ownership, the property held in common “cannot be sold,
disposed or destroyed” because it was meant to benefit
the whole indigenous community and not merely the
individual member.
That IPRA is not intended to bestow ownership
over natural resources to the indigenous peoples is also
clear from the deliberations of the bicameral conference
committee on Section 7 which recites the rights of
indigenous peoples over their ancestral domains x x x.
Further, Section 7 makes no mention of any right
of ownership of the indigenous peoples over the natural
resources. In fact, Section 7[a] merely recognizes the
“right to claim ownership over lands, bodies of water
traditionally and actually occupied by indigenous peoples,
sacred places, traditional hunting and fishing grounds,
and all improvements made by them at any time within
the domains.” Neither does Section 7[b], which
enumerates certain rights of the indigenous peoples over
the natural resources found within their ancestral
domains, contain any recognition of ownership vis-à-vis
the natural resources.
What is evident is that the IPRA protects the
indigenous peoples’ rights and welfare in relation to the
natural resources found within their ancestral domains,
including the preservation of the ecological balance
therein and the need to ensure that the indigenous
peoples will not be unduly displaced when the State-
approved activities involving the natural resources located
therein are undertaken. (Separate Opinion, Kapunan,
J., in Cruz v. Secretary of Environment and Natural
Resources, 347 SCRA 128, 284-293, Dec. 6, 2000,
En Banc [Per Curiam])
45. Has the concept of native title to natural
resources, like native title to land, been recognized in the
Philippines?
Held: The concept of native title to natural
resources, unlike native title to land, has not been
recognized in the Philippines. NCIP and Flavier, et al.
invoke the case of Reavies v. Fianza (40 Phil. 1017 [1909],
215 US 16, 54 L Ed 72) in support of their thesis that
native title to natural resources has been upheld in this
jurisdiction. They insist that “it is possible for rights over
natural resources to vest on a private (as opposed to a
public) holder if these were held prior to the 1935
Constitution.” However, a judicious examination of
Reavies reveals that, contrary to the position of NCIP and
Flavier, et al., the Court did not recognize native title to
natural resources. Rather, it merely upheld the right of
the indigenous peoples to claim ownership of minerals
under the Philippine Bill of 1902.
While x x x native title to land or private
ownership by Filipinos of land by virtue of time
immemorial possession in the concept of an owner was
acknowledged and recognized as far back during the
Spanish colonization of the Philippines, there was no
similar favorable treatment as regards natural resources.
The unique value of natural resources has been
acknowledged by the State and is the underlying reason
for its consistent assertion of ownership and control over
said natural resources from the Spanish regime up to the
present. Natural resources, especially minerals, were
considered by Spain as an abundant source of revenue to
finance its battle in wars against other nations. Hence,
Spain, by asserting its ownership over minerals wherever
these may be found, whether in public or private lands,
recognized the separability of title over lands and that
over minerals which may be found therein (Noblejas,
Philippine Law on Natural Resources 1961 Revised Ed., p.
6).
On the other hand, the United States viewed
natural resources as a source of wealth for its nationals.
As the owner of natural resources over the Philippines
after the latter’s cession from Spain, the United States
saw it fit to allow both Filipino and American citizens to
explore and exploit minerals in public lands, and to grant
patents to private mineral lands. x x x. Although the
United States made a distinction between minerals found
in public lands and those found in private lands, title in
these minerals was in all cases sourced from the State.
The framers of the 1935 Constitution found it necessary
to maintain the State’s ownership over natural resources
to insure their conservation for future generations of
Filipinos, to prevent foreign control of the country through
economic domination; and to avoid situations whereby
the Philippines would become a source of international
conflicts, thereby posing danger to its internal security
and independence.
The declaration of State ownership and control
over minerals and other natural resources in the 1935
Constitution was reiterated in both the 1973 and 1987
Constitutions. (Separate Opinion, Kapunan, J., in
Cruz v. Secretary of Environment and Natural
Resources, 347 SCRA 128, 284-293, Dec. 6, 2000,
En Banc [Per Curiam])
46. Enumerate the Constitutional provisions
recognizing and protecting the rights and interests of the
indigenous peoples.
Held: The framers of the 1987 Constitution, looking back
to the long destitution of our less fortunate brothers,
fittingly saw the historic opportunity to actualize the ideals
of people empowerment and social justice, and to reach
out particularly to the marginalized sectors of society,
including the indigenous peoples. They incorporated in
the fundamental law several provisions recognizing and
protecting the rights and interests of the indigenous
peoples, to wit:
Section 22. The State recognizes and promotes the rights
of indigenous peoples within the framework of national
unity and development. (Article II of the Constitution,
entitled State Principles and Policies)
Section 5. The State, subject to the provisions of the
Constitution and national development policies and
programs, shall protect the rights of indigenous cultural
communities to their ancestral lands to ensure their
economic, social, and cultural well-being.
The Congress may provide for the applicability of
customary laws governing property rights and relations in
determining the ownership and extent of ancestral
domains. (Article XII of the Constitution, entitled National
Economy and Patrimony)
Section 1. The Congress shall give the highest priority to
the enactment of measures that protect and enhance the
right of all the people to human dignity, reduce social,
economic and political inequalities, and remove cultural
inequalities by equitably diffusing wealth and political
power for the common good.
To this end, the State shall regulate the acquisition,
ownership, use and disposition of property and its
increments. (Article XIII of the Constitution, entitled
Social Justice and Human Rights)
Section 6. The State shall apply the principles of agrarian
reform or stewardship, whenever applicable in
accordance with law, in the disposition and utilization of
other natural resources, including lands of the public
domain under lease or concession, subject to prior rights,
homestead rights of small settlers, and the rights of
indigenous communities to their ancestral lands. (Ibid.)
Section 17. The State shall recognize, respect, and protect
the rights of cultural communities to preserve and develop
their cultures, traditions, and institutions. It shall consider
these rights in the formulation of national plans and
policies. (Article XIV of the Constitution, entitled
Education, Science, Technology, Arts, Culture, and
Sports)
Section 12. The Congress may create a consultative body
to advise the President on policies affecting indigenous
cultural communities, the majority of the members of
which shall come from such communities. (Article XVI of
the Constitution, entitled General Provisions)
(Separate Opinion, Kapunan, J., in Isagani Cruz v.
Secretary of Environment and Natural Resources,
et al., G.R. No. 135385, Dec. 6, 2000, En Banc)
47. Discuss the Indigenous Peoples Rights Act (R.A.
No. 8371).
Held: Republic Act No. 8371 is entitled "An Act to
Recognize, Protect and Promote the Rights of Indigenous
Cultural Communities/Indigenous Peoples, Creating a
National Commission on Indigenous Peoples, Establishing
Implementing Mechanisms, Appropriating Funds
Therefor, and for Other Purposes." It is simply known as
"The Indigenous Peoples Rights Act of 1997" or the IPRA.
The IPRA recognizes the existence of the indigenous
cultural communities or indigenous peoples (ICCs/IPs) as
a distinct sector in Philippine society. It grants these
people the ownership and possession of their ancestral
domains and ancestral lands, and defines the extent of
these lands and domains. The ownership given is the
indigenous concept of ownership under customary law
which traces its origin to native title.
Xxx
Within their ancestral domains and ancestral lands, the
ICCs/IPs are given the right to self-governance and
empowerment (Sections 13 to 20), social justice and
human rights (Sections 21 to 28), the right to preserve
and protect their culture, traditions, institutions and
community intellectual rights, and the right to develop
their own sciences and technologies (Sections 29 to 37).
(Separate Opinion, Puno, J., in Isagani Cruz v.
Secretary of DENR, et al., G.R. No. 135385, Dec. 6,
2000, En Banc)
48. Define "indigenous peoples/indigenous cultural
communities."
Held: 1. Drawing inspiration from both our fundamental
law and international law, IPRA now employs the
politically-correct conjunctive term "indigenous
peoples/indigenous cultural communities" as follows:
Section 3. Definition of Terms. - For purposes of this Act,
the following terms shall mean:
(i) Indigenous peoples/Indigenous cultural
communities. - refer to a group of people or homogenous
societies identified by self-ascription and ascription by
others, who have continuously lived as organized
community on communally bounded and defined
territory, and who have, under claims of ownership since
time immemorial, occupied, possessed and utilized such
territories, sharing common bonds of language, customs,
traditions, and other distinctive cultural traits, or who
have, through resistance to political, social and cultural
inroads of colonization, non-indigenous religions and
cultures, became historically differentiated from the
majority of Filipinos. Indigenous peoples shall likewise
include peoples who are regarded as indigenous on
account of their descent from the populations which
inhabited the country at the time of conquest or
colonization, or at the time of inroads of non-indigenous
religions and cultures, or the establishment of present
State boundaries, who retain some or all of their own
social, economic, cultural and political institutions, but
who may have been displaced from their traditional
domains or who may have resettled outside their
ancestral domains x x x.
(Separate Opinion, Kapunan, J., in Isagani Cruz
v. Secretary of Environment and Natural
Resources, et al., G.R. No. 135385, Dec. 6, 2000,
En Banc)
2. The IPRA is a law dealing with a specific group of
people, i.e., the Indigenous Cultural Communities (ICCs)
or the Indigenous Peoples (IPs). The term "ICCs" is used
in the 1987 Constitution while that of "IPs" is the
contemporary international language in the International
Labor Organization (ILO) Convention 169 (Convention
Concerning Indigenous and Tribal Peoples in Independent
Countries, June 27, 1989) and the United Nations (UN)
Draft Declaration on the Rights of Indigenous Peoples
(Guide to R.A. 8371, published by the Coalition for IPs
Rights and Ancestral Domains in cooperation with the ILO
and Bilance-Asia Department, p. 4 [1999] - hereinafter
referred to as Guide to R.A. 8371).
Indigenous Cultural Communities or Indigenous Peoples
refer to a group of people or homogeneous societies who
have continuously lived as an organized community on
communally bounded and defined territory. These groups
of people have actually occupied, possessed and utilized
their territories under claim of ownership since time
immemorial. They share common bonds of language,
customs, traditions and other distinctive cultural traits, or,
they, by their resistance to political, social and cultural
inroads of colonization, non-indigenous religions and
cultures, became historically differentiated from the
Filipino majority. ICCs/IPs also include descendants of
ICCs/IPs who inhabited the country at the time of
conquest or colonization, who retain some or all of their
own social, economic, cultural and political institutions but
who may have been displaced from their traditional
territories or who may have resettled outside their
ancestral domains. (Separate Opinion, Puno, J., in
Isagani Cruz v. Secretary of DENR, et al., G.R. No.
135385, Dec. 6, 2000, En Banc)
49. Define "ancestral domains" and "ancestral lands."
Do they constitute part of the land of the public domain?
Held: Ancestral domains and ancestral lands are the
private property of indigenous peoples and do not
constitute part of the land of the public domain.
The IPRA grants to ICCs/IPs a distinct kind of ownership
over ancestral domains and ancestral lands. Ancestral
lands are not the same as ancestral domains. These are
defined in Section 3(a) and (b) of the Indigenous Peoples
Rights Act x x x.
Ancestral domains are all areas belonging to ICCs/IPs held
under a claim of ownership, occupied or possessed by
ICCs/IPs by themselves or through their ancestors,
communally or individually since time immemorial,
continuously until the present, except when interrupted
by war, force majeure or displacement by force, deceit,
stealth or as a consequence of government projects or
any other voluntary dealings with government and/or
private individuals or corporations. Ancestral domains
comprise lands, inland waters, coastal areas, and natural
resources therein and includes ancestral lands, forests,
pasture, residential, agricultural, and other lands
individually owned whether alienable or not, hunting
grounds, burial grounds, worship areas, bodies of water,
mineral and other natural resources. They also include
lands which may no longer be exclusively occupied by
ICCs/IPs but from which they traditionally had access to
for their subsistence and traditional activities, particularly
the home ranges of ICCs/IPs who are still nomadic and/or
shifting cultivators (Section 3[a], IPRA).
Ancestral lands are lands held by the ICCs/IPs under the
same conditions as ancestral domains except that these
are limited to lands and that these lands are not merely
occupied and possessed but are also utilized by the
ICCs/IPs under claims of individual or traditional group
ownership. These lands include but are not limited to
residential lots, rice terraces or paddies, private forests,
swidden farms and tree lots (Section 3[b], IPRA).
(Separate Opinion, Puno, J., in Isagani Cruz v.
Secretary of DENR, et al., G.R. No. 135385, Dec. 6,
2000, En Banc)
50. How may ICCs/IPs acquire rights to their
ancestral domains and ancestral lands?
Held: The rights of the ICCs/IPs to their ancestral
domains and ancestral lands may be acquired in two
modes: (1) by native title over both ancestral lands and
domains; or (2) by torrens title under the Public Land Act
and the Land Registration Act with respect to ancestral
lands only. (Separate Opinion, Puno, J., in Isagani
Cruz v. Secretary of DENR, et al., G.R. No. 135385,
Dec. 6, 2000, En Banc)
51. What is the concept of "native title"? What is a
Certificate of Ancestral Domain Title (CADT)?
Held: Native title refers to ICCs/IPs preconquest rights
to lands and domains held under a claim of private
ownership as far back as memory reaches. These lands
are deemed never to have been public lands and are
indisputably presumed to have been held that way since
before the Spanish Conquest. The rights of ICCs/IPs to
their ancestral domains (which also include ancestral
lands) by virtue of native title shall be recognized and
respected (Section 11, IPRA). Formal recognition, when
solicited by ICCs/IPs concerned, shall be embodied in a
Certificate of Ancestral Domain Title (CADT), which shall
recognize the title of the concerned ICCs/IPs over the
territories identified and delineated.
Like a torrens title, a CADT is evidence of private
ownership of land by native title. Native title, however, is
a right of private ownership peculiarly granted to ICCs/IPs
over their ancestral lands and domains. The IPRA
categorically declares ancestral lands and domains held
by native title as never to have been public land. Domains
and lands held under native title are, therefore,
indisputably presumed to have never been public lands
and are private.
The concept of native title in the IPRA was taken from the
1909 case of Carino v. Insular Government (41 Phil. 935
[1909], 212 U.S. 449, 53 L. Ed. 594). Carino firmly
established a concept of private land title that existed
irrespective of any royal grant from the State. (Separate
Opinion, Puno, J., in Isagani Cruz v. Secretary of
DENR, et al., G.R. No. 135385, Dec. 6, 2000, En
Banc)
53. Distinguish ownership of land under native title
and ownership by acquisitive prescription against the
State.
Held: Ownership by virtue of native title presupposes
that the land has been held by its possessor and his
predecessor-in-interest in the concept of an owner since
time immemorial. The land is not acquired from the
State, that is, Spain or its successor-in-interest, the United
States and the Philippine Government. There has been
no transfer of title from the State as the land has been
regarded as private in character as far back as memory
goes. In contrast, ownership of land by acquisitive
prescription against the State involves a conversion of the
character of the property from alienable public land to
private land, which presupposes a transfer of title from
the State to a private person. (Separate Opinion,
Kapunan, J., in Isagani Cruz v. Secretary of DENR,
G.R. No. 135385, Dec. 6, 2000, En Banc)
The Right of the State to Recover Properties Unlawfully
Acquired by Public Officials or Employees
54. Does the right of the State to recover properties
unlawfully acquired by public officials or employees which
may not be barred by prescription, laches, or estoppel
under Section 15, Article XI of the Constitution apply to
criminal cases for the recovery of ill-gotten wealth?
Held: Section 15, Article XI, 1987 Constitution provides
that “[T]he right of the State to recover properties
unlawfully acquired by public officials or employees, from
them or from their nominees as transferees, shall not be
barred by prescription, laches, or estoppel.” From the
proceedings of the Constitutional Commission of 1986,
however, it was clear that this provision applies only to
civil actions for recovery of ill-gotten wealth, and not to
criminal cases. Thus, the prosecution of offenses arising
from, relating or incident to, or involving ill-gotten wealth
contemplated in Section 15, Article XI of the Constitution
may be barred by prescription. (Presidential Ad Hoc
Fact-Finding Committee on Behest Loans, et al. v.
Hon. Aniano A. Desierto, et al., G.R. No. 130140,
Oct. 25, 1999, En Banc [Davide, C.J.])
STRUCTURE OF GOVERNMENT
The Doctrine of Separation of Powers
55. May the Government, through the PCGG, validly
bind itself to cause the dismissal of all cases against the
Marcos heirs pending before the Sandiganbayan and
other courts in a Compromise Agreement entered into
between the former and the latter?
Held: This is a direct encroachment on judicial power,
particularly in regard to criminal jurisdiction. Well-settled
is the doctrine that once a case has been filed before a
court of competent jurisdiction, the matter of its dismissal
or pursuance lies within the full discretion and control of
the judge. In a criminal case, the manner in which the
prosecution is handled, including the matter of whom to
present as witnesses, may lie within the sound discretion
of the government prosecutor; but the court decides,
based on the evidence proffered, in what manner it will
dispose of the case. Jurisdiction, once acquired by the
trial court, is not lost despite a resolution, even by the
justice secretary, to withdraw the information or to
dismiss the complaint. The prosecution’s motion to
withdraw or to dismiss is not the least binding upon the
court. On the contrary, decisional rules require the trial
court to make its own evaluation of the merits of the case,
because granting such motion is equivalent to effecting a
disposition of the case itself.
Thus, the PCGG, as the government prosecutor of ill-
gotten wealth cases, cannot guarantee the dismissal of all
such criminal cases against the Marcoses pending in the
courts, for said dismissal is not within its sole power and
discretion. (Chavez v. PCGG, 299 SCRA 744, Dec. 9,
1998 [Panganiban])
Delegation of Powers
56. What are the tests of a valid delegation of power?
Held: Empowering the COMELEC, an administrative body
exercising quasi-judicial functions, to promulgate rules
and regulations is a form of delegation of legislative
authority x x x. However, in every case of permissible
delegation, there must be a showing that the delegation
itself is valid. It is valid only if the law (a) is complete in
itself, setting forth therein the policy to be executed,
carried out, or implemented by the delegate; and (b) fixes
a standard – the limits of which are sufficiently
determinate and determinable – to which the delegate
must conform in the performance of his functions . A
sufficient standard is one which defines legislative policy,
marks its limits, maps out its boundaries and specifies the
public agency to apply it. It indicates the circumstances
under which the legislative command is to be effected .
(Santiago v. COMELEC, 270 SCRA 106, March 19,
1997)
The Legislative Department
57. May the Supreme Court properly inquire into the
motives of the lawmakers in conducting legislative
investigations? Can it enjoin the Congress or any of its
regular and special committees from making inquiries in
aid of legislation?
Held: In its comment, respondent Committee
claims that this Court cannot properly inquire into the
motives of the lawmakers in conducting legislative
investigations, much less can it enjoin the Congress or
any of its regular and special committees x x x from
making inquiries in aid of legislation, under the doctrine
of separation of powers, which obtains in our present
system of government.
The contention is untenable. X x x
The “allocation of constitutional boundaries” is a
task that this Court must perform under the Constitution.
Moreover, as held in a recent case (Neptali A. Gonzales,
et al. v. Hon. Catalino Macaraig, Jr., et al., G.R. No.
87636, 19 November 1990, 191 SCRA 452, 463) , “[t]he
political question doctrine neither interposes an obstacle
to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has been
given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said
provision by no means does away with the applicability of
the principle in appropriate cases.” (Section 1, Article VIII
of the 1987 Constitution)
The Court is thus of the considered view that it
has jurisdiction over the present controversy for the
purpose of determining the scope and extent of the power
of the Senate Blue Ribbon Committee to conduct inquires
into private affairs in purported aid of legislation.
(Bengzon, Jr. v. Senate Blue Ribbon Committee,
203 SCRA 767, Nov. 20, 1991, En Banc [Padilla])
58. Is the power of both houses of Congress to
conduct inquiries in aid of legislation absolute or
unlimited?
Held: The 1987 Constitution expressly
recognizes the power of both houses of Congress to
conduct inquiries in aid of legislation (In Arnault v.
Nazareno, 87 Phil. 29, this Court held that although there
was no express provision in the 1935 Constitution giving
such power to both houses of Congress, it was so
incidental to the legislative function as to be implied.).
Thus, Section 21, Article VI provides x x x.
The power of both houses of Congress to conduct
inquiries in aid of legislation is not, therefore, absolute or
unlimited. Its exercise is circumscribed by the afore-
quoted provision of the Constitution. Thus, as provided
therein, the investigation must be “in aid of legislation in
accordance with its duly published rules of procedure”
and that “the rights of persons appearing in or affected
by such inquiries shall be respected.” It follows then that
the rights of persons under the Bill of Rights must be
respected, including the right to due process and the right
not to be compelled to testify against one’s self.
The power to conduct formal inquiries or
investigations is specifically provided for in Sec. 1 of the
Senate Rules of Procedure Governing Inquiries in Aid of
Legislation. Such inquiries may refer to the
implementation or re-examination of any law or in
connection with any proposed legislation or the
formulation of future legislation. They may also extend
to any and all matters vested by the Constitution in
Congress and/or in the Senate alone.
As held in Jean L. Arnault v. Leon Nazareno, et
al, (No. L-3820, July 18, 1950, 87 Phil. 29), the inquiry,
to be within the jurisdiction of the legislative body making
it, must be material or necessary to the exercise of a
power in it vested by the Constitution, such as to legislate
or to expel a member.
Under Sec. 4 of the aforementioned Rules, the
Senate may refer to any committee or committees any
speech or resolution filed by any Senator which in its
judgment requires an appropriate inquiry in aid of
legislation. In order therefore to ascertain the character
or nature of an inquiry, resort must be had to the speech
or resolution under which such an inquiry is proposed to
be made. (Bengzon, Jr. v. Senate Blue Ribbon
Committee, 203 SCRA 767, Nov. 20, 1991, En Banc
[Padilla])
59. On 13 September 1988, the Senate Minority
Floor Leader, Hon. Juan Ponce Enrile delivered a speech
“on a matter of personal privilege” before the Senate on
the alleged “take-over of SOLOIL Incorporated, the
flagship on the First Manila Management of Companies
(FMMC) by Ricardo Lopa” and called upon “the Senate to
look into the possible violation of the law in the case,
particularly with regard to Republic Act No. 3019, the
Anti-Graft and Corrupt Practices Act.”
On motion of Senator Orlando Mercado, the
matter was referred by the Senate to the Committee on
Accountability of Public Officers (Blue Ribbon Committee).
Thereafter, the Senate Blue Ribbon Committee started its
investigation on the matter. Petitioners and Ricardo Lopa
were subpoenaed by the Committee to appear before it
and testify on “what they know” regarding the “sale of the
thirty-six (36) corporations belonging to Benjamin ‘Kokoy’
Romualdez.”
At the hearing held on 23 May 1989, Ricardo Lopa
declined to testify on the ground that his testimony may
“unduly prejudice” the defendants in Civil Case No. 0035
before the Sandiganbayan. Petitioner Jose F.S. Bengzon,
Jr. likewise refused to testify invoking his constitutional
right to due process, and averring that the publicity
generated by respondent Committee’s inquiry could
adversely affect his rights as well as those of the other
petitioners who are his co-defendants in Civil Case No.
0035 before the Sandiganbayan.
The Senate Blue Ribbon Committee, thereupon,
suspended its inquiry and directed the petitioners to file
their memorandum on the constitutional issues raised,
after which, it issued a resolution dated 5 June 1989
rejecting the petitioners’ plea to be excused from
testifying, and the Committee voted to pursue and
continue its investigation of the matter. X x x
Claiming that the Senate Blue Ribbon Committee
is poised to subpoena and require their attendance and
testimony in proceedings before the Committee, in excess
of its jurisdiction and legislative rights, and that there is
no appeal nor any other plain, speedy and adequate
remedy in the ordinary course of law, the petitioners filed
the present petition for prohibition with a prayer for
temporary restraining order and/or injunctive relief.
Held: A perusal of the speech of Senator Enrile
reveals that he (Senator Enrile) made a statement which
was published in various newspapers on 2 September
1988 accusing Mr. Ricardo “Baby” Lopa of “having taken
over the FMMC Group of Companies.” X x x
Verily, the speech of Senator Enrile contained no
suggestion of contemplated legislation; he merely called
upon the Senate to look into a possible violation of Sec. 5
of RA No. 3019, otherwise known as “The Anti-Graft and
Corrupt Practices Act.” In other words, the purpose of
the inquiry to be conducted by respondent Blue Ribbon
Committee was to find out whether or not the relatives of
President Aquino, particularly Mr. Ricardo Lopa, had
violated the law in connection with the alleged sale of the
36 or 39 corporations belonging to Benjamin “Kokoy”
Romualdez to the Lopa Group. There appears to be,
therefore, no intended legislation involved.
Xxx
It appears, therefore, that the contemplated
inquiry by respondent Committee is not really “in aid of
legislation” because it is not related to a purpose within
the jurisdiction of Congress, since the aim of the
investigation is to find out whether or not the relatives of
the President or Mr. Ricardo Lopa had violated Section 5
of RA No. 3019, the “Anti-Graft and Corrupt Practices
Act”, a matter that appears more within the province of
the courts rather than of the legislature. Besides, the
Court may take judicial notice that Mr. Ricardo Lopa died
during the pendency of this case. In John T. Watkins v.
United States (354 U.S. 178, 1 L. ed. 2D 1273 [1957]), it
was held:
“x x x. The power of Congress to conduct inquiries in aid
of legislation is inherent in the legislative process. That
power is broad. It encompasses inquiries concerning the
administration of existing laws as well as proposed or
possibly needed statutes. It includes surveys of defects
in our social, economic, or political system for the purpose
of enabling Congress to remedy them. It comprehends
probes into departments of the Federal Government to
expose corruption, inefficiency or waste. But broad as is
this power of inquiry, it is not unlimited. There is no
general authority to expose the private affairs of
individuals without justification in terms of the functions
of Congress. This was freely conceded by the Solicitor
General in his arguments in this case. Nor is the Congress
a law enforcement or trial agency. These are functions
of the executive and judicial departments of government.
No inquiry is an end in itself; it must be related to and in
furtherance of a legislative task of Congress.
Investigations conducted solely for the personal
aggrandizement of the investigators or to ‘punish’ those
investigated are indefensible.” (italics supplied)
It cannot be overlooked that when respondent
Committee decided to conduct its investigation of the
petitioners, the complaint in Civil Case No. 0035 had
already been filed with the Sandiganbayan. A perusal of
that complaint shows that one of its principal causes of
action against herein petitioners, as defendants therein,
is the alleged sale of the 36 (or 39) corporations belonging
to Benjamin “Kokoy” Romualdez. Since the issues in said
complaint had long been joined by the filing of petitioners’
respective answers thereto, the issue sought to be
investigated by the respondent Committee is one over
which jurisdiction had been acquired by the
Sandiganbayan. In short, the issue has been pre-empted
by that court. To allow the respondent Committee to
conduct its own investigation of an issue already before
the Sandiganbayan would not only pose the possibility of
conflicting judgments between a legislative committee
and a judicial tribunal, but if the Committee’s judgment
were to be reached before that of the Sandiganbayan, the
possibility of its influence being made to bear on the
ultimate judgment of the Sandiganbayan can not be
discounted.
In fine, for the respondent Committee to probe and
inquire into the same justiciable controversy already
before the Sandiganbayan, would be an encroachment
into the exclusive domain of judicial jurisdiction that had
 (Bengzon, Jr. v. Senate Blue
much earlier set in.
Ribbon Committee, 203 SCRA 767, Nov. 20, 1991,
En Banc [Padilla])
60. Petitioners’ contention is that Republic Act No.
7716 (The Expanded-VAT Law) did not “originate
exclusively” in the House of Representatives as required
by Art. VI, Sec. 24 of the Constitution, because it is in fact
the result of the consolidation of two distinct bills, H. No.
11197 and S. No. 1630. In this connection, petitioners
point out that although Art. VI, Sec. 24 was adopted from
the American Federal Constitution, it is notable in two
respects: the verb “shall originate” is qualified in the
Philippine Constitution by the word “exclusively” and the
phrase “as on other bills” in the American version is
omitted. This means, according to them, that to be
considered as having originated in the House, Republic
Act No. 7716 must retain the essence of H. No. 11197.
Held: This argument will not bear analysis. To
begin with, it is not the law - but the revenue bill - which
is required by the Constitution to “originate exclusively” in
the House of Representatives. It is important to
emphasize this, because a bill originating in the House
may undergo such extensive changes in the Senate that
the result may be a rewriting of the whole. The possibility
of a third version by the conference committee will be
discussed later. At this point, what is important to note
is that, as a result of the Senate action, a distinct bill may
be produced. To insist that a revenue statute - and not
only the bill which initiated the legislative process
culminating in the enactment of the law - must
substantially be the same as the House bill would be to
deny the Senate's power not only to “concur with
amendments” but also to “propose amendments.” It
would be to violate the coequality of legislative power of
the two houses of Congress and in fact make the House
superior to the Senate.
The contention that the constitutional design is to
limit the Senate's power in respect of revenue bills in
order to compensate for the grant to the Senate of the
treaty-ratifying power (Art. VII, Sec. 21) and thereby
equalize its powers and those of the House overlooks the
fact that the powers being compared are different. We
are dealing here with the legislative power which under
the Constitution is vested not only in any particular
chamber but in the Congress of the Philippines, consisting
of “a Senate and a House of Representatives.” (Art. VI,
Sec. 1) The exercise of the treaty-ratifying power is not
the exercise of legislative power. It is the exercise of a
check on the executive power. There is, therefore, no
justification for comparing the legislative powers of the
House and of the Senate on the basis of the possession
of a similar non-legislative power by the Senate. The
possession of a similar power by the U.S. Senate has
never been thought of as giving it more legislative powers
than the House of Representatives.
X x x Given, then, the power of the Senate to
propose amendments, the Senate can propose its own
version even with respect to bills which are required by
the Constitution to originate in the House.
It is insisted, however, that S. No. 1630 was
passed not in substitution of H. No. 11197 but of another
Senate bill (S. No. 1129) earlier filed and that what the
Senate did was merely to “take (H. No. 11197) into
consideration” in enacting S. No. 1630. There is really no
difference between the Senate preserving H. No. 11197
up to the enacting clause and then writing its own version
following the enacting clause (which, it would seem,
petitioners admit is an amendment by substitution), and,
on the other hand, separately presenting a bill of its own
on the same subject matter. In either case the result are
two bills on the same subject.
Indeed, what the Constitution simply means is
that the initiative for filing revenue, tariff, or tax bills, bills
authorizing an increase of the public debt, private bills and
bills of local application must come from the House of
Representatives on the theory that, elected as they are
from the districts, the members of the House can be
expected to be more sensitive to the local needs and
problems. On the other hand, the senators, who are
elected at large, are expected to approach the same
problems from the national perspective. Both views are
thereby made to bear on the enactment of such laws.
Nor does the Constitution prohibit the filing in
the Senate of a substitute bill in anticipation of its
receipt of the bill from the House, so long as action by
the Senate as a body is withheld pending receipt of the
House bill. The Court cannot, therefore, understand the
alarm expressed over the fact that on March 1, 1993,
eight months before the House passed H. No. 11197, S.
No. 1129 had been filed in the Senate. After all it does
not appear that the Senate ever considered it. It was
only after the Senate had received H. No. 11197 on
November 23, 1993 that the process of legislation in
respect of it began with the referral to the Senate
Committee on Ways and Means of H. No. 11197 and the
submission by the Committee on February 7, 1994 of S.
No. 1630. For that matter, if the question were simply
the priority in the time of filing of bills, the fact is that it
was in the House that a bill (H. No. 253) to amend the
VAT law was first filed on July 22, 1992. Several other
bills had been filed in the House before S. No. 1129 was
filed in the Senate, and H. No. 11197 was only a
substitute of those earlier bills. (Tolentino v.
Secretary of Finance, 235 SCRA 630, 661-663,
Aug. 25, 1994, En Banc [Mendoza])
61. Discuss the nature of the Party-List system. Is it,
without any qualification, open to all?
Held: 1. The party-list system is a social justice tool
designed not only to give more law to the great masses
of our people who have less in life, but also to enable
them to become veritable lawmakers themselves,
empowered to participate directly in the enactment of
laws designed to benefit them. It intends to make the
marginalized and the underrepresented not merely
passive recipients of the State’s benevolence, but active
participants in the mainstream of representative
democracy. Thus, allowing all individuals and groups,
including those which now dominate district elections, to
have the same opportunity to participate in party-list
elections would desecrate this lofty objective and
mongrelize the social justice mechanism into an atrocious
veneer for traditional politics. (Ang Bagong Bayani –
OFW Labor Party v. COMELEC, G.R. No. 147589,
June 26, 2001, En Banc [Panganiban])
2. Crucial to the resolution of this case is the fundamental
social justice principle that those who have less in life
should have more in law. The party-list system is one
such tool intended to benefit those who have less in life.
It gives the great masses of our people genuine hope and
genuine power. It is a message to the destitute and the
prejudiced, and even to those in the underground, that
change is possible. It is an invitation for them to come
out of their limbo and seize the opportunity.
Clearly, therefore, the Court cannot accept the
submissions x x x that the party-list system is, without
any qualification, open to all. Such position does not only
weaken the electoral chances of the marginalized and
underrepresented; it also prejudices them. It would gut
the substance of the party-list system. Instead of
generating hope, it would create a mirage. Instead of
enabling the marginalized, it would further weaken them
and aggravate their marginalization. (Ang Bagong
Bayani – OFW Labor Party v. COMELEC, G.R. No.
147589, June 26, 2001, En Banc [Panganiban])
62. Are political parties – even the major ones –
prohibited from participating in the party-list elections?
Held: Under the Constitution and RA 7941, private
respondents cannot be disqualified from the party-list
elections, merely on the ground that they are political
parties. Section 5, Article VI of the Constitution, provides
that members of the House of Representatives may “be
elected through a party-list system of registered national,
regional, and sectoral parties or organizations.
Furthermore, under Sections 7 and 8, Article IX [C] of the
Constitution, political parties may be registered under the
party-list system. X x x
During the deliberations in the Constitutional Commission,
Comm. Christian S. Monsod pointed out that the
participants in the party-list system may “be a regional
party, a sectoral party, a national party, UNIDO,
Magsasaka, or a regional party in Mindanao.” x x x.
Indeed, Commissioner Monsod stated that the purpose of
the party-list provision was to open up the system, in
order to give a chance to parties that consistently place
third or fourth in congressional district elections to win a
seat in Congress. He explained: “The purpose of this is
to open the system. In the past elections, we found out
that there were certain groups or parties that, if we count
their votes nationwide, have about 1,000,000 or
1,500,000 votes. But they were always third or fourth
place in each of the districts. So, they have no voice in
the Assembly. But this way, they would have five or six
representatives in the assembly even if they would not
win individually in legislative districts. So, that is
essentially the mechanics, the purpose and objective of
the party-list system.”
For its part, Section 2 of RA 7941 also provides for “a
party-list system of registered national, regional and
sectoral parties or organizations or coalitions thereof, x x
x.” Section 3 expressly states that a “party” is “either a
political party or a sectoral party or a coalition of parties.”
More to the point, the law defines “political party” as “an
organized group of citizens advocating an ideology or
platform, principles and policies for the general conduct
of government and which, as the most immediate means
of securing their adoption, regularly nominates and
supports certain of its leaders and members as candidates
for public office.”
Furthermore, Section 11 of RA 7941 leaves no doubt as
to the participation of political parties in the party-list
system. X x x
Indubitably, therefore, political parties – even the major
ones – may participate in the party-list elections.
That political parties may participate in the party-list
elections does not mean, however, that any political party
– or any organization or group for that matter – may do
so. The requisite character of these parties or
organizations must be consistent with the purpose of the
party-list system, as laid down in the Constitution and RA
7941. X x x (Ang Bagong Bayani – OFW Labor Party
v. COMELEC, G.R. No. 147589, June 26, 2001, En
Banc [Panganiban])
63. Who are the marginalized and underrepresented
sectors to be represented under the party-list system?
Held: The marginalized and underrepresented sectors to
be represented under the party-list system are
enumerated in Section 5 of RA 7941 x x x.
While the enumeration of marginalized and
underrepresented sectors is not exclusive, it
demonstrates the clear intent of the law that not all
sectors can be represented under the party-list system. X
xx
[W]e stress that the party-list system seeks to enable
certain Filipino citizens – specifically those belonging to
marginalized and underrepresented sectors,
organizations and parties – to be elected to the House of
Representatives. The assertion x x x that the party-list
system is not exclusive to the marginalized and
underrepresented disregards the clear statutory policy.
Its claim that even the super-rich and overrepresented
can participate desecrates the spirit of the party-list
system.
Indeed, the law crafted to address the peculiar
disadvantage of Payatas hovel dwellers cannot be
appropriated by the mansion owners of Forbes Park. The
interests of these two sectors are manifestly disparate;
hence, the x x x position to treat them similarly defies
reason and common sense. X x x
While the business moguls and the mega-rich are,
numerically speaking, a tiny minority, they are neither
marginalized nor underrepresented, for the stark reality is
that their economic clout engenders political power more
awesome than their numerical limitation. Traditionally,
political power does not necessarily emanate from the size
of one’s constituency; indeed, it is likely to arise more
directly from the number and amount of one’s bank
accounts.
It is ironic, therefore, that the marginalized and
underrepresented in our midst are the majority who
wallow in poverty, destitution and infirmity. It was for
them that the party-list system was enacted – to give
them not only genuine hope, but genuine power; to give
them opportunity to be elected and to represent the
specific concerns of their constituencies; and simply to
give them a direct vote in Congress and in the larger
affairs of the State. In its noblest sense, the party-list
system truly empowers the masses and ushers a new
hope for genuine change. Verily, it invites those
marginalized and underrepresented in the past – the
farm hands, the fisher folk, the urban poor, even those in
the underground movement – to come out and
participate, as indeed many of them came out and
participated during the last elections. The State cannot
now disappoint and frustrate them by disabling the
desecrating this social justice vehicle.
Because the marginalized and underrepresented had not
been able to win in the congressional district elections
normally dominated by traditional politicians and vested
groups, 20 percent of the seats in the House of
Representatives were set aside for the party-list system.
In arguing that even those sectors who normally
controlled 80 percent of the seats in the House could
participate in the party-list elections for the remaining 20
percent, the OSG and the Comelec disregard the
fundamental difference between the congressional district
elections and the party-list elections.
As earlier noted, the purpose of the party-list provision
was to open up the system, in order to enhance the
chance of sectoral groups and organizations to gain
representation in the House of Representatives through
the simplest scheme possible. Logic shows that the
system has been opened to those who have never gotten
a foothold within it – those who cannot otherwise win in
regular elections and who therefore need the “simplest
scheme possible” to do so. Conversely, it would be
illogical to open the system to those who have long been
within it – those privileged sectors that have long
dominated the congressional district elections.
Xxx
Verily, allowing the non-marginalized and
overrepresented to vie for the remaining seats under the
party-list system would not only dilute, but also prejudice
the chance of the marginalized and underrepresented,
contrary to the intention of the law to enhance it. The
party-list system is a tool for the benefit of the
underprivileged; the law could not have given the same
tool to others, to the prejudice of the intended
beneficiaries. (Ang Bagong Bayani – OFW Labor
Party v. COMELEC, G.R. No. 147589, June 26, 2001,
En Banc [Panganiban])
64. Section 5(2), Article VI of the Constitution
provides that "[t]he party-list representatives shall
constitute twenty per centum of the total number of
representatives including those under the party-list."
Does the Constitution require all such allocated seats to
be filled up all the time and under all circumstances?
Held: The Constitution simply states that "[t]he party-
list representatives shall constitute twenty per centum of
the total number of representatives including those under
the party-list."
Xxx
We rule that a simple reading of Section 5, Article VI of
the Constitution, easily conveys the equally simple
message that Congress was vested with the broad power
to define and prescribe the mechanics of the party-list
system of representation. The Constitution explicitly sets
down only the percentage of the total membership in the
House of Representatives reserved for party-list
representatives.
In the exercise of its constitutional prerogative, Congress
enacted RA 7941. As said earlier, Congress declared
therein a policy to promote "proportional representation"
in the election of party-list representatives in order to
enable Filipinos belonging to the marginalized and
underrepresented sectors to contribute legislation that
would benefit them. It however deemed it necessary to
require parties, organizations and coalitions participating
in the system to obtain at least two percent of the total
votes cast for the party-list system in order to be entitled
to a party-list seat. Those garnering more than this
percentage could have "additional seats in proportion to
their total number of votes." Furthermore, no winning
party, organization or coalition can have more than three
seats in the House of Representatives. X x x
Considering the foregoing statutory requirements, it will
be shown x x x that Section 5(2), Article VI of the
Constitution is not mandatory. It merely provides a
ceiling for party-list seats in Congress. (Veterans
Federation Party v. COMELEC, G.R. No. 136781,
Oct. 6, 2000, En Banc [Panganiban])
65. What are the inviolable parameters to determine
the winners in a Philippine-style party-list election?
Held: To determine the winners in a Philippine-style
party-list election, the Constitution and Republic Act No.
7941 mandate at least four inviolable parameters. These
are:
First, the twenty percent allocation - the combined
number of all party-list congressmen shall not exceed
twenty percent of the total membership of the House of
Representatives, including those elected under the party
list.
Second, the two percent threshold - only those
garnering a minimum of two percent of the total valid
votes cast for the party-list system are "qualified" to have
a seat in the House of Representatives.
Third, the three seat limit - each qualified party,
regardless of the number of votes it actually obtained, is
entitled to a maximum of three seats; that is, one
"qualifying" and two additional seats.
Fourth, proportional representation - the additional
seats which a qualified party is entitled to shall be
computed "in proportion to their total number of votes."
(Veterans Federation Party v. COMELEC, G.R. No.
136781 and Companion Cases, Oct. 6, 2000, En
Banc [Panganiban])
66. State the guidelines for screening Party-List
Participants.
Held: In this light, the Court finds it appropriate to lay
down the following guidelines, culled from the law and
the Constitution, to assist the Comelec in its work.
First, the political party, sector, organization or coalition
must represent the marginalized and underrepresented
groups identified in Section 5 of RA 7941. In other words,
it must show – through its constitution, articles of
incorporation, bylaws, history, platform of government
and track record – that it represents and seeks to uplift
marginalized and underrepresented sectors. Verily,
majority of its membership should belong to the
marginalized and underrepresented. And it must
demonstrate that in a conflict of interest, it has chosen or
is likely to choose the interest of such sectors.
Second, while even major political parties are expressly
allowed by RA 7941 and the Constitution to participate in
the party-list system, they must comply with the declared
statutory policy of enabling “Filipino citizens belonging to
marginalized and underrepresented sectors x x x to be
elected to the House of Representatives.” In other words,
while they are not disqualified merely on the ground that
they are political parties, they must show, however, that
they represent the interests of the marginalized and
underrepresented. X x x.
Third, in view of the objections directed against the
registration of Ang Buhay Hayaang Yumabong, which is
allegedly a religious group, the Court notes the express
constitutional provision that the religious sector may not
be represented in the party-list system. x x x
Furthermore, the Constitution provides that “religious
denominations and sects shall not be registered.” (Sec. 2
[5], Article IX [C]) The prohibition was explained by a
member of the Constitutional Commission in this wise:
“[T]he prohibition is on any religious organization
registering as a political party. I do not see any
prohibition here against a priest running as a candidate.
That is not prohibited here; it is the registration of a
religious sect as a political party.”
Fourth, a party or an organization must not be disqualified
under Section 6 of RA 7941, which enumerates the
grounds for disqualification as follows:
1) It is a religious sect or denomination,
organization or association organized for religious
purposes;
2) It advocates violence or unlawful means to
seek its goal;
3) It is a foreign party or organization;
4) It is receiving support from any foreign
government, foreign political party, foundation,
organization, whether directly or through any of its
officers or members or indirectly through third parties for
partisan election purposes;
5) It violates or fails to comply with laws, rules
or regulations relating to elections;
6) It declares untruthful statements in its
petition;
7) It has ceased to exist for at least one (1)
year; or
8) It fails to participate in the last two (2)
preceding elections or fails to obtain at least two per
centum (2%) of the votes cast under the party-list system
in the two (2) preceding elections for the constituency in
which it had registered.”
Note should be taken of paragraph 5, which disqualifies a
party or group for violation of or failure to comply with
election laws and regulations. These laws include Section
2 of RA 7941, which states that the party-list system seeks
to “enable Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties x x x
to become members of the House of Representatives.” A
party or organization, therefore, that does not comply
with this policy must be disqualified.
Fifth, the party or organization must not be an adjunct of,
or a project organized or an entity funded or assisted by,
the government. By the very nature of the party-list
system, the party or organization must be a group of
citizens, organized by citizens and operated by citizens.
It must be independent of the government. The
participation of the government or its officials in the
affairs of a party-list candidate is not only illegal and
unfair to other parties, but also deleterious to the
objective of the law: to enable citizens belonging to
marginalized and underrepresented sectors and
organization to be elected to the House of
Representatives.
Sixth, the party must not only comply with the
requirements of the law; its nominees must likewise do
so. x x x
Seventh, not only the candidate party or organization
must represent marginalized and underrepresented
sectors; so also must its nominees. To repeat, under
Section 2 of RA 7941, the nominees must be Filipino
citizens “who belong to marginalized and
underrepresented sectors, organizations and parties.”
Surely, the interests of the youth cannot be fully
represented by a retiree; neither can those of the urban
poor or the working class, by an industrialist. To allow
otherwise is to betray the State policy to give genuine
representation to the marginalized and underrepresented.
Eighth, x x x while lacking a well-defined political
constituency, the nominee must likewise be able to
contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a
whole. x x x (Ang Bagong Bayani – OFW Labor
Party v. COMELEC, G.R. No. 147589, June 26, 2001,
En Banc [Panganiban])
67. Accused-appellant Congressman Romeo G.
Jalosjos filed a motion before the Court asking that he be
allowed to fully discharge the duties of a Congressman,
including attendance at legislative sessions and
committee meetings despite his having been convicted in
the first instance of a non-bailable offense. He contended
that his reelection being an expression of popular will
cannot be rendered inutile by any ruling, giving priority to
any right or interest – not even the police power of the
State. Resolve.
Held: The immunity from arrest or detention of Senators
and members of the House of Representatives x x x arises
from a provision of the Constitution. The history of the
provision shows that the privilege has always been
granted in a restrictive sense. The provision granting an
exemption as a special privilege cannot be extended
beyond the ordinary meaning of its terms. It may not be
extended by intendment, implication or equitable
considerations.
The 1935 Constitution provided in its Article VI on the
Legislative Department:
Sec. 15. The Senators and Members of the House of
Representatives shall in all cases except treason, felony,
and breach of the peace, be privileged from arrest during
their attendance at the sessions of Congress, and in going
to and returning from the same; x x x.
Because of the broad coverage of felony and breach of
the peace, the exemption applied only to civil arrests. A
congressman like the accused-appellant, convicted under
Title Eleven of the Revised Penal Code could not claim
parliamentary immunity from arrest. He was subject to
the same general laws governing all persons still to be
tried or whose convictions were pending appeal.
The 1973 Constitution broadened the privilege of
immunity as follows:
Article VIII, Sec. 9. A Member of the Batasang Pambansa
shall, in all offenses punishable by not more than six years
imprisonment, be privileged from arrest during his
attendance at its sessions and in going to and returning
from the same.
For offenses punishable by more than six years
imprisonment, there was no immunity from arrest. The
restrictive interpretation of immunity and the intent to
confine it within carefully defined parameters is illustrated
by the concluding portion of the provision, to wit:
X x x but the Batasang Pambansa shall surrender the
member involved to the custody of the law within twenty
four hours after its adjournment for a recess or for its next
session, otherwise such privilege shall cease upon its
failure to do so.
The present Constitution adheres to the same restrictive
rule minus the obligation of Congress to surrender the
subject Congressman to the custody of the law. The
requirement that he should be attending sessions or
committee meetings has also been removed. For
relatively minor offenses, it is enough that Congress is in
session.
The accused-appellant argues that a member of
Congress’ function to attend sessions is underscored by
Section 16(2), Article VI of the Constitution which states
that –
(2) A majority of each House shall constitute a quorum to
do business, but a smaller number may adjourn from day
to day and may compel the attendance of absent
Members in such manner, and under such penalties, as
such House may provide.
However, the accused-appellant has not given any reason
why he should be exempted from the operation of Section
11, Article VI of the Constitution. The members of
Congress cannot compel absent members to attend
sessions if the reason for the absence is a legitimate one.
The confinement of a Congressman charged with a crime
punishable by imprisonment of more than six years is not
merely authorized by law, it has constitutional
foundations.
Accused-appellant’s reliance on the ruling in Aguinaldo v.
Santos (212 SCRA 768, at 773 [1992]), which states, inter
alia, that –
The Court should never remove a public officer for acts
done prior to his present term of office. To do otherwise
would be to deprive the people of their right to elect their
officers. When the people have elected a man to office,
it must be assumed that they did this with the knowledge
of his life and character, and that they disregarded or
forgave his fault or misconduct, if he had been guilty of
any. It is not for the Court, by reason of such fault or
misconduct, to practically overrule the will of the people.
will not extricate him from his predicament. It can be
readily seen x x x that the Aguinaldo case involves the
administrative removal of a public officer for acts done
prior to his present term of office. It does not apply to
imprisonment arising from the enforcement of criminal
law. Moreover, in the same way that preventive
suspension is not removal, confinement pending appeal is
not removal. He remains a Congressman unless expelled
by Congress or, otherwise, disqualified.
One rationale behind confinement, whether pending
appeal or after final conviction, is public self-defense.
Society must protect itself. It also serves as an example
and warning to others.
A person charged with crime is taken into custody for
purposes of the administration of justice. As stated in
United States v. Gustilo (19 Phil. 208, 212), it is the injury
to the public which State action in criminal law seeks to
redress. It is not the injury to the complainant. After
conviction in the Regional Trial Court, the accused may
be denied bail and thus subjected to incarceration if there
is risk of his absconding.
The accused-appellant states that the plea of the
electorate which voted him into office cannot be
supplanted by unfounded fears that he might escape
eventual punishment if permitted to perform
congressional duties outside his regular place of
confinement.
It will be recalled that when a warrant for accused-
appellant’s arrest was issued, he fled and evaded capture
despite a call from his colleagues in the House of
Representatives for him to attend the sessions ands to
surrender voluntarily to the authorities. Ironically, it is
now the same body whose call he initially spurned which
accused-appellant is invoking to justify his present
motion. This can not be countenanced because, x x x
aside from its being contrary to well-defined
Constitutional restrains, it would be a mockery of the aims
of the State’s penal system.
Accused-appellant argues that on several occasions, the
Regional Trial Court of Makati granted several motions to
temporarily leave his cell at the Makati City Jail, for official
or medical reasons x x x.
He also calls attention to various instances, after his
transfer at the New Bilibid Prison in Muntinlupa City, when
he was likewise allowed/permitted to leave the prison
premises x x x.
There is no showing that the above privileges are peculiar
to him or to a member of Congress. Emergency or
compelling temporary leaves from imprisonment are
allowed to all prisoners, at the discretion of the authorities
or upon court orders.
What the accused-appellant seeks is not of an emergency
nature. Allowing accused-appellant to attend
congressional sessions and committee meetings for five
(5) days or more in a week will virtually make him a free
man with all the privileges appurtenant to his position.
Such an aberrant situation not only elevates accused-
appellant’s status to that of a special class, it also would
be a mockery of the purposes of the correction system.
Xxx
The accused-appellant avers that his constituents in the
First District of Zamboanga del Norte want their voices to
be heard and that since he is treated as bona fide member
of the House of Representatives, the latter urges a co-
equal branch of government to respect his mandate. He
also claims that the concept of temporary detention does
not necessarily curtail his duty to discharge his mandate
and that he has always complied with the
conditions/restrictions when he is allowed to leave jail.
We remain unpersuaded.
Xxx
When the voters of his district elected the accused-
appellant to Congress, they did so with full awareness of
the limitations on his freedom of action. They did so with
the knowledge that he could achieve only such legislative
results which he could accomplish within the confines of
prison. To give a more drastic illustration, if voters elect
a person with full knowledge that he is suffering from a
terminal illness, they do so knowing that at any time, he
may no longer serve his full term in office. (People v.
Jalosjos, 324 SCRA 689, Feb. 3, 2000, En Banc
[Ynares-Santiago])
68. Discuss the objectives of Section 26(1), Article VI
of the 1987 Constitution, that "[e]very bill passed by the
Congress shall embrace only one subject which shall be
expressed in the title thereof."
Held: The objectives of Section 26(1), Article VI of the
1987 Constitution are:
1) To prevent hodge-podge or log-rolling
legislation;
2) To prevent surprise or fraud upon the
legislature by means of provisions in bills of which the
titles gave no information, and which might therefore be
overlooked and carelessly and unintentionally adopted;
and
3) To fairly apprise the people, through such
publication of legislative proceedings as is usually made,
of the subjects of legislation that are being considered, in
order that they may have opportunity of being heard
thereon by petition or otherwise if they shall so desire.
Section 26(1) of Article VI of the 1987 Constitution is
sufficiently complied with where x x x the title is
comprehensive enough to embrace the general objective
it seeks to achieve, and if all the parts of the statute are
related and germane to the subject matter embodied in
the title or so long as the same are not inconsistent with
or foreign to the general subject and title. (Agripino A.
De Guzman, Jr., et al. v. COMELEC, G.R. No.
129118, July 19, 2000, en Banc [Purisima])
69. Section 44 of R.A. No. 8189 (The Voter's
Registration Act of 1996) which provides for automatic
transfer to a new station of any Election Officer who has
already served for more than four years in a particular city
or municipality was assailed for being violative of Section
26(1) of Article VI of the Constitution allegedly because it
has an isolated and different subject from that of RA 8189
and that the same is not expressed in the title of the law.
Should the challenge be sustained?
Held: Section 44 of RA 8189 is not isolated considering
that it is related and germane to the subject matter stated
in the title of the law. The title of RA 8189 is "The Voter's
Registration Act of 1996" with a subject matter
enunciated in the explanatory note as "AN ACT
PROVIDING FOR A GENERAL REGISTRATION OF
VOTERS, ADOPTING A SYSTEM OF CONTINUING
REGISTRATION, PRESCRIBING THE PROCEDURES
THEREOF AND AUTHORIZING THE APPROPRIATION OF
FUNDS THEREFOR." Section 44, which provides for the
reassignment of election officers, is relevant to the
subject matter of registration as it seeks to ensure the
integrity of the registration process by providing guideline
for the COMELEC to follow in the reassignment of election
officers. It is not an alien provision but one which is
related to the conduct and procedure of continuing
registration of voters. In this regard, it bears stressing
that the Constitution does not require Congress to employ
in the title of an enactment, language of such precision
as to mirror, fully index or catalogue, all the contents and
the minute details therein. (Agripino A. De Guzman,
Jr., et al. v. COMELEC, G.R. No. 129118, July 19,
2000, En Banc [Purisima])
70. Do courts have the power to inquire into
allegations that, in enacting a law, a House of Congress
failed to comply with its own rules?
Held: The cases, both here and abroad, in varying forms
of expression, all deny to the courts the power to inquire
into allegations that, in enacting a law, a House of
Congress failed to comply with its own rules, in the
absence of showing that there was a violation of a
constitutional provision or the right of private individuals.
In Osmena v. Pendatun (109 Phil. At 870-871), it was
held: “At any rate, courts have declared that ‘the rules
adopted by deliberative bodies are subject to revocation,
modification or waiver at the pleasure of the body
adopting them.’ And it has been said that ‘Parliamentary
rules are merely procedural, and with their observance,
the courts have no concern. They may be waived or
disregarded by the legislative body.’ Consequently, ‘mere
failure to conform to parliamentary usage will not
invalidate that action (taken by a deliberative body) when
the requisite number of members have agreed to a
particular measure.’”
It must be realized that each of the three departments of
our government has its separate sphere which the others
may not invade without upsetting the delicate balance on
which our constitutional order rests. Due regard for the
working of our system of government, more than mere
comity, compels reluctance on the part of the courts to
enter upon an inquiry into an alleged violation of the rules
of the House. Courts must accordingly decline the
invitation to exercise their power. (Arroyo v. De
Venecia, 277 SCRA 268, Aug. 14, 1997 [Mendoza])
71. What is the Bicameral Conference Committee?
Discuss the nature of its function and its jurisdiction.
Held: While it is true that a conference committee is the
mechanism for compromising differences between the
Senate and the House, it is not limited in its jurisdiction
to this question. Its broader function is described thus:

A conference committee may deal generally with the
subject matter or it may be limited to resolving the precise
differences between the two houses. Even where the
conference committee is not by rule limited in its
jurisdiction, legislative custom severely limits the freedom
with which new subject matter can be inserted into the
conference bill. But occasionally a conference committee
produces unexpected results, results beyond its mandate.
These excursions occur even where the rules impose strict
limitations on conference committee jurisdiction. This is
symptomatic of the authoritarian power of conference
committee. (Philippine Judges Association v. Prado,
227 SCRA 703, Nov. 11, 1993, En Banc [Cruz])
72. Discuss the Enrolled Bill Doctrine.
Held: Under the enrolled bill doctrine, the signing of H.
Bill No. 7189 by the Speaker of the House and the
President of the Senate and the certification by the
secretaries of both Houses of Congress that it was passed
on November 21, 1996 are conclusive of its due
enactment. x x x To be sure, there is no claim either
here or in the decision in the EVAT cases (Tolentino v.
Secretary of Finance) that the enrolled bill embodies a
conclusive presumption. In one case (Astorga v. Villegas,
56 SCRA 714 [1974]) we “went behind” an enrolled bill
and consulted the Journal to determine whether certain
provisions of a statute had been approved by the Senate.
But, where as here there is no evidence to the contrary,
this Court will respect the certification of the presiding
officers of both Houses that a bill has been duly passed.
Under this rule, this Court has refused to determine claims
that the three-fourths vote needed to pass a proposed
amendment to the Constitution had not been obtained,
because “a duly authenticated bill or resolution imports
absolute verity and is binding on the courts.” x x x
This Court has refused to even look into allegations that
the enrolled bill sent to the President contained provisions
which had been “surreptitiously” inserted in the
conference committee x x x. (Tolentino v. Secretary of
Finance)
It has refused to look into charges that an amendment
was made upon the last reading of a bill in violation of
Art. VI, Sec. 26(2) of the Constitution that “upon the last
reading of a bill, no amendment shall be allowed.”
(Philippine Judges Ass’n v. Prado, 227 SCRA 703, 710
[1993])
In other cases, this Court has denied claims that the tenor
of a bill was otherwise than as certified by the presiding
officers of both Houses of Congress.
The enrolled bill doctrine, as a rule of evidence, is well-
established. It is cited with approval by text writers here
and abroad. The enrolled bill rule rests on the following
considerations:
X x x. As the President has no authority to approve a bill
not passed by Congress, an enrolled Act in the custody of
the Secretary of State, and having the official attestations
of the Speaker of the House of Representatives, of the
President of the Senate, and of the President of the United
States, carries, on its face, a solemn assurance by the
legislative and executive departments of the government,
charged, respectively, with the duty of enacting and
executing the laws, that it was passed by Congress. The
respect due to coequal and independent departments
requires the judicial department to act upon that
assurance, and to accept, as having passed Congress, all
bills authenticated in the manner stated; leaving the court
to determine, when the question properly arises, whether
the Act, so authenticated, is in conformity with the
Constitution. (Marshall Field & Co. v. Clark, 143 U.S. 649,
672, 36 L. Ed. 294, 303 [1891])
To overrule the doctrine now, x x x is to repudiate the
massive teaching of our cases and overthrow an
established rule of evidence. (Arroyo v. De Venecia,
277 SCRA 268, Aug. 14, 1997 [Mendoza])
73. When should the Legislative Journal be regarded
as conclusive upon the courts, and why?
Held: The Journal is regarded as conclusive with respect
to matters that are required by the Constitution to be
recorded therein. With respect to other matters, in the
absence of evidence to the contrary, the Journals have
also been accorded conclusive effects. Thus, in United
States v. Pons (34 Phil. 729, 735 [1916]], quoting ex rel.
Herron v. Smith, 44 Ohio 348 [1886]), this Court spoke of
the imperatives of public policy for regarding the Journals
as “public memorials of the most permanent character,”
thus: “They should be public, because all are required to
conform to them; they should be permanent, that rights
acquired today upon the faith of what has been declared
to be law shall not be destroyed tomorrow, or at some
remote period of time, by facts resting only in the memory
of individuals.” X x x. (Arroyo v. De Venecia, 277
SCRA 268, 298-299, Aug. 14, 1997 [Mendoza])
74. What matters are required to be entered on the
Journal?
Held:
1) The yeas and nays on the third and final
reading of a bill (Art. VI, Sec. 26[2]);
2) The yeas and nays on any question, at the
request of one-fifth of the members present (Id., Sec.
16[4]);
3) The yeas and nays upon repassing a bill over
the President’s veto (Id., Sec. 27[1]); and
4) The President’s objection to a bill he had
vetoed (Id.).
(Arroyo v. De Venecia, 277 SCRA 268, 298, Aug. 14,
1997 [Mendoza])
75. A disqualification case was filed against a
candidate for Congressman before the election with the
COMELEC. The latter failed to resolve that disqualification
case before the election and that candidate won, although
he was not yet proclaimed because of that pending
disqualification case. Is the COMELEC now ousted of
jurisdiction to resolve the pending disqualification case
and, therefore, should dismiss the case, considering that
jurisdiction is now vested with the House of
Representatives Electoral Tribunal (HRET)?
Held: 1. In his first assignments of error, petitioner
vigorously contends that after the May 8, 1995 elections,
the COMELEC lost its jurisdiction over the question of
petitioner’s qualifications to run for member of the House
of Representatives. He claims that jurisdiction over the
petition for disqualification is exclusively lodged with the
House of Representatives Electoral Tribunal (HRET).
Given the yet-unresolved question of jurisdiction,
petitioner avers that the COMELEC committed serious
error and grave abuse of discretion in directing the
suspension of his proclamation as the winning candidate
in the Second Congressional District of Makati City. We
disagree.
Petitioner conveniently confuses the distinction between
an unproclaimed candidate to the House of
Representatives and a member of the same. Obtaining
the highest number of votes in an election does not
automatically vest the position in the winning candidate.
Section 17 of Article VI of the 1987 Constitution reads:
The Senate and the House of Representatives shall have
an Electoral Tribunal which shall be the sole judge of all
contests relating to the election, returns and qualifications
of their respective Members.
Under the above-stated provision, the electoral tribunal
clearly assumes jurisdiction over all contests relative to
the election, returns and qualifications of candidates for
either the Senate or the House only when the latter
become members of either the Senate or the House of
Representatives. A candidate who has not been
proclaimed and who has not taken his oath of office
cannot be said to be a member of the House of
Representatives subject to Section 17 of Article VI of the
Constitution. While the proclamation of a winning
candidate in an election is ministerial, B.P. Blg. 881 in
conjunction with Sec. 6 of R.A. 6646 allows suspension of
proclamation under circumstances mentioned therein.
Thus, petitioner’s contention that “after the conduct of
the election and (petitioner) has been established the
winner of the electoral exercise from the moment of
election, the COMELEC is automatically divested of
authority to pass upon the question of qualification” finds
no basis in law, because even after the elections the
COMELEC is empowered by Section 6 (in relation to
Section 7) of R.A. 6646 to continue to hear and decide
questions relating to qualifications of candidates. X x x.
Under the above-quoted provision, not only is a
disqualification case against a candidate allowed to
continue after the election (and does not oust the
COMELEC of its jurisdiction), but his obtaining the highest
number of votes will not result in the suspension or
termination of the proceedings against him when the
evidence of guilt is strong. While the phrase “when the
evidence of guilt is strong” seems to suggest that the
provisions of Section 6 ought to be applicable only to
disqualification cases under Section 68 of the Omnibus
Election Code, Section 7 of R.A. 6646 allows the
application of the provisions of Section 6 to cases
involving disqualification based on ineligibility under
Section 78 of BP. Blg. 881. X x x. (Aquino v. COMELEC,
248 SCRA 400, 417-419, Sept. 18, 1995, En Banc
[Kapunan, J.])
2. As to the House of Representatives Electoral Tribunal’s
supposed assumption of jurisdiction over the issue of
petitioner’s qualifications after the May 8, 1995 elections,
suffice it to say that HRET’s jurisdiction as the sole judge
of all contests relating to the elections, returns and
qualifications of members of Congress begins only after a
candidate has become a member of the House of
Representatives (Art. VI, Sec. 17, 1987 Constitution).
Petitioner not being a member of the House of
Representatives, it is obvious that the HRET at this point
has no jurisdiction over the question. (Romualdez-
Marcos v. COMELEC, 248 SCRA 300, 340-341, Sept.
18, 1995, En Banc [Kapunan, J.])
76. Will the rule be the same if that candidate wins
and was proclaimed winner and already assumed office
as Congressman?
Held: While the COMELEC is vested with the power to
declare valid or invalid a certificate of candidacy, its
refusal to exercise that power following the proclamation
and assumption of the position by Farinas is a recognition
of the jurisdictional boundaries separating the COMELEC
and the Electoral Tribunal of the House of Representatives
(HRET). Under Article VI, Section 17 of the Constitution,
the HRET has sole and exclusive jurisdiction over all
contests relative to the election, returns, and
qualifications of members of the House of
Representatives. Thus, once a winning candidate has
been proclaimed, taken his oath, and assumed office as a
member of the House of Representatives, COMELEC’s
jurisdiction over election contests relating to his election,
returns, and qualifications ends, and the HRET’s own
jurisdiction begins. Thus, the COMELEC’s decision to
discontinue exercising jurisdiction over the case is
justifiable, in deference to the HRET’s own jurisdiction
and functions.
Xxx
Petitioner further argues that the HRET assumes
jurisdiction only if there is a valid proclamation of the
winning candidate. He contends that if a candidate fails
to satisfy the statutory requirements to qualify him as a
candidate, his subsequent proclamation is void ab initio.
Where the proclamation is null and void, there is no
proclamation at all and the mere assumption of office by
the proclaimed candidate does not deprive the COMELEC
at all of its power to declare such nullity, according to
petitioner. But x x x, in an electoral contest where the
validity of the proclamation of a winning candidate who
has taken his oath of office and assumed his post as
congressman is raised, that issue is best addressed to the
HRET. The reason for this ruling is self-evident, for it
avoids duplicity of proceedings and a clash of jurisdiction
between constitutional bodies, with due regard to the
people’s mandate. (Guerrero v. COMELEC, 336 SCRA
458, July 26, 2000, En Banc [Quisumbing])
77. Is there an appeal from a decision of the Senate
or House of Representatives Electoral Tribunal? What
then is the remedy, if any?
Held: The Constitution mandates that the House of
Representatives Electoral Tribunal and the Senate
Electoral Tribunal shall each, respectively, be the sole
judge of all contests relating to the election, returns and
qualifications of their respective members.
The Court has stressed that “x x x so long as the
Constitution grants the HRET the power to be the sole
judge of all contests relating to the election, returns and
qualifications of members of the House of
Representatives, any final action taken by the HRET on a
matter within its jurisdiction shall, as a rule, not be
reviewed by this Court. The power granted to the
Electoral Tribunal x x x excludes the exercise of any
authority on the part of this Court that would in any wise
restrict it or curtail it or even affect the same.”
The Court did recognize, of course, its power of judicial
review in exceptional cases. In Robles v. HRET (181 SCRA
780), the Court has explained that while the judgments
of the Tribunal are beyond judicial interference, the Court
may do so, however, but only “in the exercise of this
Court’s so-called extraordinary jurisdiction x x x upon a
determination that the Tribunal’s decision or resolution
was rendered without or in excess of its jurisdiction, or
with grave abuse of discretion or paraphrasing Morrero
(Morrero v. Bocar [66 Phil. 429]), upon a clear showing
of such arbitrary and improvident use by the Tribunal of
its power as constitutes a denial of due process of law, or
upon a demonstration of a very clear unmitigated error,
manifestly constituting such grave abuse of discretion
that there has to be a remedy for such abuse.”
The Court does not x x x venture into the perilous area of
correcting perceived errors of independent branches of
the Government; it comes in only when it has to vindicate
a denial of due process or correct an abuse of discretion
so grave or glaring that no less than the Constitution itself
calls for remedial action. (Libanan v. HRET, 283 SCRA
520, Dec. 22, 1997 [Vitug])
The Executive Department
78. What are the limitations on the veto power of
the President?
Held: The act of the Executive in vetoing the
particular provisions is an exercise of a constitutionally
vested power. But even as the Constitution grants the
power, it also provides limitations to its exercise. The
veto power is not absolute.
Xxx
The OSG is correct when it states that the
Executive must veto a bill in its entirety or not at all. He
or she cannot act like an editor crossing out specific lines,
provisions, or paragraphs in a bill that he or she dislikes.
In the exercise of the veto power, it is generally all or
nothing. However, when it comes to appropriation,
revenue or tariff bills, the Administration needs the money
to run the machinery of government and it can not veto
the entire bill even if it may contain objectionable
features. The President is, therefore, compelled to
approve into law the entire bill, including its undesirable
parts. It is for this reason that the Constitution has wisely
provided the “item veto power” to avoid inexpedient
riders being attached to an indispensable appropriation or
revenue measure.
The Constitution provides that only a particular
item or items may be vetoed. The power to disapprove
any item or items in an appropriate bill does not grant the
authority to veto a part of an item and to approve the
remaining portion of the same item. (Gonzales v.
Macaraig, Jr., 191 SCRA 452, 464 [1990]) (Bengzon v.
Drilon, 208 SCRA 133, 143-145, April 15, 1992, En
Banc [Gutierrez])
79. Distinguish an “item” from a “provision” in
relation to the veto power of the President.
Held: The terms item and provision in budgetary
legislation and practice are concededly different. An item
in a bill refers to the particulars, the details, the distinct
and severable parts x x x of the bill (Bengzon, supra, at
916). It is an indivisible sum of money dedicated to a
stated purpose (Commonwealth v. Dodson, 11 S.E., 2d
120, 124, 125, etc., 176 Va. 281). The United States
Supreme Court, in the case of Bengzon v. Secretary of
Justice (299 U.S. 410, 414, 57 Ct 252, 81 L. Ed., 312)
declared “that an item” of an appropriation bill obviously
means an item which in itself is a specific appropriation of
money, not some general provision of law, which happens
to be put into an appropriation bill. (Bengzon v. Drilon,
208 SCRA 133, 143-145, April 15, 1992, En Banc
[Gutierrez])
80. May the President veto a law? May she veto a
decision of the SC which has long become final and
executory?
Held: We need no lengthy justifications or
citations of authorities to declare that no President may
veto the provisions of a law enacted thirty-five (35) years
before his or her term of office. Neither may the President
set aside or reverse a final and executory judgment of this
Court through the exercise of the veto power. (Bengzon
v. Drilon, 208 SCRA 133, 143-145, April 15, 1992,
En Banc [Gutierrez])
81. Did former President Estrada resign as President
or should be considered resigned as of January 20, 2001
when President Gloria Macapagal Arroyo took her oath as
the 14th President of the Republic?
Held: Resignation x x x is a factual question and its
elements are beyond quibble: there must be an intent to
resign and the intent must be coupled by acts of
relinquishment. The validity of a resignation is not
governed by any formal requirement as to form. It can
be oral. It can be written. It can be express. It can be
implied. As long as the resignation is clear, it must be
given legal effect.
In the cases at bar, the facts show that petitioner did not
write any formal letter of resignation before he evacuated
Malacanang Palace in the afternoon of January 20, 2001
after the oath-taking of respondent Arroyo.
Consequently, whether or not petitioner resigned has to
be determined from his acts and omissions before, during
and after January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and circumstantial
evidence bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as
President.
Xxx
In sum, we hold that the resignation of the petitioner
cannot be doubted. It was confirmed by his leaving
Malacanang. In the press release containing his final
statement, (1) he acknowledged the oath-taking of the
respondent as President of the Republic albeit with
reservation about its legality; (2) he emphasized he was
leaving the Palace, the seat of the presidency, for the sake
of peace and in order to begin the healing process of our
nation. He did not say he was leaving the Palace due to
any kind of inability and that he was going to re-assume
the presidency as soon as the disability disappears; (3) he
expressed his gratitude to the people for the opportunity
to serve them. Without doubt, he was referring to the
past opportunity given him to serve the people as
President; (4) he assured that he will not shirk from any
future challenge that may come ahead on the same
service of our country. Petitioner’s reference is to a future
challenge after occupying the office of the president
which he has given up; and (5) he called on his supporters
to join him in the promotion of a constructive national
spirit of reconciliation and solidarity. Certainly, the
national spirit of reconciliation and solidarity could not be
attained if he did not give up the presidency. The press
release was petitioner’s valedictory, his final act of
farewell. His presidency is now in the past tense.
(Estrada v. Desierto, G.R. Nos. 146710-15, March
2, 2001, en Banc [Puno])
82. Discuss our legal history on executive immunity.
Held: The doctrine of executive immunity in this
jurisdiction emerged as a case law. In the 1910 case of
Forbes, etc. v. Chuoco Tiaco and Crossfield (16 Phil. 534
[1910]), the respondent Tiaco, a Chinese citizen, sued
petitioner W. Cameron Forbes, Governor-General of the
Philippine Islands, J.E. Harding and C.R. Trowbridge,
Chief of Police and Chief of the Secret Service of the City
of Manila, respectively, for damages for allegedly
conspiring to deport him to China. In granting a writ of
prohibition, this Court, speaking thru Mr. Justice Johnson,
held:
“The principle of nonliability x x x does not mean that the
judiciary has no authority to touch the acts of the
Governor-General; that he may, under cover of his office,
do what he will, unimpeded and unrestrained. Such a
construction would mean that tyranny, under the guise of
the execution of the law, could walk defiantly abroad,
destroying rights of person and of property, wholly free
from interference of courts or legislatures. This does not
mean, either, that a person injured by the executive
authority by an act unjustifiable under the law has no
remedy, but must submit in silence. On the contrary, it
means, simply, that the Governor-General, like the judges
of the courts and the members of the Legislature, may
not be personally mulcted in civil damages for the
consequences of an act executed in the performance of
his official duties. The judiciary has full power to, and
will, when the matter is properly presented to it and the
occasion justly warrants it, declare an act of the
Governor-General illegal and void and place as nearly as
possible in status quo any person who has been deprived
his liberty or his property by such act. This remedy is
assured to every person, however humble or of whatever
country, when his personal or property rights have been
invaded, even by the highest authority of the state. The
thing which the judiciary can not do is mulct the
Governor-General personally in damages which result
from the performance of his official duty, any more than
it can a member of the Philippine Commission or the
Philippine Assembly. Public policy forbids it.
Neither does this principle of nonliability mean that the
chief executive may not be personally sued at all in
relation to acts which he claims to perform as such official.
On the contrary, it clearly appears from the discussion
heretofore had, particularly that portion which touched
the liability of judges and drew an analogy between such
liability and that of the Governor-General, that the latter
is liable when he acts in a case so plainly outside of his
power and authority that he can not be said to have
exercised discretion in determining whether or not he had
the right to act. What is held here is that he will be
protected from personal liability for damages not only
when he acts within his authority, but also when he is
without authority, provided he actually used discretion
and judgment, that is, the judicial faculty, in determining
whether he had authority to act or not. In other words,
he is entitled to protection in determining the question of
his authority. If he decide wrongly, he is still protected
provided the question of his authority was one over which
two men, reasonably qualified for that position, might
honestly differ; but he is not protected if the lack of
authority to act is so plain that two such men could not
honestly differ over its determination. In such case, he
acts, not as Governor-General but as a private individual,
and, as such, must answer for the consequences of his
act.”
Mr. Justice Johnson underscored the consequences if the
Chief Executive was not granted immunity from suit, viz:
“x x x. Action upon important matters of state delayed;
the time and substance of the chief executive spent in
wrangling litigation; disrespect engendered for the person
of one of the highest officials of the State and for the
office he occupies; a tendency to unrest and disorder;
resulting in a way, in a distrust as to the integrity of
government itself.”
Our 1935 Constitution took effect but it did not contain
any specific provision on executive immunity. Then came
the tumult of the martial law years under the late
President Ferdinand E. Marcos and the 1973 Constitution
was born. In 1981, it was amended and one of the
amendments involved executive immunity. Section 17,
Article VII stated:
“The President shall be immune from suit during his
tenure. Thereafter, no suit whatsoever shall lie for official
acts done by him or by others pursuant to his specific
orders during his tenure.
The immunities herein provided shall apply to the
incumbent President referred to in Article XVII of this
Constitution.”
In his second Vicente G. Sinco Professorial Chair Lecture
entitled, “Presidential Immunity And All The King’s Men:
The Law Of Privilege As A Defense To Actions For
Damages,” (62 Phil. L.J. 113 [1987]) petitioner’s learned
counsel, former Dean of the UP College of Law, Atty.
Pacifico Agabin, brightened the modifications effected by
this constitutional amendment on the existing law on
executive privilege. To quote his disquisition:
“In the Philippines though, we sought to do the
American one better by enlarging and fortifying the
absolute immunity concept. First, we extended it to shield
the President not only from civil claims but also from
criminal cases and other claims. Second, we enlarged its
scope so that it would cover even acts of the President
outside the scope of official duties. And third, we
broadened its coverage so as to include not only the
President but also other persons, be they government
officials or private individuals, who acted upon orders of
the President. It can be said that at that point most of us
were suffering from AIDS (or absolute immunity defense
syndrome).”
The Opposition in the then Batasang Pambansa sought
the repeal of this Marcosian concept of executive
immunity in the 1973 Constitution. The move was led by
then Member of Parliament, now Secretary of Finance,
Alberto Romulo, who argued that the after incumbency
immunity granted to President Marcos violated the
principle that a public office is a public trust. He
denounced the immunity as a return to the anachronism
“the king can do no wrong.” The effort failed.
The 1973 Constitution ceased to exist when President
Marcos was ousted from office by the People Power
revolution in 1986. When the 1987 Constitution was
crafted, its framers did not reenact the executive
immunity provision of the 1973 Constitution. X x x
(Estrada v. Desierto, G.R. Nos. 146710-15, March
2, 2001, en Banc [Puno])
83. Can former President Estrada still be prosecuted
criminally considering that he was not convicted in the
impeachment proceedings against him?
Held: We reject his argument that he cannot be
prosecuted for the reason that he must first be convicted
in the impeachment proceedings. The impeachment trial
of petitioner Estrada was aborted by the walkout of the
prosecutors and by the events that led to his loss of the
presidency. Indeed, on February 7, 2001, the Senate
passed Senate Resolution No. 83 “Recognizing that the
Impeachment Court is Functus Officio.” Since the
Impeachment Court is now functus officio, it is untenable
for petitioner to demand that he should first be
impeached and then convicted before he can be
prosecuted. The plea if granted, would put a perpetual
bar against his prosecution. Such a submission has
nothing to commend itself for it will place him in a better
situation than a non-sitting President who has not been
subjected to impeachment proceedings and yet can be
the object of a criminal prosecution. To be sure, the
debates in the Constitutional Commission make it clear
that when impeachment proceedings have become moot
due to the resignation of the President, the proper
criminal and civil cases may already be filed against him
x x x.
This is in accord with our ruling in In Re: Saturnino
Bermudez (145 SCRA 160 [1986]) that “incumbent
Presidents are immune from suit or from being brought
to court during the period of their incumbency and
tenure” but not beyond. Considering the peculiar
circumstance that the impeachment process against the
petitioner has been aborted and thereafter he lost the
presidency, petitioner Estrada cannot demand as a
condition sine qua non to his criminal prosecution before
the Ombudsman that he be convicted in the impeachment
proceedings. (Estrada v. Desierto, G.R. Nos. 146710-
15, Mar. 2, 2001, en Banc [Puno])
84. State the reason why not all appointments made
by the President under the 1987 Constitution will no
longer require confirmation by the Commission on
Appointments.
Held: The aforecited provision (Section 16, Article VII)
of the Constitution has been the subject of several cases
on the issue of the restrictive function of the Commission
on Appointments with respect to the appointing power of
the President. This Court touched upon the historical
antecedent of the said provision in the case of Sarmiento
III v. Mison (156 SCRA 549) in which it was ratiocinated
upon that Section 16 of Article VII of the 1987
Constitution requiring confirmation by the Commission on
Appointments of certain appointments issued by the
President contemplates a system of checks and balances
between the executive and legislative branches of
government. Experience showed that when almost all
presidential appointments required the consent of the
Commission on Appointments, as was the case under the
1935 Constitution, the commission became a venue of
"horse trading" and similar malpractices. On the other
hand, placing absolute power to make appointments in
the President with hardly any check by the legislature, as
what happened under the 1973 Constitution, leads to
abuse of such power. Thus was perceived the need to
establish a "middle ground" between the 1935 and 1973
Constitutions. The framers of the 1987 Constitution
deemed it imperative to subject certain high positions in
the government to the power of confirmation of the
Commission on Appointments and to allow other positions
within the exclusive appointing power of the President.
(Manalo v. Sistoza, 312 SCRA 239, Aug. 11, 1999,
En Banc [Purisima])
85. Enumerate the groups of officers who are to be
appointed by the President under Section 16, Article VII
of the 1987 Constitution, and identify those officers
whose appointments shall require confirmation by the
Commission on Appointments.
Held: Conformably, as consistently interpreted and ruled
in the leading case of Sarmiento III v. Mison (Ibid.), and
in the subsequent cases of Bautista v. Salonga (172 SCRA
160), Quintos-Deles v. Constitutional Commission (177
SCRA 259), and Calderon v. Carale (208 SCRA 254), under
Section 16, Article VII, of the Constitution, there are four
groups of officers of the government to be appointed by
the President:
First, the heads of the executive departments,
ambassadors, other public ministers and consuls, officers
of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are
vested in him in this Constitution;
Second, all other officers of the Government whose
appointments are not otherwise provided for by law;
Third, those whom the President may be authorized by
law to appoint;
Fourth, officers lower in rank whose appointments the
Congress may by law vest in the President alone.
It is well-settled that only presidential appointees
belonging to the first group require the confirmation by
the Commission on Appointments. (Manalo v. Sistoza,
312 SCRA 239, Aug. 11, 1999, En Banc [Purisima])
86. Under Republic Act 6975 (the DILG Act of 1990),
the Director General, Deputy Director General, and other
top officials of the Philippine National Police (PNP) shall
be appointed by the President and their appointments
shall require confirmation by the Commission on
Appointments. Respondent Sistoza was appointed
Director General of the PNP but he refused to submit his
appointment papers to the Commission on Appointments
for confirmation contending that his appointment shall no
longer require confirmation despite the express provision
of the law requiring such confirmation. Should his
contention be upheld?
Held: It is well-settled that only presidential appointees
belonging to the first group (enumerated under the first
sentence of Section 16, Article VII of the 1987
Constitution) require the confirmation by the Commission
on Appointments. The appointments of respondent
officers who are not within the first category, need not be
confirmed by the Commission on Appointments. As held
in the case of Tarrosa v. Singson (232 SCRA 553),
Congress cannot by law expand the power of confirmation
of the Commission on Appointments and require
confirmation of appointments of other government
officials not mentioned in the first sentence of Section 16
of Article VII of the 1987 Constitution.
Consequently, unconstitutional are Sections 26 and 31 of
Republic Act 6975 which empower the Commission on
Appointments to confirm the appointments of public
officials whose appointments are not required by the
Constitution to be confirmed. x x x. (Manalo v. Sistoza,
312 SCRA 239, Aug. 11, 1999, En Banc [Purisima])
87. Will it be correct to argue that since the Philippine
National Police is akin to the Armed Forces of the
Philippines, therefore, the appointments of police officers
whose rank is equal to that of colonel or naval captain will
require confirmation by the Commission on
Appointments?
Held: This contention is x x x untenable. The Philippine
National Police is separate and distinct from the Armed
Forces of the Philippines. The Constitution, no less, sets
forth the distinction. Under Section 4 of Article XVI of the
1987 Constitution,
"The Armed Forces of the Philippines shall be composed
of a citizen armed force which shall undergo military
training and service, as may be provided by law. It shall
keep a regular force necessary for the security of the
State."
On the other hand, Section 6 of the same Article of the
Constitution ordains that:
"The State shall establish and maintain one police force,
which shall be national in scope and civilian in character
to be administered and controlled by a national police
commission. The authority of local executives over the
police units in their jurisdiction shall be provided by law."
To so distinguish the police force from the armed forces,
Congress enacted Republic Act 6975 x x x.
Thereunder, the police force is different from and
independent of the armed forces and the ranks in the
military are not similar to those in the Philippine National
Police. Thus, directors and chief superintendents of the
PNP x x x do not fall under the first category of
presidential appointees requiring confirmation by the
Commission on Appointments. (Manalo v. Sistoza, 312
SCRA 239, Aug. 11, 1999, En Banc [Purisima])
88. To what types of appointments is Section 15,
Article VII of the 1987 Constitution (prohibiting the
President from making appointments two months before
the next presidential elections and up to the end of his
term) directed against?
Held: Section 15, Article VII is directed against two types
of appointments: (1) those made for buying votes and (2)
those made for partisan considerations. The first refers
to those appointments made within two months
preceding the Presidential election and are similar to
those which are declared election offenses in the Omnibus
Election Code; while the second consists of the so-called
“midnight” appointments. The SC in In Re: Hon. Mateo
A. Valenzuela and Hon. Placido B. Vallarta, (298
SCRA 408, Nov. 9, 1998, En Banc [Narvasa C.J.])
clarified this when it held:
“Section 15, Article VII has a broader scope than the
Aytona ruling. It may not unreasonably be deemed to
contemplate not only “midnight” appointments – those
made obviously for partisan reasons as shown by their
number and the time of their making – but also
appointments presumed made for the purpose of
influencing the outcome of the Presidential election.”
89. Discuss the nature of an ad-interim
appointment. Is it temporary and, therefore, can be can
be withdrawn or revoked by the President at her
pleasure?
Held: An ad interim appointment is a
permanent appointment because it takes effect
immediately and can no longer be withdrawn by the
President once the appointee has qualified into office.
The fact that it is subject to confirmation by the
Commission on Appointments does not alter its
permanent character. The Constitution itself makes an
ad interim appointment permanent in character by
making it effective until disapproved by the Commission
on Appointments or until the next adjournment of
congress. The second paragraph of Section 16, Article
VII of the Constitution provides as follows:
“The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by
the Commission on Appointments or until the next
adjournment of the Congress.”
Thus, the ad interim appointment remains effective until
such disapproval or next adjournment, signifying that it
can no longer be withdrawn or revoked by the President.
The fear that the President can withdraw or revoke at
any time and for any reason an ad interim appointment
is utterly without basis.
More than half a century ago, this Court had
already ruled that an ad interim appointment is
permanent in character. In Summers v. Ozaeta (81 Phil.
754 [1948]), decided on October 25, 1948, we held that:
“x x x an ad interim appointment is one made in
pursuance of paragraph (4), Section 10, Article VII of
the Constitution, which provides that the ‘President shall
have the power to make appointments during the recess
of the Congress, but such appointments shall be
effective only until disapproval by the Commission on
Appointments or until the next adjournment of the
Congress.’ It is an appointment permanent in nature,
and the circumstance that it is subject to confirmation
by the Commission on Appointments does not alter its
permanent character. An ad interim appointment is
disapproved certainly for a reason other than that its
provisional period has expired. Said appointment is of
course distinguishable from an ‘acting’ appointment
which is merely temporary, good until another
permanent appointment is issued.”
The Constitution imposes no condition on the
effectivity of an ad interim appointment, and thus an ad
interim appointment takes effect immediately. The
appointee can at once assume office and exercise, as a
de jure officer, all the powers pertaining to the office.
In Pacete v. Secretary of the Commission on
Appointments (40 SCRA 58 [1971]), this Court
elaborated on the nature of an ad interim appointment
as follows:
“A distinction is thus made between the exercise of such
presidential prerogative requiring confirmation by the
Commission on Appointments when Congress is in
session and when it is in recess. In the former, the
President nominates, and only upon the consent of the
Commission on Appointments may the person thus
named assume office. It is not so with reference to ad
interim appointments. It takes effect at once. The
individual chosen may thus qualify and perform his
function without loss of time. His title to such office is
complete. In the language of the Constitution, the
appointment is effective ‘until disapproval by the
Commission on Appointments or until the next
adjournment of the Congress.’”
Petitioner cites Black’s Law Dictionary which
defines the term “ad interim” to mean “in the meantime”
or “for the time being.” Hence, petitioner argues that an
ad interim appointment is undoubtedly temporary in
character. This argument is not new and was answered
by this Court in Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court (140 SCRA 22 [1985]),
where we explained that:
“x x x From the arguments, it is easy to see why the
petitioner should experience difficulty in understanding
the situation. Private respondent had been extended
several ‘ad interim’ appointments which petitioner
mistakenly understands as appointments temporary in
nature. Perhaps, it is the literal translation of the word
‘ad interim’ which creates such belief. The term is
defined by Black to mean ‘in the meantime’ or ‘for the
time being’. Thus, an officer ad interim is one appointed
to fill a vacancy, or to discharge the duties of the office
during the absence or temporary incapacity of its regular
incumbent (Black’s Law Dictionary, Revised Fourth
Edition, 1978). But such is not the meaning nor the use
intended in the context of Philippine law. In referring to
Dr. Esteban’s appointments, the term is not descriptive
of the nature of the appointments given to him. Rather,
it is used to denote the manner in which said
appointments were made, that is, done by the President
of the Pamantasan in the meantime, while the Board of
Regents, which is originally vested by the University
Charter with the power of appointment, is unable to act.
X x x.”
Thus, the term “ad interim appointment”, as
used in letters of appointment signed by the President,
means a permanent appointment made by the President
in the meantime that Congress is in recess. It does not
mean a temporary appointment that can be withdrawn
or revoked at any time. The term, although not found in
the text of the Constitution, has acquired a definite legal
meaning under Philippine jurisprudence. The Court had
again occasion to explain the nature of an ad interim
appointment in the more recent case of Marohombsar v.
Court of Appeals (326 SCRA 62 [2000]), where the Court
stated:
“We have already mentioned that an ad interim
appointment is not descriptive of the nature of the
appointment, that is, it is not indicative of whether the
appointment is temporary or in an acting capacity,
rather it denotes the manner in which the appointment
was made. In the instant case, the appointment
extended to private respondent by then MSU President
Alonto, Jr. was issued without condition nor limitation as
to tenure. The permanent status of private respondent’s
appointment as Executive Assistant II was recognized
and attested to by the Civil Service Commission Regional
Office No. 12. Petitioner’s submission that private
respondent’s ad interim appointment is synonymous
with a temporary appointment which could be validly
terminated at any time is clearly untenable. Ad interim
appointments are permanent appointment but their
terms are only until the Board disapproves them.”
An ad interim appointee who has qualified and
assumed office becomes at that moment a government
employee and therefore part of the civil service. He
enjoys the constitutional protection that “[n]o officer or
employee in the civil service shall be removed or
suspended except for cause provided by law.” (Section
2[3], Article IX-B of the Constitution) Thus, an ad
interim appointment becomes complete and irrevocable
once the appointee has qualified into office. The
withdrawal or revocation of an ad interim appointment is
possible only if it is communicated to the appointee
before the moment he qualifies, and any withdrawal or
revocation thereafter is tantamount to removal from
office (See concurring opinion of Justice Cesar Bengzon
in Erana v. Vergel de Dios, 85 Phil. 17 [1949]). Once an
appointee has qualified, he acquires a legal right to the
office which is protected not only by statute but also by
the Constitution. He can only be removed for cause,
after notice and hearing, consistent with the
requirements of due process.
An ad interim appointment can be terminated for two
causes specified in the Constitution. The first cause is
the disapproval of his ad interim appointment by the
Commission on Appointments. The second cause is the
adjournment of Congress without the Commission on
Appointments acting on his appointment. These two
causes are resolutory conditions expressly imposed by
the Constitution on all ad interim appointments. These
resolutory conditions constitute, in effect, a Sword of
Damocles over the heads of ad interim appointees. No
one, however, can complain because it is the
Constitution itself that places the Sword of Damocles
over the heads of the ad interim appointees.
While an ad interim appointment is permanent and
irrevocable except as provided by law, an appointment
or designation in a temporary or acting capacity can be
withdrawn or revoked at the pleasure of the appointing
power (Binamira v. Garrucho, 188 SCRA 154 [1990];
Santiago v. Commission on Audit, 199 SCRA 125 [1991];
Sevilla v. Court of Appeals, 209 SCRA 637 [1992]). A
temporary or acting appointee does not enjoy any
security of tenure, no matter how briefly. This is the
kind of appointment that the Constitution prohibits the
President from making to the three independent
constitutional commissions, including the COMELEC.
Thus, in Brillantes v. Yorac (192 SCRA 358 [1990]), this
Court struck down as unconstitutional the designation by
then President Corazon Aquino of Associate
Commissioner Haydee Yorac as Acting Chairperson of
the COMELEC. This Court ruled that:
“A designation as Acting Chairman is by its very terms
essentially temporary and therefore revocable at will.
No cause need be established to justify its revocation.
Assuming its validity, the designation of the respondent
as Acting Chairman of the Commission on Elections may
be withdrawn by the President of the Philippines at any
time and for whatever reason she sees fit. It is doubtful
if the respondent, having accepted such designation, will
not be estopped from challenging its withdrawal.
The Constitution provides for many safeguards to the
independence of the Commission on Elections, foremost
among which is the security of tenure of its members.
That guarantee is not available to the respondent as
Acting Chairman of the Commission on Elections by
designation of the President of the Philippines.”
Earlier, in Nacionalista Party v. Bautista (85 Phil.
101 [1949]), a case decided under the 1935
Constitution, which did not have a provision prohibiting
temporary or acting appointments to the COMELEC, this
Court nevertheless declared unconstitutional the
designation of the Solicitor General as acting member of
the COMELEC. This Court ruled that the designation of
an acting Commissioner would undermine the
independence of the COMELEC and hence violate the
Constitution. We declared then: “It would be more in
keeping with the intent, purpose and aim of the framers
of the Constitution to appoint a permanent
Commissioner than to designate one to act temporarily.”
In the instant case, the President did in fact
appoint permanent Commissioners to fill the vacancies in
the COMELEC, subject only to confirmation by the
Commission on Appointments. Benipayo, Borra and
Tuason were extended permanent appointments during
the recess of Congress. They were not appointed or
designated in a temporary or acting capacity, unlike
Commissioner Haydee Yorac in Brillantes v. Yorac and
Solicitor General Felix Bautista in Nacionalista Party v.
Bautista. The ad interim appointments of Benipayo,
Borra and Tuason are expressly allowed by the
Constitution which authorizes the President, during the
recess of Congress, to make appointments that take
effect immediately.
While the Constitution mandates that the COMELEC
“shall be independent,” this provision should be
harmonized with the President’s power to extend ad
interim appointments. To hold that the independence of
the COMELEC requires the Commission on Appointments
to first confirm ad interim appointees before the
appointees can assume office will negate the President’s
power to make ad interim appointments. This is
contrary to the rule on statutory construction to give
meaning and effect to every provision of the law. It will
also run counter to the clear intent of the framers of the
Constitution.
The original draft of Section 16, Article VII of the
Constitution – on the nomination of officers subject to
confirmation by the Commission on Appointments – did
not provide for ad interim appointments. The original
intention of the framers of the Constitution was to do
away with ad interim appointments because the plan
was for Congress to remain in session throughout the
year except for a brief 30-day compulsory recess.
However, because of the need to avoid disruptions in
essential government services, the framers of the
Constitution thought it wise to reinstate the provisions of
the 1935 Constitution on ad interim appointments. X x
x.
Xxx
Clearly, the reinstatement in the present Constitution of
the ad interim appointing power of the President was for
the purpose of avoiding interruptions in vital government
services that otherwise would result from prolonged
vacancies in government offices, including the three
constitutional commissions. In his concurring opinion in
Guevarra v. Inocentes (16 SCRA 379 [1966]), decided
under the 1935 Constitution, Justice Roberto
Concepcion, Jr. explained the rationale behind ad interim
appointments in this manner:
“Now, why is the lifetime of ad interim appointments so
limited? Because, if they expired before the session of
Congress, the evil sought to be avoided – interruption in
the discharge of essential functions – may take place.
Because the same evil would result if the appointments
ceased to be effective during the session of Congress
and before its adjournment. Upon the other hand, once
Congress has adjourned, the evil aforementioned may
easily be conjured by the issuance of other ad interim
appointments or reappointments.”
Indeed, the timely application of the last sentence of
Section 16, Article VII of the Constitution barely avoided
the interruption of essential government services in the
May 2001 national elections. Following the decision of
this Court in Gaminde v. Commission on Appointments
(347 SCRA 655 [2000]), promulgated on December 13,
2000, the terms of office of constitutional officers first
appointed under the Constitution would have to be
counted starting February 2, 1987, the date of
ratification of the Constitution, regardless of the date of
their actual appointment. By this reckoning, the terms
of office of three Commissioners of the COMELEC,
including the Chairman, would end on February 2, 2001
(See Section 1[2], Article IX-C of the Constitution).
Xxx
During an election year, Congress normally goes on
voluntary recess between February and June considering
that many of the members of the House of
Representatives and the Senate run for re-election. In
2001, the Eleventh Congress adjourned from January 9,
2001 to June 3, 2001. Concededly, there was no more
time for Benipayo, Borra and Tuason, who were
originally extended ad interim appointments only on
March 22, 2001, to be confirmed by the Commission on
Appointments before the May 14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad
interim appointments to fill up the three vacancies in the
COMELEC, there would only have been one division
functioning in the COMELEC instead of two during the
May 2001 elections. Considering that the Constitution
requires that “all x x x election cases shall be heard and
decided in division,” the remaining one division would
have been swamped with election cases. Moreover,
since under the Constitution motions for reconsideration
“shall be decided by the Commission en banc”, the mere
absence of one of the four remaining members would
have prevented a quorum, a less than ideal situation
considering that the Commissioners are expected to
travel around the country before, during and after the
elections. There was a great probability that disruptions
in the conduct of the May 2001 elections could occur
because of the three vacancies in the COMELEC. The
successful conduct of the May 2001 national elections,
right after the tumultuous EDSA II and EDSA III events,
was certainly essential in safeguarding and
strengthening our democracy.
Evidently, the exercise by the President in the instant
case of her constitutional power to make ad interim
appointments prevented the occurrence of the very evil
sought to be avoided by the second paragraph of
Section 16, Article VII of the Constitution. This power to
make ad interim appointments is lodged in the President
to be exercised by her in her sound judgment. Under
the second paragraph of Section 16, Article VII of the
Constitution, the President can choose either of two
modes in appointing officials who are subject to
confirmation by the Commission on Appointments. First,
while Congress is in session, the President may
nominate the prospective appointee, and pending
consent of the Commission on Appointments, the
nominee cannot qualify and assume office. Second,
during the recess of Congress, the President may extend
an ad interim appointment which allows the appointee to
immediately qualify and assume office.
Whether the President chooses to nominate the
prospective appointee or extend an ad interim
appointment is a matter within the prerogative of the
President because the Constitution grants her that
power. This Court cannot inquire into the propriety of
the choice made by the President in the exercise of her
constitutional power, absent grave abuse of discretion
amounting to lack or excess of jurisdiction on her part,
which has not been shown in the instant case.
The issuance by Presidents of ad interim appointments
to the COMELEC is a long-standing practice. X x x
The President’s power to extend ad interim
appointments may indeed briefly put the appointee at
the mercy of both the appointing and confirming
powers. This situation, however, in only for a short
period – from the time of issuance of the ad interim
appointment until the Commission on Appointments
gives or withholds its consent. The Constitution itself
sanctions this situation, as a trade-off against the evil of
disruptions in vital government services. This is also
part of the check-and-balance under the separation of
powers, as a trade-off against the evil of granting the
President absolute and sole power to appoint. The
Constitution has wisely subjected the President’s
appointing power to the checking power of the
legislature.
This situation, however, does not compromise the
independence of the COMELEC as a constitutional body.
The vacancies in the COMELEC are precisely staggered
to insure that the majority of its members hold
confirmed appointments, and no one President will
appoint all the COMELEC members. X x x. The special
constitutional safeguards that insure the independence
of the COMELEC remain in place (See Sections, 3, 4, 5
and 6, Article IX-A of the Constitution).
In fine, we rule that the ad interim appointments
extended by the President to Benipayo, Borra and
Tuason, as COMELEC Chairman and Commissioners,
respectively, do not constitute temporary or acting
appointments prohibited by Section 1 (2), Article IX-C of
the Constitution. (Matibag v. Benipayo, 380 SCRA
49, April 2, 2002, En Banc [Carpio])
90. Does the renewal of ad interim appointments
violate the prohibition on reappointment under Section
1(2), Article IX-C of the 1987 Constitution?
Held: Petitioner also argues that assuming the
first ad interim appointment and the first assumption of
office of Benipayo, Borra and Tuason are constitutional,
the renewal of their ad interim appointments and their
subsequent assumption of office to the same positions
violate the prohibition on reappointment under Section 1
(2), Article IX-C of the Constitution, which provides as
follows:
“The Chairman and the Commissioners shall be
appointed by the President with the consent of the
Commission on Appointments for a term of seven years
without reappointment. Of those first appointed, three
Members shall hold office for seven years, two Members
for five years, and the last Members for three years,
without reappointment.”
Petitioner theorizes that once an ad interim appointee is
by-passed by the Commission on Appointments, his ad
interim appointment can no longer be renewed because
this will violate Section 1 (2), Article IX-C of the
Constitution which prohibits reappointments. Petitioner
asserts that this is particularly true to permanent
appointees who have assumed office, which is the
situation of Benipayo, Borra and Tuason if their ad
interim appointments are deemed permanent in
character.
There is no dispute that an ad interim appointee
disapproved by the Commission on Appointments can no
longer be extended a new appointment. The
disapproval is a final decision of the Commission on
Appointments in the exercise of its checking power on
the appointing authority of the President. The
disapproval is a decision on the merits, being a refusal
by the Commission on Appointments to give its consent
after deliberating on the qualifications of the appointee.
Since the Constitution does not provide for any appeal
from such decision, the disapproval is final and binding
on the appointee as well as on the appointing power. In
this instance, the President can no longer renew the
appointment not because of the constitutional
prohibition on appointment, but because of a final
decision by the Commission on Appointments to
withhold its consent to the appointment.
An ad interim appointment that is by-passed
because of lack of time or failure of the Commission on
Appointments to organize is another matter. A by-
passed appointment is one that has not been finally
acted upon on the merits by the Commission on
Appointments at the close of the session of Congress.
There is no final decision by the Commission on
Appointments to give or withhold its consent to the
appointment as required by the Constitution. Absent
such decision, the President is free to renew the ad
interim appointment of a by-passed appointee. This is
recognized in Section 17 of the Rules of the Commission
on Appointments x x x. Hence, under the Rules of the
Commission on Appointments, a by-passed appointment
can be considered again if the President renew the
appointment.
It is well-settled in this jurisdiction that the
President can renew the ad interim appointments of by-
passed appointees. Justice Roberto Concepcion, Jr.
lucidly explained in his concurring opinion in Guevarra v.
Inocentes (Supra, note 34) why by-passed ad interim
appointees could be extended new appointments, thus:
“In short, an ad interim appointment ceases to be
effective upon disapproval by the Commission, because
the incumbent can not continue holding office over the
positive objection of the Commission. It ceases, also,
upon “the next adjournment of the Congress”, simply
because the President may then issue new appointments
– not because of implied disapproval of the Commission
deduced from its intention during the session of
Congress, for, under the Constitution, the Commission
may affect adversely the interim appointments only by
action, never by omission. If the adjournment of
Congress were an implied disapproval of ad interim
appointments made prior thereto, then the President
could no longer appoint those so by-passed by the
Commission. But, the fact is that the President may
reappoint them, thus clearly indicating that the reason
for said termination of the ad interim appointments is
not the disapproval thereof allegedly inferred from said
omission of the Commission, but the circumstance that
upon said adjournment of the Congress, the President is
free to make ad interim appointments or
reappointments.”
Guevarra was decided under the 1935 Constitution from
where the second paragraph of Section 16, Article VII of
the present Constitution on ad interim appointments was
lifted verbatim. The jurisprudence under the 1935
Constitution governing ad interim appointments by the
President is doubtless applicable to the present
Constitution. The established practice under the present
Constitution is that the President can renew the
appointments of by-passed ad interim appointees. This
is a continuation of the well-recognized practice under
the 1935 Constitution, interrupted only by the 1973
Constitution which did not provide for a Commission on
Appointments but vested sole appointing power in the
President.
The prohibition on reappointment in Section 1
(2), Article IX-C of the Constitution applies neither to
disapproval nor by-passed ad interim appointments. A
disapproved ad interim appointment cannot be revived
by another ad interim appointment because the
disapproval is final under Section 16, Article VII of the
Constitution, and not because a reappointment is
prohibited under Section 1 (2), Article IX-C of the
Constitution. A by-passed ad interim appointment
cannot be revived by a new ad interim appointment
because there is no final disapproval under Section 16,
Article VII of the Constitution, and such new
appointment will not result in the appointee serving
beyond the fixed term of seven years.
Section 1 (2), Article IX-C of the Constitution
provides that “[t]he Chairman and the Commissioners
shall be appointed x x x for a term of seven years
without reappointment.” There are four situations
where this provision will apply. The first situation is
where an ad interim appointee to the COMELEC, after
confirmation by the Commission on Appointments,
serves his full seven-year term. Such person cannot be
reappointed to the COMELEC, whether as a member or
as a chairman, because he will then be actually serving
more than seven years. The second situation is where
the appointee, after confirmation, serves a part of his
term and then resigns before his seven-year term of
office ends. Such person cannot be reappointed,
whether as a member or as a chair, to a vacancy arising
from retirement because a reappointment will result in
the appointee also serving more than seven years. The
third situation is where the appointee is confirmed to
serve the unexpired term of someone who died or
resigned, and the appointee completes the unexpired
term. Such person cannot be reappointed, whether as a
member or chair, to a vacancy arising from retirement
because a reappointment will result in the appointee
also serving more than seven years.
The fourth situation is where the appointee has
previously served a term of less than seven years, and a
vacancy arises from death or resignation. Even if it will
not result in his serving more than seven years, a
reappointment of such person to serve an unexpired
term is also prohibited because his situation will be
similar to those appointed under the second sentence of
Section 1 (2), Article IX-C of the Constitution. This
provision refers to the first appointees under the
Constitution whose terms of office are less than seven
years, but are barred from ever being reappointed under
any situation. Not one of these four situations applies to
the case of Benipayo, Borra and Tuason.
The framers of the Constitution made it quite
clear that any person who has served any term of office
as COMELEC member – whether for a full term of seven
years, a truncated term of five or three years, or even
an unexpired term for any length of time – can no
longer be reappointed to the COMELEC. X x x
Xxx
In Visarra v. Miraflor (8 SCRA 1 [1963]), Justice Angelo
Bautista, in his concurring opinion, quoted Nacionalista
v. De Vera (85 Phil. 126 [1949]) that a [r]eappointment
is not prohibited when a Commissioner has held, office
only for, say, three or six years, provided his term will
not exceed nine years in all.” This was the
interpretation despite the express provision in the 1935
Constitution that a COMELEC member “shall hold office
for a term of nine years and may not be reappointed.”
To foreclose this interpretation, the phrase
“without reappointment” appears twice in Section 1 (2),
Article IX-C of the present Constitution. The first phrase
prohibits reappointment of any person previously
appointed for a term of seven years. The second phrase
prohibits reappointment of any person previously
appointed for a term of five or three years pursuant to
the first set of appointees under the Constitution. In
either case, it does not matter if the person previously
appointed completes his term of office for the intention
is to prohibit any reappointment of any kind.
However, an ad interim appointment that has
lapsed by inaction of the Commission on Appointments
does not constitute a term of office. The period from
the time the ad interim appointment is made to the time
it lapses is neither a fixed term nor an unexpired term.
To hold otherwise would mean that the President by his
unilateral action could start and complete the running of
a term of office in the COMELEC without the consent of
the Commission on Appointments. This interpretation
renders inutile the confirming power of the Commission
on Appointments.
The phrase “without reappointment” applies
only to one who has been appointed by the President
and confirmed by the Commission on Appointments,
whether or not such person completes his term of office.
There must be a confirmation by the Commission on
Appointments of the previous appointment before the
prohibition on reappointment can apply. To hold
otherwise will lead to absurdities and negate the
President’s power to make ad interim appointments.
In the great majority of cases, the Commission
on Appointments usually fails to act, for lack of time, on
the ad interim appointments first issued to appointees.
If such ad interim appointments can no longer be
renewed, the President will certainly hesitate to make ad
interim appointments because most of her appointees
will effectively be disapproved by mere inaction of the
Commission on Appointments. This will nullify the
constitutional power of the President to make ad interim
appointments, a power intended to avoid disruptions in
vital government services. This Court cannot subscribe
to a proposition that will wreak havoc on vital
government services.
The prohibition on reappointment is common to
the three constitutional commissions. The framers of
the present Constitution prohibited reappointments for
two reasons. The first is to prevent a second
appointment for those who have been previously
appointed and confirmed even if they served for less
than seven years. The second is to insure that the
members of the three constitutional commissions do not
serve beyond the fixed term of seven years. X x x.
Xxx
Plainly, the prohibition on reappointment is intended to
insure that there will be no reappointment of any kind.
On the other hand, the prohibition on temporary or
acting appointments is intended to prevent any
circumvention of the prohibition on reappointment that
may result in an appointee’s total term of office
exceeding seven years. The evils sought to be avoided
by the twin prohibitions are very specific –
reappointment of any kind and exceeding one’s term in
office beyond the maximum period of seven years.
Not contented with these ironclad twin prohibitions, the
framers of the Constitution tightened even further the
screws on those who might wish to extend their terms of
office. Thus, the word “designated” was inserted to plug
any loophole that might be exploited by violators of the
Constitution x x x.
The ad interim appointments and subsequent
renewals of appointments of Benipayo, Borra and
Tuason do not violate the prohibition on reappointments
because there were no previous appointments that were
confirmed by the Commission on Appointments. A
reappointment presupposes a previous confirmed
appointment. The same ad interim appointments and
renewal of appointments will also not breach the seven-
year term limit because all the appointments and
renewals of appointments of Benipayo, Borra and
Tuason are for a fixed term expiring on February 2,
2008. Any delay in their confirmation will not extend the
expiry date of their terms of office. Consequently, there
is no danger whatsoever that the renewal of the ad
interim appointments of these three respondents will
result in any of the evils intended to be exorcised by the
twin prohibitions in the Constitution. The continuing
renewal of the ad interim appointment of these three
respondents, for so long as their terms of office expire
on February 2, 2008, does not violate the prohibition on
reappointments in Section 1 (2), Article IX-C of the
Constitution. (Matibag v. Benipayo, 380 SCRA 49,
April 2, 2002, En Banc [Carpio])
91. Ma. Evelyn S. Abeja was a municipal mayor. She
ran for reelection but lost. Before she vacated her office,
though, she extended permanent appointments to
fourteen new employees of the municipal government.
The incoming mayor, upon assuming office, recalled said
appointments contending that these were “midnight
appointments” and, therefore, prohibited under Sec. 15,
Art. VII of the 1987 Constitution. Should the act of the
new mayor of recalling said appointments on the
aforestated ground be sustained?
Held: The records reveal that when the petitioner
brought the matter of recalling the appointments of the
fourteen (14) private respondents before the CSC, the
only reason he cited to justify his action was that these
were “midnight appointments” that are forbidden under
Article VII, Section 15 of the Constitution. However, the
CSC ruled, and correctly so, that the said prohibition
applies only to presidential appointments. In truth and in
fact, there is no law that prohibits local elective officials
from making appointments during the last days of his or
her tenure. (De Rama v. Court of Appeals (353
SCRA 94, Feb. 28, 2001, En Banc [Ynares-
Santiago])
92. Distinguish the President’s power to call out the
armed forces as their Commander-in-Chief in order to
prevent or suppress lawless violence, invasion or
rebellion, from his power to proclaim martial and suspend
the privilege of the writ of habeas corpus. Explain why
the former is not subject to judicial review while the latter
two are.
Held: There is a clear textual commitment under the
Constitution to bestow on the President full discretionary
power to call out the armed forces and to determine the
necessity for the exercise of such power. Section 18,
Article VII of the Constitution, which embodies the powers
of the President as Commander-in-Chief, provides in part:
The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent
or suppress lawless violence, invasion or rebellion. In
case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas corpus, or
place the Philippines or any part thereof under martial
law.
The full discretionary power of the President to determine
the factual basis for the exercise of the calling out power
is also implied and further reinforced in the rest of Section
18, Article VII x x x.
Under the foregoing provisions, Congress may revoke
such proclamations (of martial law) or suspension (of the
privilege of the writ of habeas corpus) and the Court may
review the sufficiency of the factual basis thereof.
However, there is no such equivalent provision dealing
with the revocation or review of the President's action to
call out the armed forces. The distinction places the
calling out power in a different category from the power
to declare martial law and the power to suspend the
privilege of the writ of habeas corpus, otherwise, the
framers of the Constitution would have simply lumped
together the three powers and provided for their
revocation and review without any qualification.
Expressio unios est exclusio alterius. X x x. That the
intent of the Constitution is exactly what its letter says,
i.e., that the power to call is fully discretionary to the
President, is extant in the deliberation of the
Constitutional Commission x x x.
The reason for the difference in the treatment of the
aforementioned powers highlights the intent to grant the
President the widest leeway and broadest discretion in
using the power to call out because it is considered as the
lesser and more benign power compared to the power to
suspend the privilege of the writ of habeas corpus and the
power to impose martial law, both of which involve the
curtailment and suppression of certain basic civil rights
and individual freedoms, and thus necessitating
safeguards by Congress and review by this Court.
Moreover, under Section 18, Article VII of the
Constitution, in the exercise of the power to suspend the
privilege of the writ of habeas corpus or to impose martial
law, two conditions must concur: (1) there must be an
actual invasion or rebellion and, (2) public safety must
require it. These conditions are not required in the case
of the power to call out the armed forces. The only
criterion is that "whenever it becomes necessary," the
President may call the armed forces "to prevent or
suppress lawless violence, invasion or rebellion." The
implication is that the President is given full discretion and
wide latitude in the exercise of the power to call as
compared to the two other powers.
If the petitioner fails, by way of proof, to support the
assertion that the President acted without factual basis,
then this Court cannot undertake an independent
investigation beyond the pleadings. The factual necessity
of calling out the armed forces is not easily quantifiable
and cannot be objectively established since matters
considered for satisfying the same is a combination of
several factors which are not always accessible to the
courts. Besides the absence of textual standards that the
court may use to judge necessity, information necessary
to arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent
information might be difficult to verify, or wholly
unavailable to the courts. In many instances, the
evidence upon which the President might decide that
there is a need to call out the armed forces may be of a
nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief
has a vast intelligence network to gather information,
some of which may be classified as highly confidential or
affecting the security of the state. In the exercise of the
power to call, on-the-spot decisions may be imperatively
necessary in emergency situations to avert great loss of
human lives and mass destruction of property. Indeed,
the decision to call out the military to prevent or suppress
lawless violence must be done swiftly and decisively if it
were to have any effect at all. Such a scenario is not
farfetched when we consider the present situation in
Mindanao, where the insurgency problem could spill over
the other parts of the country. The determination of the
necessity for the calling out power if subjected to
unfettered judicial scrutiny could be a veritable
prescription for disaster, as such power may be unduly
straitjacketed by an injunction or a temporary restraining
order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest
upon the President, as Commander-in-Chief of the Armed
Forces, full discretion to call forth the military when in his
judgment it is necessary to do so in order to prevent or
suppress lawless violence, invasion or rebellion. Unless
the petitioner can show that the exercise of such
discretion was gravely abused, the President's exercise of
judgment deserves to be accorded respect from this
Court. (Integrated Bar of the Philippines v. Hon.
Ronaldo B. Zamora, G.R. No. 141284, Aug. 15,
2000, En Banc [Kapunan])
93. By issuing a TRO on the date convicted rapist Leo
Echegaray is to be executed by lethal injection, the
Supreme Court was criticized on the ground, among
others, that it encroached on the power of the President
to grant reprieve under Section 19, Article VII, 1987
Constitution. Justify the SC's act.
Held: Section 19, Article VII of the 1987 Constitution is
simply the source of power of the President to grant
reprieves, commutations, and pardons and remit fines
and forfeitures after conviction by final judgment. This
provision, however, cannot be interpreted as denying the
power of courts to control the enforcement of their
decisions after the finality. In truth, an accused who has
been convicted by final judgment still possesses collateral
rights and these rights can be claimed in the appropriate
courts. For instance, a death convict who becomes insane
after his final conviction cannot be executed while in a
state of insanity (See Article 79 of the Revised Penal
Code). The suspension of such a death sentence is
undisputably an exercise of judicial power. It is not
usurpation of the presidential power of reprieve though
its effect is the same – the temporary suspension of the
execution of the death convict. In the same vein, it
cannot be denied that Congress can at any time amend
R.A. No. 7659 by reducing the penalty of death to life
imprisonment. The effect of such an amendment is like
that of commutation of sentence. But by no stretch of
the imagination can the exercise by Congress of its
plenary power to amend laws be considered as a violation
of the President’s power to commute final sentences of
conviction. The powers of the Executive, the Legislative
and the Judiciary to save the life of a death convict do not
exclude each other for the simple reason that there is no
higher right than the right to life. (Echegaray v.
Secretary of Justice, 301 SCRA 96, Jan. 19, 1999,
En Banc [Puno])
94. Discuss the nature of a conditional pardon. Is its
grant or revocation by the President subject to judicial
review?
Held: A conditional pardon is in the nature of a contract
between the sovereign power or the Chief Executive and
the convicted criminal to the effect that the former will
release the latter subject to the condition that if he does
not comply with the terms of the pardon, he will be
recommitted to prison to serve the unexpired portion of
the sentence or an additional one (Alvarez v. Director of
Prisons, 80 Phil. 50). By the pardonee’s consent to the
terms stipulated in this contract, the pardonee has
thereby placed himself under the supervision of the Chief
Executive or his delegate who is duty-bound to see to it
that the pardonee complies with the terms and conditions
of the pardon. Under Section 64(i) of the Revised
Administrative Code, the Chief Executive is authorized to
order “the arrest and re-incarceration of any such person
who, in his judgment, shall fail to comply with the
condition, or conditions of his pardon, parole, or
suspension of sentence.” It is now a well-entrenched rule
in this jurisdiction that this exercise of presidential
judgment is beyond judicial scrutiny. The determination
of the violation of the conditional pardon rests exclusively
in the sound judgment of the Chief Executive, and the
pardonee, having consented to place his liberty on
conditional pardon upon the judgment of the power that
has granted it, cannot invoke the aid of the courts,
however erroneous the findings may be upon which his
recommitment was ordered.
It matters not that the pardonee has allegedly been
acquitted in two of the three criminal cases filed against
him subsequent to his conditional pardon, and that the
third remains pending for thirteen (13) years in apparent
violation of his right to a speedy trial.
Ultimately, solely vested in the Chief Executive, who in
the first place was the exclusive author of the conditional
pardon and of its revocation, is the corollary prerogative
to reinstate the pardon if in his own judgment, the
acquittal of the pardonee from the subsequent charges
filed against him, warrants the same. Courts have no
authority to interfere with the grant by the President of a
pardon to a convicted criminal. It has been our fortified
ruling that a final judicial pronouncement as to the guilt
of a pardonee is not a requirement for the President to
determine whether or not there has been a breach of the
terms of a conditional pardon. There is likewise nil a basis
for the courts to effectuate the reinstatement of a
conditional pardon revoked by the President in the
exercise of powers undisputably solely and absolutely in
his office. (In Re: Wilfredo Sumulong Torres, 251
SCRA 709, Dec. 29, 1995 [Hermosisima])
95. Who has the power to ratify a treaty?
Held: In our jurisdiction, the power to ratify is vested in
the President and not, as commonly believed, in the
legislature. The role of the Senate is limited only to giving
or withholding its consent, or concurrence, to the
ratification. (BAYAN [Bagong Alyansang
Makabayan] v. Executive Secretary Ronaldo
Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc
[Buena])
96. What is the power of impoundment of the
President? What are its principal sources?
Held: Impoundment refers to the refusal of the
President, for whatever reason, to spend funds made
available by Congress. It is the failure to spend or
obligate budget authority of any type.
Proponents of impoundment have invoked at least three
principal sources of the authority of the President.
Foremost is the authority to impound given to him either
expressly or impliedly by Congress. Second is the
executive power drawn from the President’s role as
Commander-in-Chief. Third is the Faithful Execution
Clause.
The proponents insist that a faithful execution of the laws
requires that the President desist from implementing the
law if doing so would prejudice public interest. An
example given is when through efficient and prudent
management of a project, substantial savings are made.
In such a case, it is sheer folly to expect the President to
spend the entire amount budgeted in the law.
(PHILCONSA v. Enriquez, 235 SCRA 506, Aug. 9,
1994 [Quiason])
97. Distinguish the President’s power of general
supervision over local governments from his control
power.
Held: On many occasions in the past, this
Court has had the opportunity to distinguish the power
of supervision from the power of control. In Taule v.
Santos (200 SCRA 512 [1991]), we held that the Chief
Executive wielded no more authority than that of
checking whether a local government or the officers
thereof perform their duties as provided by statutory
enactments. He cannot interfere with local governments
provided that the same or its officers act within the
scope of their authority. Supervisory power, when
contrasted with control, is the power of mere oversight
over an inferior body; it does not include any restraining
authority over such body (Ibid.). Officers in control lay
down the rules in the doing of an act. If they are not
followed, it is discretionary on his part to order the act
undone or redone by his subordinate or he may even
decide to do it himself. Supervision does not cover such
authority. Supervising officers merely see to it that the
rules are followed, but he himself does not lay down
such rules, nor does he have the discretion to modify or
replace them. If the rules are not observed, he may
order the work done or re-done to conform to the
prescribed rules. He cannot prescribe his own manner
for the doing of the act (Drilon v. Lim, supra, 142).
(Bito-Onon v. Fernandez, 350 SCRA 732, Jan. 31,
2001, 3rd Div. [Gonzaga-Reyes])
98. Is the absence of a recommendation of the
Secretary of Justice to the President fatal to the
appointment of respondent as prosecutor?
Held: This question would x x x pivot on the proper
understanding of the provision of the Revised
Administrative Code of 1987 (Book IV, Title III, Chapter
II, Section 9) to the effect that –
“All provincial and city prosecutors and their assistants
shall be appointed by the President upon the
recommendation of the Secretary.”
Petitioners contend that an appointment of a provincial
prosecutor mandatorily requires a prior recommendation
of the Secretary of Justice endorsing the intended
appointment citing, by analogy, the case of San Juan v.
CSC (196 SCRA 69) x x x.
When the Constitution or the law clothes the
President with the power to appoint a subordinate officer,
such conferment must be understood as necessarily
carrying with it an ample discretion of whom to appoint.
It should be here pertinent to state that the President is
the head of government whose authority includes the
power of control over all “executive departments, bureaus
and offices.” Control means the authority of an
empowered officer to alter or modify, or even nullify or
set aside, what a subordinate officer has done in the
performance of his duties, as well as to substitute the
judgment of the latter, as and when the former deems it
to be appropriate. Expressed in another way, the
President has the power to assume directly the functions
of an executive department, bureau and office. It can
accordingly be inferred therefrom that the President can
interfere in the exercise of discretion of officials under him
or altogether ignore their recommendations.
It is the considered view of the Court, given the
above disquisition, that the phrase “upon
recommendation of the Secretary,” found in Section 9,
Chapter II, Title III, Book IV, of the Revised
Administrative Code, should be interpreted, as it is
normally so understood, to be a mere advise, exhortation
or indorsement, which is essentially persuasive in
character and not binding or obligatory upon the party to
whom it is made. The recommendation is here nothing
really more than advisory in nature. The President, being
the head of the Executive Department, could very well
disregard or do away with the action of the departments,
bureaus or offices even in the exercise of discretionary
authority, and in so opting, he cannot be said as having
acted beyond the scope of his authority.
The doctrine in San Juan, relied upon by
petitioners, is tangential. While the tenor of the legal
provision in Executive Order No. 112 has some similarity
with the provision in the 1987 Administrative Code in
question, it is to be pointed out, however, that San Juan
(196 SCRA 69), in construing the law, has distinctively
given stress to the constitutional mandate on local
autonomy; x x x. The Court there has explained that the
President merely exercises general supervision over local
government units and local officials (Section 4, Article X,
Constitution); hence, in the appointment of a Provincial
Budget Officer, the executive department, through the
Secretary of Budget and Management, indeed had to
share the questioned power with the local government.
In the instant case, the recommendation of the
Secretary of Justice and the appointment of the President
are acts of the Executive Department itself, and there is
no sharing of power to speak of, the latter being deemed
for all intents and purposes as being merely an extension
of the personality of the President. (Bermudez v.
Executive Secretary Ruben Torres, G.R. No.
131429, Aug. 4, 1999, 3rd Div. [Vitug])
99. Discuss the three distinct powers of the
President under Section 18, Art. VII of the 1987
Constitution. Are they subject to judicial review, or are
they political questions?
Ans.: There are three distinct powers of the
President under Sec. 18, Art. VII of the Constitution, to
wit: 1) her calling out power, as Commander-in-Chief of
the Armed Forces; 2) her martial law power; and 3) her
power to suspend the privilege of the writ of habeas
corpus.
Her martial law power and her power to suspend
the privilege of the writ of habeas corpus are subject to
judicial review as expressly provided under Sec. 18, Art.
VII of the 1987 Constitution because these two are the
greater powers, compared with her calling out power, as
they involve the curtailment and suppression of certain
basic civil rights and individual freedoms (IBP v. Zamora,
G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan]).
Her calling out power is a political question and
not subject to judicial power as this is the lesser and more
benign of the three powers under Sec. 18, Art. VII of the
1987 Constitution (IBP v. Zamora, G.R. No. 141284, Aug.
15, 2000, En Banc [Kapunan]). It is a question in regard
to which full discretionary authority has been delegated
by the Constitution to the President, as their Commander-
in-Chief, to call out the armed forces whenever she deems
it necessary in order to prevent or suppress lawless
violence, invasion, or rebellion. To subject such calling
out power to unfettered judicial scrutiny could be a
veritable prescription for disaster as such power may be
unduly straitjacketed by an injunction or a TRO every time
it is exercised.
Unless it can be shown that the exercise of such
discretion to call out the armed forces was gravely
abused, the President’s exercise of judgment deserves to
be accorded respect from the Court. And the burden to
show that the President gravely abused her discretion in
calling out the armed forces to prevent or suppress
lawless violence, invasion, or rebellion, lies
The Judicial Department
100. What are the requisites before the Court can
exercise the power of judicial review?
Held: 1. The time-tested standards for the exercise of
judicial review are: (1) the existence of an appropriate
case; (2) an interest personal and substantial by the party
raising the constitutional question; (3) the plea that the
function be exercised at the earliest opportunity; and (4)
the necessity that the constitutional question be passed
upon in order to decide the case (Separate Opinion,
Kapunan, J., in Isagani Cruz v. Secretary of
Environment and Natural Resources, et al., G.R.
No. 135385, Dec. 6, 2000, En Banc).
2. When questions of constitutional significance are
raised, the Court can exercise its power of judicial review
only if the following requisites are complied with, namely:
(1) the existence of an actual and appropriate case; (2) a
personal and substantial interest of the party raising the
constitutional question; (3) the exercise of judicial review
is pleaded at the earliest opportunity; and (4) the
constitutional question is the lis mota of the case.
(Integrated Bar of the Philippines v. Hon. Ronaldo
B. Zamora, G.R. No. 141284, Aug. 15, 2000, En
Banc [Kapunan])
101. What is an "actual case or controversy"?
Held: An "actual case or controversy" means an existing
case or controversy which is both ripe for resolution and
susceptible of judicial determination, and that which is not
conjectural or anticipatory, or that which seeks to resolve
hypothetical or feigned constitutional problems. A
petition raising a constitutional question does not present
an "actual controversy," unless it alleges a legal right or
power. Moreover, it must show that a conflict of rights
exists, for inherent in the term "controversy" is the
presence of opposing views or contentions. Otherwise,
the Court will be forced to resolve issues which remain
unfocused because they lack such concreteness provided
when a question emerges precisely framed from a clash
of adversary arguments exploring every aspect of a multi-
faceted situation embracing conflicting and demanding
interests. The controversy must also be justiciable; that
is, it must be susceptible of judicial determination.
(Integrated Bar of the Philippines v. Hon. Ronaldo
B. Zamora, G.R. No. 141284, Aug. 15, 2000, En
Banc [Kapunan])
102. Petitioners Isagani Cruz and Cesar Europa
brought a suit for prohibition and mandamus as citizens
and taxpayers, assailing the constitutionality of certain
provisions of Republic Act No. 8371, otherwise known as
the Indigenous Peoples Rights Act of 1997 (IPRA), and its
Implementing Rules and Regulations. A preliminary issue
resolved by the SC was whether the petition presents an
actual controversy.
Held: Courts can only decide actual controversies, not
hypothetical questions or cases. The threshold issue,
therefore, is whether an "appropriate case" exists for the
exercise of judicial review in the present case.
Xxx
In the case at bar, there exists a live controversy involving
a clash of legal rights. A law has been enacted, and the
Implementing Rules and Regulations approved. Money
has been appropriated and the government agencies
concerned have been directed to implement the statute.
It cannot be successfully maintained that we should await
the adverse consequences of the law in order to consider
the controversy actual and ripe for judicial resolution. It
is precisely the contention of the petitioners that the law,
on its face, constitutes an unconstitutional abdication of
State ownership over lands of the public domain and
other natural resources. Moreover, when the State
machinery is set into motion to implement an alleged
unconstitutional statute, this Court possesses sufficient
authority to resolve and prevent imminent injury and
violation of the constitutional process. (Separate
Opinion, Kapunan, J., in Isagani Cruz v. Secretary
of Environment and Natural Resources, et al., G.R.
No. 135385, Dec. 6, 2000, En Banc)
103. What is the meaning of "legal standing" or locus
standi?

Held: "Legal standing" or locus standi has been defined
as a personal and substantial interest in the case such
that the party has sustained or will sustain direct injury as
a result of the governmental act that is being challenged .
The term "interest" means a material interest, an interest
in issue affected by the decree, as distinguished from
mere interest in the question involved, or a mere
incidental interest. The gist of the question of standing is
whether a party alleges "such personal stake in the
outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues
upon which the court depends for illumination of difficult
constitutional questions." (Integrated Bar of the
Philippines v. Hon. Ronaldo B. Zamora, G.R. No.
141284, Aug. 15, 2000)
In addition to the existence of an actual case or
controversy, a person who assails the validity of a statute
must have a personal and substantial interest in the case,
such that, he has sustained, or will sustain, a direct injury
as a result of its enforcement. Evidently, the rights
asserted by petitioners as citizens and taxpayers are held
in common by all the citizens, the violation of which may
result only in a "generalized grievance". Yet, in a sense,
all citizen's and taxpayer's suits are efforts to air
generalized grievances about the conduct of government
and the allocation of power. (Separate Opinion,
Kapunan, J., in Isagani Cruz v. Secretary of
Environment and Natural Resources, et al., G.R.
No. 135385, Dec. 6, 2000, En Banc)
104. Asserting itself as the official organization of
Filipino lawyers tasked with the bounden duty to uphold
the rule of law and the Constitution, the Integrated Bar of
the Philippines (IBP) filed a petition before the SC
questioning the validity of the order of the President
commanding the deployment and utilization of the
Philippine Marines to assist the Philippine National Police
(PNP) in law enforcement by joining the latter in visibility
patrols around the metropolis. The Solicitor General
questioned the legal standing of the IBP to file the
petition? Resolve.
Held: In the case at bar, the IBP primarily anchors its
standing on its alleged responsibility to uphold the rule of
law and the Constitution. Apart from this declaration,
however, the IBP asserts no other basis in support of its
locus standi. The mere invocation by the IBP of its duty
to preserve the rule of law and nothing more, while
undoubtedly true, is not sufficient to clothe it with
standing in this case. This is too general an interest which
is shared by other groups and the whole citizenry. Based
on the standards above-stated, the IBP has failed to
present a specific and substantial interest in the resolution
of the case. Its fundamental purpose which, under
Section 2, Rule 139-A of the Rules of Court, is to elevate
the standards of the law profession and to improve the
administration of justice is alien to, and cannot be
affected by the deployment of the Marines. x x x
Moreover, the IBP x x x has not shown any specific injury
which it has suffered or may suffer by virtue of the
questioned governmental act. Indeed, none of its
members, whom the IBP purportedly represents, has
sustained any form of injury as a result of the operation
of the joint visibility patrols. Neither is it alleged that any
of its members has been arrested or that their civil
liberties have been violated by the deployment of the
Marines. What the IBP projects as injurious is the
supposed "militarization" of law enforcement which might
threaten Philippine democratic institutions and may cause
more harm than good in the long run. Not only is the
presumed "injury" not personal in character, it is likewise
too vague, highly speculative and uncertain to satisfy the
requirement of standing. Since petitioner has not
successfully established a direct and personal injury as a
consequence of the questioned act, it does not possess
the personality to assail the validity of the deployment of
the Marines. This Court, however, does not categorically
rule that the IBP has absolutely no standing to raise
constitutional issues now or in the future. The IBP must,
by way of allegations and proof, satisfy this Court that it
has sufficient stake to obtain judicial resolution of the
controversy. (Integrated Bar of the Philippines v.
Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15,
2000, En Banc [Kapunan])
105. Considering the lack of requisite standing of the
IBP to file the petition questioning the validity of the order
of the President to deploy and utilize the Philippine
Marines to assist the PNP in law enforcement, may the
Court still properly take cognizance of the case?
Held: Having stated the foregoing, it must be
emphasized that this Court has the discretion to take
cognizance of a suit which does not satisfy the
requirement of legal standing when paramount interest is
involved. In not a few cases, the Court has adopted a
liberal attitude on the locus standi of a petitioner where
the petitioner is able to craft an issue of transcendental
significance to the people . Thus, when the issues raised
are of paramount importance to the public, the Court may
brush aside technicalities of procedure. In this case, a
reading of the petition shows that the IBP has advanced
constitutional issues which deserve the attention of this
Court in view of their seriousness, novelty and weight as
precedents. Moreover, because peace and order are
under constant threat and lawless violence occurs in
increasing tempo, undoubtedly aggravated by the
Mindanao insurgency problem, the legal controversy
raised in the petition almost certainly will not go away. It
will stare us in the face again. It, therefore, behooves the
Court to relax the rules on standing and to resolve the
issue now, rather than later. (Integrated Bar of the
Philippines v. Hon. Ronaldo B. Zamora, G.R. No.
141284, Aug. 15, 2000)
106. What are the requisites for the proper exercise
of the power of judicial review? Illustrative case.
Held: Respondents assert that the petition fails
to satisfy all the four requisites before this Court may
exercise its power of judicial review in constitutional
cases. Out of respect for the acts of the Executive
department, which is co-equal with this Court,
respondents urge this Court to refrain from reviewing
the constitutionality of the ad interim appointments
issued by the President to Benipayo, Borra and Tuason
unless all the four requisites are present. X x x
Respondents argue that the second, third and
fourth requisites are absent in this case. Respondents
maintain that petitioner does not have a personal and
substantial interest in the case because she has not
sustained a direct injury as a result of the ad interim
appointments of Benipayo, Borra and Tuason and their
assumption of office. Respondents point out that
petitioner does not claim to be lawfully entitled to any of
the positions assumed by Benipayo, Borra or Tuason.
Neither does petitioner claim to be directly injured by
the appointments of these three respondents.
Respondents also contend that petitioner failed
to question the constitutionality of the ad interim
appointments at the earliest opportunity. Petitioner filed
the petition only on August 3, 2001 despite the fact that
the ad interim appointments of Benipayo, Borra and
Tuason were issued as early as March 22, 2001.
Moreover, the petition was filed after the third time that
these three respondents were issued ad interim
appointments.
Respondents insist that the real issue in this
case is the legality of petitioner’s reassignment from the
EID to the Law Department. Consequently, the
constitutionality of the ad interim appointments is not
the lis mota of this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID,
where she was Acting Director, to the Law Department,
where she was placed on detail. Respondents claim that
the reassignment was “pursuant to x x x Benipayo’s
authority as Chairman of the Commission on Elections,
and as the Commission’s Chief Executive Officer.”
Evidently, respondents’ anchor the legality of petitioner’s
reassignment on Benipayo’s authority as Chairman of
the COMELEC. The real issue then turns on whether or
not Benipayo is the lawful Chairman of the COMELEC.
Even if petitioner is only an Acting director of the EID,
her reassignment is without legal basis if Benipayo is not
the lawful COMELEC Chairman, an office created by the
Constitution.
On the other hand, if Benipayo is the lawful
COMELEC Chairman because he assumed office in
accordance with the Constitution, then petitioner’s
reassignment is legal and she has no cause to complain
provided the reassignment is in accordance with the Civil
Service Law. Clearly, petitioner has a personal and
material stake in the resolution of the constitutionality of
Benipayo’s assumption of office. Petitioner’s personal
and substantial injury, if Benipayo is not the lawful
COMELEC Chairman, clothes her with the requisite locus
standi to raise the constitutional issue in this petition.
Respondents harp on petitioner’s belated act of
questioning the constitutionality of the ad interim
appointments of Benipayo, Borra and Tuason. Petitioner
filed the instant petition only on August 3, 2001, when
the first ad interim appointments were issued as early as
March 22, 2001. However, it is not the date of filing of
the petition that determines whether the constitutional
issue was raised at the earliest opportunity. The earliest
opportunity to raise a constitutional issue is to raise it in
the pleadings before a competent court that can resolve
the same, such that, “if it is not raised in the pleadings,
it cannot be considered on appeal.” (Joaquin G. Bernas,
The 1987 Constitution of the Republic of the Philippines:
A Commentary, p. 858 [1996], citing People v. Vera, 65
Phil. 56 [1937]). Petitioner questioned the
constitutionality of the ad interim appointments of
Benipayo, Borra and Tuason when she filed her petition
before this Court, which is the earliest opportunity for
pleading the constitutional issue before a competent
body. Furthermore, this Court may determine, in the
exercise of sound discretion, the time when a
constitutional issue may be passed upon (Ibid., citing
Sotto v. Commission on Elections, 76 Phil. 516 [1946]).
There is no doubt petitioner raised the constitutional
issue on time.
Moreover, the legality of petitioner’s
reassignment hinges on the constitutionality of
Benipayo’s ad interim appointment and assumption of
office. Unless the constitutionality of Benipayo’s ad
interim appointment and assumption of office is
resolved, the legality of petitioner’s reassignment from
the EID to the Law Department cannot be determined.
Clearly, the lis mota of this case is the very
constitutional issue raised by petitioner.
In any event, the issue raised by petitioner is of
paramount importance to the public. The legality of the
directives and decisions made by the COMELEC in the
conduct of the May 14, 2001 national elections may be
put in doubt if the constitutional issue raised by
petitioner is left unresolved. In keeping with this Court’s
duty to determine whether other agencies of
government have remained within the limits of the
Constitution and have not abused the discretion given
them, this Court may even brush aside technicalities of
procedure and resolve any constitutional issue raised
(Ople v. Torres, 293 SCRA 1412 [1998]; others omitted).
Here the petitioner has complied with all the requisite
technicalities. Moreover, public interest requires the
resolution of the constitutional issue raised by petitioner.
(Matibag v. Benipayo, 380 SCRA 49, April 2, 2002,
En Banc [Carpio])
107. What is the meaning of “justiciable controversy”
as requisite for the proper exercise of the power of
judicial review? Illustrative case.
Held: From a reading of the records it appears
to us that the petition was prematurely filed. Under the
undisputed facts there is as yet no justiciable
controversy for the court to resolve and the petition
should have been dismissed by the appellate court on
this ground.
We gather from the allegations of the petition
and that of the petitioner’s memorandum that the
alleged application for certificate of ancestral land claim
(CALC) filed by the heirs of Carantes under the assailed
DENR special orders has not been granted nor the CALC
applied for, issued. The DENR is still processing the
application of the heirs of Carantes for a certificate of
ancestral land claim, which the DENR may or may not
grant. It is evident that the adverse legal interests
involved in this case are the competing claims of the
petitioners and that of the heirs of Carantes to possess a
common portion of a piece of land. As the undisputed
facts stand there is no justiciable controversy between
the petitioners and the respondents as there is no actual
or imminent violation of the petitioners’ asserted right to
possess the land by reason of the implementation of the
questioned administrative issuance.
A justiciable controversy has been defined as, “a definite
and concrete dispute touching on the legal relations of
parties having adverse legal interests” (Sinco, Philippine
Political Law, 1962 ed., quoting from the U.S.
Declaratory Judgment Act of 1934, p. 360) which may
be resolved by a court of law through the application of
a law (Macasiano v. National Housing Authority, 224
SCRA 238 [1993]; Bernas, The Constitution of the
Republic of the Philippines: A Commentary, Vol. II, 1988
ed., pp. 274-275). Courts have no judicial power to
review cases involving political questions and as a rule,
will desist from taking cognizance of speculative or
hypothetical cases, advisory opinions and in cases that
has become moot (Cruz, Philippine Political Law, 1998
ed., p. 257-259). Subject to certain well-defined
exceptions (Solicitor-General v. MMA, December 11,
1991, 204 SCRA 837; Dumlao v. Comelec, 95 SCRA 392
[1980]) courts will not touch an issue involving the
validity of a law unless there has been a governmental
act accomplished or performed that has a direct adverse
effect on the legal right of the person contesting its
validity (Tan v. Macapagal, 43 SCRA 678 [1972]). In the
case of PACU v. Secretary of Education (97 Phil. 806
[1955]) the petition contesting the validity of a
regulation issued by the Secretary of Education requiring
private schools to secure a permit to operate was
dismissed on the ground that all the petitioners have
permits and are actually operating under the same. The
petitioners questioned the regulation because of the
possibility that the permit might be denied them in the
future. This Court held that there was no justiciable
controversy because the petitioners suffered no wrong
by the implementation of the questioned regulation and
therefore, they are not entitled to relief. A mere
apprehension that the Secretary of Education will
withdraw the permit does not amount to justiciable
controversy. The questioned regulation in the PACU
case may be questioned by a private school whose
permit to operate has been revoked or one whose
application therefore has been denied (Bernas, supra.).
This Court cannot rule on the basis of
petitioners’ speculation that the DENR will approve the
application of the heirs of Carantes. There must be an
actual governmental act which directly causes or will
imminently cause injury to the alleged legal right of the
petitioner to possess the land before the jurisdiction of
this Court may be invoked. There is no showing that the
petitioners were being evicted from the land by the heirs
of Carantes under orders from the DENR. The
petitioners’ allegation that certain documents from the
DENR were shown to them by the heirs of Carantes to
justify eviction is vague, and it would appear that the
petitioners did not verify if indeed the respondent DENR
or its officers authorized the attempted eviction. Suffice
it to say that by the petitioners’ own admission that the
respondents are still processing and have not approved
the application of the heirs of Carantes, the petitioners
alleged right to possess the land is not violated nor is in
imminent danger of being violated, as the DENR may or
may not approve Carantes’ application. Until such time,
the petitioners are simply speculating that they might be
evicted from the premises at some future time.
Borrowing from the pronouncements of this Court in the
PACU case, “They (the petitioners) have suffered no
wrong under the terms of the law – and, naturally need
no relief in the form they now seek to obtain.” (PACU,
supra, at p. 810) If indeed the heirs of Carantes are
trying to enter the land and disturbing the petitioners’
possession thereof even without prior approval by the
DENR of the claim of the heirs of Carantes, the case is
simply one of forcible entry. (Cutaran v. DENR, 350
SCRA 697, Jan. 31, 2001, 3rd Div. [Gonzaga-
Reyes])
108. Should the Court still resolve the case despite that
the issue has already become moot and academic?
Exception.
Held: Neither do we agree that merely because a
plebiscite had already been held in the case of the
proposed Barangay Napico, the petition of the
Municipality of Cainta has already been rendered moot
and academic. The issue raised by the Municipality of
Cainta in its petition before the COMELEC against the
holding of the plebiscite for the creation of Barangay
Napico are still pending determination before the Antipolo
Regional Trial Court.
In Tan v. Commission on Elections (G.R. No. 73155, 142
SCRA 727, 741-742 [1986]), we struck down the moot
and academic argument as follows –
“Considering that the legality of the plebiscite itself is
challenged for non-compliance with constitutional
requisites, the fact that such plebiscite had been held and
a new province proclaimed and its officials appointed, the
case before Us cannot truly be viewed as already moot
and academic. Continuation of the existence of this newly
proclaimed province which petitioners strongly profess to
have been illegally born, deserves to be inquired into by
this Tribunal so that, if indeed, illegality attaches to its
creation, the commission of that error should not provide
the very excuse for perpetration of such wrong. For this
Court to yield to the respondents’ urging that, as there
has been fait accompli, then this Court should passively
accept and accede to the prevailing situation is an
unacceptable suggestion. Dismissal of the instant
petition, as respondents so propose is a proposition
fraught with mischief. Respondents’ submission will
create a dangerous precedent. Should this Court decline
now to perform its duty of interpreting and indicating
what the law is and should be, this might tempt again
those who strut about in the corridors of power to
recklessly and with ulterior motives, create, merge, divide
and/or alter the boundaries of political subdivisions, either
brazenly or stealthily, confident that this Court will abstain
from entertaining future challenges to their acts if they
manage to bring about a fait accompli.”
(City of Pasig v. COMELEC, 314 SCRA 179, Sept.
10, 1999, En Banc [Ynares-Santiago])
109. On May 1, 2001, President Macapagal-Arroyo,
faced by an “angry and violent mob armed with
explosives, firearms, bladed weapons, clubs, stones and
other deadly weapons” assaulting and attempting to
break into Malacanang, issued Proclamation No. 38
declaring that there was a state of rebellion in the
National Capital Region. She likewise issued General
Order No. 1 directing the Armed Forces of the
Philippines and the Philippine National Police to suppress
the rebellion in the National Capital Region. Warrantless
arrests of several alleged leaders and promoters of the
“rebellion” were thereafter effected. Hence, several
petitions were filed before the SC assailing the
declaration of State of Rebellion by President Gloria
Macapagal-Arroyo and the warrantless arrests allegedly
effected by virtue thereof.
Held: All the foregoing petitions assail the declaration
of state of rebellion by President Gloria Macapagal-
Arroyo and the warrantless arrests allegedly effected by
virtue thereof, as having no basis both in fact and in
law. Significantly, on May 6, 2001, President
Macapagal-Arroyo ordered the lifting of the declaration
of a “state of rebellion” in Metro Manila. Accordingly,
the instant petitions have been rendered moot and
academic. As to petitioners’ claim that the proclamation
of a “state of rebellion” is being used by the authorities
to justify warrantless arrests, the Secretary of Justice
denies that it has issued a particular order to arrest
specific persons in connection with the “rebellion.” He
states that what is extant are general instructions to law
enforcement officers and military agencies to implement
Proclamation No. 38. x x x With this declaration,
petitioners’ apprehensions as to warrantless arrests
should be laid to rest. (Lacson v. Perez, 357 SCRA
756, May 10, 2001, En Banc [Melo])
110. When is an action considered “moot”? May the
court still resolve the case once it has become moot and
academic?
Held: 1. It is alleged by respondent that, with respect
to the PCCR [Preparatory Commission on Constitutional
Reform], this case has become moot and academic. We
agree.
An action is considered “moot” when it no longer
presents a justiciable controversy because the issues
involved have become academic or dead. Under E.O. No.
43, the PCCR was instructed to complete its task on or
before June 30, 1999. However, on February 19, 1999,
the President issued Executive Order No. 70 (E.O. No.
70), which extended the time frame for the completion of
the commission’s work x x x. The PCCR submitted its
recommendations to the President on December 20, 1999
and was dissolved by the President on the same day. It
had likewise spent the funds allocated to it. Thus, the
PCCR has ceased to exist, having lost its raison d’être.
Subsequent events have overtaken the petition and the
Court has nothing left to resolve.
The staleness of the issue before us is made more
manifest by the impossibility of granting the relief prayed
for by petitioner. Basically, petitioner asks this Court to
enjoin the PCCR from acting as such. Clearly, prohibition
is an inappropriate remedy since the body sought to be
enjoined no longer exists. It is well-established that
prohibition is a preventive remedy and does not lie to
restrain an act that is already fait accompli. At this point,
any ruling regarding the PCCR would simply be in the
nature of an advisory opinion, which is definitely beyond
the permissible scope of judicial power. (Gonzales v.
Narvasa, 337 SCRA 733, Aug. 14, 2000, En Banc
[Gonzaga-Reyes])
2. The petition which was filed by private
respondents before the trial court sought the issuance of
a writ of mandamus, to command petitioners to admit
them for enrolment. Taking into account the admission
of private respondents that they have finished their
Nursing course at the Lanting College of Nursing even
before the promulgation of the questioned decision, this
case has clearly been overtaken by events and should
therefore be dismissed. However, the case of Eastern
Broadcasting Corporation (DYRE) v. Dans, etc., et al.,
G.R. No. 59329, July 19, 1985, 137 SCRA 628 is the
authority for the view that "even if a case were moot and
academic, a statement of the governing principle is
appropriate in the resolution of dismissal for the guidance
not only of the parties but of others similarly situated .”
We shall adhere to this view and proceed to dwell on the
merits of this petition. (University of San Agustin,
Inc. v. Court of Appeals, 230 SCRA 761, 770, March
7, 1994 [Nocon])
111. In connection with the May 11, 1998 elections,
the COMELEC issued a resolution prohibiting the conduct
of exit polls on the ground, among others, that it might
cause disorder and confusion considering the randomness
of selecting interviewees, which further makes the exit
polls unreliable. The constitutionality of this resolution
was challenged by ABS-CBN Broadcasting Corporation as
violative of freedom of expression. The Solicitor General
contends that the petition has been rendered moot and
academic because the May 11, 1998 election has already
been held and done with and, therefore, there is no longer
any actual controversy to be resolved. Resolve.
Held: While the assailed Resolution referred specifically
to the May 11, 1998 election, its implications on the
people’s fundamental freedom of expression transcend
the past election. The holding of periodic elections is a
basic feature of our democratic government. By its very
nature, exit polling is tied up with elections. To set aside
the resolution of the issue now will only postpone a task
that could well crop up again in future elections.
In any event, in Salonga v. Cruz Pano (134 SCRA 438,
463, Feb. 18, 1985), the Court had occasion to reiterate
that it “also has the duty to formulate guiding and
controlling constitutional principles, precepts, doctrines,
or rules. It has the symbolic function of educating bench
and bar on the extent of protection given by constitutional
guarantees.” Since the fundamental freedoms of speech
and of the press are being invoked here, we have resolved
to settle, for the guidance of posterity, whether they
likewise protect the holding of exit polls and the
dissemination of data derived therefrom. (ABS-CBN
Broadcasting Corporation v. COMELEC, G.R. No.
133486, Jan. 28, 2000, En Banc [Panganiban])
112. Discuss the nature of a taxpayer’s suit. When
may it be allowed?
Held: 1. Petitioner and respondents agree that to
constitute a taxpayer's suit, two requisites must be met,
namely, that public funds are disbursed by a political
subdivision or instrumentality and in doing so, a law is
violated or some irregularity is committed, and that the
petitioner is directly affected by the alleged ultra vires act .
The same pronouncement was made in Kilosbayan, Inc.
v. Guingona, Jr., (232 SCRA 110 [1994], where the Court
also reiterated its liberal stance in entertaining so-called
taxpayer's suits, especially when important issues are
involved. A closer examination of the facts of this case
would readily demonstrate that petitioner's standing
should not even be made an issue here, "since standing
is a concept in constitutional law and here no
constitutional question is actually involved."
In the case at bar, disbursement of public funds
was only made in 1975 when the Province bought the
lands from Ortigas at P110.00 per square meter in line
with the objectives of P.D. 674. Petitioner never referred
to such purchase as an illegal disbursement of public
funds but focused on the alleged fraudulent reconveyance
of said property to Ortigas because the price paid was
lower than the prevailing market value of neighboring
lots. The first requirement, therefore, which would make
this petition a taxpayer's suit is absent. The only
remaining justification for petitioner to be allowed to
pursue this action is whether it is, or would be, directly
affected by the act complained of. As we stated in
Kilosbayan, Inc. v. Morato (supra.),
"Standing is a special concern in constitutional law
because in some cases suits are brought not by parties
who have been personally injured by the operation of a
law or by official action taken, but by concerned citizens,
taxpayers or voters who actually sue in the public interest.
Hence the question in standing is whether such parties
have 'alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult
constitutional questions.' (Citing Baker v. Carr, 369 U.S.
186, 7l. Ed. 2d 633 [1962])"
Undeniably, as a taxpayer, petitioner would somehow be
adversely affected by an illegal use of public money.
When, however, no such unlawful spending has been
shown, as in the case at bar, petitioner, even as a
taxpayer, cannot question the transaction validly
executed by and between the Province and Ortigas for the
simple reason that it is not privy to said contract. In other
words, petitioner has absolutely no cause of action, and
consequently no locus standi, in the instant case. (The
Anti-Graft League of the Philippines, Inc. v. San
Juan, 260 SCRA 250, 253-255, Aug. 1, 1996, En
Banc [Romero])
2. A taxpayer is deemed to have the standing to raise a
constitutional issue when it is established that public
funds have been disbursed in alleged contravention of the
law or the Constitution. Thus, a taxpayer’s action is
properly brought only when there is an exercise by
Congress of its taxing or spending power (Flast v. Cohen,
392 US 83, 20 L Ed 2d 947, 88 S Ct 1942). This was our
ruling in a recent case wherein petitioners
Telecommunications and Broadcast Attorneys of the
Philippines (TELEBAP) and GMA Network, Inc. questioned
the validity of Section 92 of B.P. Blg. 881 (otherwise
known as the “Omnibus Election Code”) requiring radio
and television stations to give free air time to the
Commission on Elections during the campaign period
(Telecommunications and Broadcast Attorneys of the
Philippines, Inc. v. Commission on Elections, 289 SCRA
337 [1998]). The Court held that petitioner TELEBAP did
not have any interest as a taxpayer since the assailed law
did not involve the taxing or spending power of Congress.
Many other rulings have premised the grant or denial of
standing to taxpayers upon whether or not the case
involved a disbursement of public funds by the legislature.
In Sanidad v. Commission on Elections (73 SCRA 333
[1976]), the petitioners therein were allowed to bring a
taxpayer’s suit to question several presidential decrees
promulgated by then President Marcos in his legislative
capacity calling for a national referendum, with the Court
explaining that –
X x x [i]t is now an ancient rule that the valid source of a
statute – Presidential Decrees are of such nature – may
be contested by one who will sustain a direct injury as a
result of its enforcement. At the instance of taxpayers,
laws providing for the disbursement of public funds may
be enjoined, upon the theory that the expenditure of
public funds by an officer of the State for the purpose of
executing an unconstitutional act constitutes a
misapplication of such funds. The breadth of Presidential
Decree No. 991 carries an appropriation of Five Million
Pesos for the effective implementation of its purposes.
Presidential Decree No. 1031 appropriates the sum of
Eight Million Pesos to carry out its provisions. The interest
of the aforenamed petitioners as taxpayers in the lawful
expenditure of these amounts of public money sufficiently
clothes them with that personality to litigate the validity
of the Decrees appropriating said funds x x x.
In still another case, the Court held that petitioners – the
Philippine Constitution Association, Inc., a non-profit civic
organization – had standing as taxpayers to question the
constitutionality of Republic Act No. 3836 insofar as it
provides for retirement gratuity and commutation of
vacation and sick leaves to Senators and Representatives
and to the elective officials of both houses of Congress
(Philippine Constitution Association, Inc. v. Gimenez, 15
SCRA 479 [1965]). And in Pascual v. Secretary of Public
Works (110 Phil. 331 [1960]), the Court allowed petitioner
to maintain a taxpayer’s suit assailing the constitutional
soundness of Republic Act No. 920 appropriating P85,000
for the construction, repair and improvement of feeder
roads within private property. All these cases involved
the disbursement of public funds by means of a law.
Meanwhile, in Bugnay Construction and
Development Corporation v. Laron (176 SCRA 251
[1989]), the Court declared that the trial court was wrong
in allowing respondent Ravanzo to bring an action for
injunction in his capacity as a taxpayer in order to
question the legality of the contract of lease covering the
public market entered into between the City of Dagupan
and petitioner. The Court declared that Ravanzo did not
possess the requisite standing to bring such taxpayer’s
suit since “[o]n its face, and there is no evidence to the
contrary, the lease contract entered into between
petitioner and the City shows that no public funds have
been or will be used in the construction of the market
building.”
Coming now to the instant case, it is readily apparent that
there is no exercise by Congress of its taxing or spending
power. The PCCR was created by the President by virtue
of E.O. No. 43, as amended by E.O. No. 70. Under
Section 7 of E.O. No. 43, the amount of P3 million is
"appropriated" for its operational expenses "to be sourced
from the funds of the Office of the President.” x x x. The
appropriations for the PCCR were authorized by the
President, not by Congress. In fact, there was no
appropriation at all. “In a strict sense, appropriation has
been defied ‘as nothing more than the legislative
authorization prescribed by the Constitution that money
may be paid out of the Treasury,’ while appropriation
made by law refers to ‘the act of the legislature setting
apart or assigning to a particular use a certain sum to be
used in the payment of debt or dues from the State to its
creditors.’” The funds used for the PCCR were taken from
funds intended for the Office of the President, in the
exercise of the Chief Executive’s power to transfer funds
pursuant to Section 25 (5) of Article VI of the Constitution.
In the final analysis, it must be stressed that the
Court retains the power to decide whether or not it will
entertain a taxpayer’s suit. In the case at bar, there being
no exercise by Congress of its taxing or spending power,
petitioner cannot be allowed to question the creation of
the PCCR in his capacity as a taxpayer, but rather, he
must establish that he has a “personal and substantial
interest in the case and that he has sustained or will
sustain direct injury as a result of its enforcement.” In
other words, petitioner must show that he is a real party
in interest – that he will stand to be benefited or injured
by the judgment or that he will be entitled to the avails of
the suit. Nowhere in his pleadings does petitioner
presume to make such a representation. (Gonzales v.
Narvasa, 337 SCRA 733, Aug. 14, 2000, En Banc
[Gonzaga-Reyes])
113. What is a justiciable controversy? What are
political questions?
Held: As a general proposition, a controversy is
justiciable if it refers to a matter which is appropriate for
court review. It pertains to issues which are inherently
susceptible of being decided on grounds recognized by
law. Nevertheless, the Court does not automatically
assume jurisdiction over actual constitutional cases
brought before it even in instances that are ripe for
resolution. One class of cases wherein the Court hesitates
to rule on are "political questions." The reason is that
political questions are concerned with issues dependent
upon the wisdom, not the legality, of a particular act or
measure being assailed. Moreover, the political question
being a function of the separation of powers, the courts
will not normally interfere with the workings of another
co-equal branch unless the case shows a clear need for
the courts to step in to uphold the law and the
Constitution.
As Tanada v. Angara (103 Phil. 1051 [1957]) puts it,
political questions refer "to those questions which, under
the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or
executive branch of government." Thus, if an issue is
clearly identified by the text of the Constitution as matters
for discretionary action by a particular branch of
government or to the people themselves then it is held to
be a political question. In the classic formulation of
Justice Brennan in Baker v. Carr (369 U.S. 186, 82 S Ct.
691, 7 L. Ed. 663, 678 [1962]), "[p]rominent on the
surface of any case held to involve a political question is
found a textually demonstrable constitutional
commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility
of deciding without an initial policy determination of a kind
clearly for nonjudicial discretion; or the impossibility of a
court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning
adherence to a political decision already made; or the
potentiality of embarrassment from multifarious
pronouncements by various departments on the one
question."
The 1987 Constitution expands the concept of judicial
review by providing that "(T)he Judicial power shall be
vested in one Supreme Court and in such lower courts as
may be established by law. Judicial power includes the
duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and
enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of the Government." (Article VIII, Sec. 1
of the 1987 Constitution) Under this definition, the Court
cannot agree x x x that the issue involved is a political
question beyond the jurisdiction of this Court to review.
When the grant of power is qualified, conditional or
subject to limitations, the issue of whether the prescribed
qualifications or conditions have been met or the
limitations respected, is justiciable - the problem being
one of legality or validity, not its wisdom. Moreover, the
jurisdiction to delimit constitutional boundaries has been
given to this Court. When political questions are involved,
the Constitution limits the determination as to whether or
not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of the official
whose action is being questioned.
By grave abuse of discretion is meant simply capricious or
whimsical exercise of judgment that is patent and gross
as to amount to an evasion of positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all
in contemplation of law, as where the power is exercised
in an arbitrary and despotic manner by reason of passion
or hostility. Under this definition, a court is without power
to directly decide matters over which full discretionary
authority has been delegated. But while this Court has
no power to substitute its judgment for that of Congress
or of the President, it may look into the question of
whether such exercise has been made in grave abuse of
discretion. A showing that plenary power is granted
either department of government may not be an obstacle
to judicial inquiry, for the improvident exercise or abuse
thereof may give rise to justiciable controversy.
(Integrated Bar of the Philippines v. Hon. Ronaldo
B. Zamora, G.R. No. 141284, Aug. 15, 2000, En
Banc [Kapunan])
114. Is the legitimacy of the assumption to the
Presidency of President Gloria Macapagal Arroyo a
political question and, therefore, not subject to judicial
review? Distinguish EDSA People Power I from EDSA
People Power II.
Held: Respondents rely on the case of Lawyers League
for a Better Philippines and/or Oliver A. Lozano v.
President Corazon C. Aquino, et al. and related cases to
support their thesis that since the cases at bar involve the
legitimacy of the government of respondent Arroyo, ergo,
they present a political question. A more cerebral reading
of the cited cases will show that they are inapplicable. In
the cited cases, we held that the government of former
President Aquino was the result of a successful revolution
by the sovereign people, albeit a peaceful one. No less
than the Freedom Constitution declared that the Aquino
government was installed through a direct exercise of the
power of the Filipino people “in defiance of the provisions
of the 1973 Constitution, as amended.” It is familiar
learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial
scrutiny for that government automatically orbits out of
the constitutional loop. In checkered contrast, the
government of respondent Arroyo is not revolutionary in
character. The oath that she took at the EDSA Shrine is
the oath under the 1987 Constitution. In her oath, she
categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is
discharging the powers of the presidency under the
authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power
I and EDSA People Power II is clear. EDSA I involves the
exercise of the people power of revolution which
overthrows the whole government. EDSA II is an exercise
of people power of freedom of speech and freedom of
assembly to petition the government for redress of
grievances which only affected the office of the President.
EDSA I is extra constitutional and the legitimacy of the
new government that resulted from it cannot be the
subject of judicial review, but EDSA II is intra
constitutional and the resignation of the sitting President
that it caused and the succession of the Vice President as
President are subject to judicial review. EDSA I presented
a political question; EDSA II involves legal questions. X x
x
Needless to state, the cases at bar pose legal and not
political questions. The principal issues for resolution
require the proper interpretation of certain provisions in
the 1987 Constitution, notably Section 1 of Article II, and
Section 8 of Article VII, and the allocation of
governmental powers under Section 11 of Article VII. The
issues likewise call for a ruling on the scope of presidential
immunity from suit. They also involve the correct
calibration of the right of petitioner against prejudicial
publicity. As early as the 1803 case of Marbury v. Madison
(1 Cranch [5 US] 137, L Ed 60 [1803]), the doctrine has
been laid down that “it is emphatically the province and
duty of the judicial department to say what the law is x x
x.” Thus, respondent’s invocation of the doctrine of
political question is but a foray in the dark. (Joseph E.
Estrada v. Aniano Desierto, G.R. Nos. 146710-15,
March 2, 2001, En Banc [Puno])
115. Is the President’s power to call out the armed
forces as their Commander-in-Chief in order to prevent or
suppress lawless violence, invasion or rebellion subject to
judicial review, or is it a political question? Clarify.
Held: When the President calls the armed forces to
prevent or suppress lawless violence, invasion or
rebellion, he necessarily exercises a discretionary power
solely vested in his wisdom. This is clear from the intent
of the framers and from the text of the Constitution itself.
The Court, thus, cannot be called upon to overrule the
President's wisdom or substitute its own. However, this
does not prevent an examination of whether such power
was exercised within permissible constitutional limits or
whether it was exercised in a manner constituting grave
abuse of discretion. In view of the constitutional intent
to give the President full discretionary power to determine
the necessity of calling out the armed forces, it is
incumbent upon the petitioner to show that the
President's decision is totally bereft of factual basis. The
present petition fails to discharge such heavy burden as
there is no evidence to support the assertion that there
exists no justification for calling out the armed forces.
There is, likewise, no evidence to support the proposition
that grave abuse was committed because the power to
call was exercised in such a manner as to violate the
constitutional provision on civilian supremacy over the
military. In the performance of this Court's duty of
"purposeful hesitation" before declaring an act of another
branch as unconstitutional, only where such grave abuse
of discretion is clearly shown shall the Court interfere with
the President's judgment. To doubt is to sustain.
(Integrated Bar of the Philippines v. Hon. Ronaldo
B. Zamora, G.R. No. 141284, Aug. 15, 2000, En
Banc [Kapunan])
116. Do lower courts have jurisdiction to consider the
constitutionality of a law? If so, how should they act in
the exercise of this jurisdiction?
Held: We stress at the outset that the lower court had
jurisdiction to consider the constitutionality of Section
187, this authority being embraced in the general
definition of the judicial power to determine what are the
valid and binding laws by the criterion of their conformity
to the fundamental law. Specifically, BP 129 vests in the
regional trial courts jurisdiction over all civil cases in which
the subject of the litigation is incapable of pecuniary
estimation (Sec. 19[1]), even as the accused in a criminal
action has the right to question in his defense the
constitutionality of a law he is charged with violating and
of the proceedings taken against him, particularly as they
contravene the Bill of Rights. Moreover, Article VIII,
Section 5(2), of the Constitution vests in the Supreme
Court appellate jurisdiction over final judgments and
orders of lower courts in all cases in which the
constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation
is in question.
In the exercise of this jurisdiction, lower courts are
advised to act with the utmost circumspection, bearing in
mind the consequences of a declaration of
unconstitutionality upon the stability of laws, no less than
on the doctrine of separation of powers. As the
questioned act is usually the handiwork of the legislative
or the executive departments, or both, it will be prudent
for such courts, if only out of a becoming modesty, to
defer to the higher judgment of this Court in the
consideration of its validity, which is better determined
after a thorough deliberation by a collegiate body and
with the concurrence of the majority of those who
participated in its discussion (Art. VIII, Sec. 4[2],
Constitution) (Drilon v. Lim, 235 SCRA 135, 139-
140, Aug. 4, 1994, En Banc [Cruz])
117. What cases are to be heard by the Supreme Court
en banc?
Held: Under Supreme Court Circular No. 2-89, dated
February 7, 1989, as amended by the Resolution of
November 18, 1993:

X x x, the following are considered en banc cases:
1) Cases in which the constitutionality or validity
of any treaty, international or executive agreement, law,
executive order, or presidential decree, proclamation,
order, instruction, ordinance, or regulation is in question;
2) Criminal cases in which the appealed decision
imposes the death penalty;
3) Cases raising novel questions of law;
4) Cases affecting ambassadors, other public
ministers and consuls;
5) Cases involving decisions, resolutions or
orders of the Civil Service Commission, Commission on
Elections, and Commission on Audit;
6) Cases where the penalty to be imposed is the
dismissal of a judge, officer or employee of the judiciary,
disbarment of a lawyer, or either the suspension of any
of them for a period of more than one (1) year or a fine
exceeding P10,000.00 or both;
7) Cases where a doctrine or principle laid down
by the court en banc or in division may be modified or
reversed;
8) Cases assigned to a division which in the
opinion of at least three (3) members thereof merit the
attention of the court en banc and are acceptable to a
majority of the actual membership of the court en banc;
and
9) All other cases as the court en banc by a
majority of its actual membership may deem of sufficient
importance to merit its attention.
(Firestone Ceramics, Inc. v. Court of Appeals, 334
SCRA 465, 471-472, June 28, 2000, En Banc
[Purisima])
118. What is fiscal autonomy? The fiscal autonomy
clause?
Held: As envisioned in the Constitution, the fiscal
autonomy enjoyed by the Judiciary, the Civil Service
Commission, the Commission on Audit, the Commission
on Elections, and the Office of the Ombudsman
contemplates a guarantee of full flexibility to allocate and
utilize their resources with the wisdom and dispatch that
their needs require. It recognizes the power and
authority to levy, assess and collect fees, fix rates of
compensation not exceeding the highest rates authorized
by law for compensation and pay plans of the government
and allocate and disburse such sums as may be provided
by law or prescribed by them in the course of the
discharge of their functions.
Fiscal autonomy means freedom from outside control.
The Judiciary, the Constitutional Commissions, and the
Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner
the independent constitutional offices allocate and utilize
the funds appropriated for their operations is anathema
to fiscal autonomy and violative not only of the express
mandate of the Constitution but especially as regards the
Supreme Court, of the independence and separation of
powers upon which the entire fabric of our constitutional
system is based. (Bengzon v. Drilon, 208 SCRA 133,
April 15, 1992, En Banc [Gutierrez])
119. May the Ombudsman validly entertain criminal
charges against a judge of the regional trial court in
connection with his handling of cases before the court.
Held: Petitioner criticizes the jurisprudence
(Maceda v. Vasquez, 221 SCRA 464 [1993] and Dolalas v.
Office of the Ombudsman-Mindanao, 265 SCRA 818
[1996]) cited by the Office of the Ombudsman as
erroneous and not applicable to his complaint. He insists
that since his complaint involved a criminal charge against
a judge, it was within the authority of the Ombudsman
not the Supreme Court to resolve whether a crime was
committed and the judge prosecuted therefor.
The petition can not succeed.
Xxx
We agree with the Solicitor General that the Ombudsman
committed no grave abuse of discretion warranting the
writs prayed for. The issues have been settled in the case
of In Re: Joaquin Borromeo (241 SCRA 408, 460 [1995]).
There, we laid down the rule that before a civil or criminal
action against a judge for a violation of Arts. 204 and 205
(knowingly rendering an unjust judgment or order) can
be entertained, there must first be “a final and
authoritative judicial declaration” that the decision or
order in question is indeed “unjust.” The pronouncement
may result from either:
(a) an action of certiorari or prohibition in a
higher court impugning the validity of the judgment; or
(b) an administrative proceeding in the Supreme
Court against the judge precisely for promulgating an
unjust judgment or order.
Likewise, the determination of whether a judge has
maliciously delayed the disposition of the case is also an
exclusive judicial function (In Re: Borromeo, supra, at
461).
“To repeat, no other entity or official of the government,
not the prosecution or investigation service of any other
branch, not any functionary thereof, has competence to
review a judicial order or decision – whether final and
executory or not – and pronounce it erroneous so as to
lay the basis for a criminal or administrative complaint for
rendering an unjust judgment or order. That prerogative
belongs to the courts alone.
This having been said, we find that the
Ombudsman acted in accordance with law and
jurisprudence when he referred the cases against Judge
Pelayo to the Supreme Court for appropriate action. (De
Vera v. Pelayo, 335 SCRA 281, July 6, 2000, 1st Div.
[Pardo])
120. Discuss the validity of “Memorandum Decisions.”
Held: 1. The constitutional mandate that no decision
shall be rendered by any court without expressing therein
clearly and distinctly the facts and the law on which it is
based does not preclude the validity of "memorandum
decisions" which adopt by reference the findings of fact
and conclusions of law contained in the decisions of
inferior tribunals. X x x
Hence, even in this jurisdiction, incorporation by
reference is allowed if only to avoid the cumbersome
reproduction of the decision of the lower courts, or
portions thereof, in the decisions of the higher court
(Francisco v. Permskul, 173SCRA 324, 333). This is
particularly true when the decision sought to be
incorporated is a lengthy and thorough discussion of the
facts and conclusions arrived at x x x. (Oil and Natural
Gas Commission v. Court of Appeals, 293 SCRA 26,
July 23, 1998 [Martinez])
2. We have sustained decisions of lower courts
as having substantially or sufficiently complied with the
constitutional injunction notwithstanding the laconic and
terse manner in which they were written and even if
“there [was left] much to be desired in terms of [their]
clarity, coherence and comprehensibility” provided that
they eventually set out the facts and the law on which
they were based, as when they stated the legal
qualifications of the offense constituted by the facts
proved, the modifying circumstances, the participation of
the accused, the penalty imposed and the civil liability; or
discussed the facts comprising the elements of the
offense that was charged in the information, and
accordingly rendered a verdict and imposed the
corresponding penalty; or quoted the facts narrated in the
prosecution’s memorandum but made their own findings
and assessment of evidence, before finally agreeing with
the prosecution’s evaluation of the case.
We have also sanctioned the use of memorandum
decisions (In Francisco v. Permskul, 173 SCRA 324, 333
[1989], the Court described “[t]he distinctive features of
a memorandum decision are, first, it is rendered by an
appellate court, second, it incorporates by reference the
findings of fact or the conclusions of law contained in the
decision, order, or ruling under review. Most likely, the
purpose is to affirm the decision, although it is not
impossible that the approval of the findings of facts by the
lower court may lead to a different conclusion of law by
the higher court. At any rate, the reason for allowing the
incorporation by reference is evidently to avoid the
cumbersome reproduction of the decision of the lower
court, or portions thereof, in the decision of the higher
court. The idea is to avoid having to repeat in the body
of the latter decision the findings or conclusions of the
lower court since they are being approved or adopted
anyway.), a specie of succinctly written decisions by
appellate courts in accordance with the provisions of
Section 40, B.P. Blg. 129 on the grounds of expediency,
practicality, convenience and docket status of our courts.
We have also declared that memorandum decisions
comply with the constitutional mandate.
In Francisco v. Permskul, however, we laid the
conditions for the validity of memorandum decisions,
thus:
The memorandum decision, to be valid, cannot
incorporate the findings of fact and the conclusions of law
of the lower court only by remote reference, which is to
say that the challenged decision is not easily and
immediately available to the person reading the
memorandum decision. For the incorporation by
reference to be allowed, it must provide for direct access
to the facts and the law being adopted, which must be
contained in a statement attached to the said decision. In
other words, the memorandum decision authorized under
Section 40 of B.P. Blg. 129 should actually embody the
findings of fact and conclusions of law of the lower court
in an annex attached to and made an indispensable part
of the decision.
It is expected that this requirement will allay the suspicion
that no study was made of the decision of the lower court
and that its decision was merely affirmed without a prior
examination of the facts and the law on which it is based.
The proximity at least of the annexed statement should
suggest that such examination has been undertaken. It
is, of course, also understood that the decision being
adopted should, to begin with, comply with Article VIII,
Section 14 as no amount of incorporation or adoption will
rectify its violation.
The Court finds necessary to emphasize that the
memorandum decision should be sparingly used lest it
become an additive excuse for judicial sloth. It is an
additional condition for the validity of this kind of decision
may be resorted to only in cases where the facts are in
the main accepted by both parties and easily
determinable by the judge and there are no doctrinal
complications involved that will require an extended
discussion of the laws involved. The memorandum
decision may be employed in simple litigations only, such
as ordinary collection cases, where the appeal is obviously
groundless and deserves no more than the time needed
to dismiss it.
Xxx
Henceforth, all memorandum decisions shall comply with
the requirements herein set forth as to the form
prescribed and the occasions when they may be
rendered. Any deviation will summon the strict
enforcement of Article VIII, Section 14 of the Constitution
and strike down the flawed judgment as a lawless
disobedience.
Tested against these standards, we find that the
RTC decision at bar miserably failed to meet them and,
therefore, fell short of the constitutional injunction. The
RTC decision is brief indeed, but it is starkly hallow,
otiosely written, vacuous in its content and trite in its
form. It achieved nothing and attempted at nothing, not
even at a simple summation of facts which could easily be
done. Its inadequacy speaks for itself.
We cannot even consider or affirm said RTC
decision as a memorandum decision because it failed to
comply with the measures of validity laid down in
Francisco v. Permskul. It merely affirmed in toto the
MeTC decision without saying more. A decision or
resolution, especially one resolving an appeal, should
directly meet the issues for resolution; otherwise, the
appeal would be pointless (See ABD Overseas Manpower
Corporation v. NLRC, 286 SCRA 454, 464 [1998]).
We therefore reiterate our admonition in Nicos
Industrial Corporation v. Court of Appeals (206 SCRA 127,
134 [1992]), in that while we conceded that brevity in the
writing of decisions is an admirable trait, it should not and
cannot be substituted for substance; and again in
Francisco v. Permskul, where we cautioned that
expediency alone, no matter how compelling, cannot
excuse non-compliance with the constitutional
requirements.
This is not to discourage the lower courts to write
abbreviated and concise decisions, but never at the
expense of scholarly analysis, and more significantly, of
justice and fair play, lest the fears expressed by Justice
Feria as the ponente in Romero v. Court of Appeals come
true, i.e., if an appellate court failed to provide the appeal
the attention it rightfully deserved, said court deprived the
appellant of due process since he was accorded a fair
opportunity to be heard by a fair and responsible
magistrate. This situation becomes more ominous in
criminal cases, as in this case, where not only property
rights are at stake but also the liberty if not the life of a
human being.
Faithful adherence to the requirements of Section 14,
Article VIII of the Constitution is indisputably a paramount
component of due process and fair play. It is likewise
demanded by the due process clause of the Constitution.
The parties to a litigation should be informed of how it
was decided, with an explanation of the factual and legal
reasons that led to the conclusions of the court. The court
cannot simply say that judgment is rendered in favor of X
and against Y and just leave it at that without any
justification whatsoever for its action. The losing party is
entitled to know why he lost, so he may appeal to the
higher court, if permitted, should he believe that the
decision should be reversed. A decision that does not
clearly and distinctly state the facts and the law on which
it is based leaves the parties in the dark as to how it was
reached and is precisely prejudicial to the losing party,
who is unable to pinpoint the possible errors of the court
for review by a higher tribunal. More than that, the
requirement is an assurance to the parties that, in
reaching judgment, the judge did so through the
processes of legal reasoning. It is, thus, a safeguard
against the impetuosity of the judge, preventing him from
deciding ipse dixit. Vouchsafed neither the sword nor the
purse by the Constitution but nonetheless vested with the
sovereign prerogative of passing judgment on the life,
liberty or property of his fellowmen, the judge must
ultimately depend on the power of reason for sustained
public confidence in the justness of his decision.
Thus the Court has struck down as void, decisions of
lower courts and even of the Court of Appeals whose
careless disregard of the constitutional behest exposed
their sometimes cavalier attitude not only to their
magisterial responsibilities but likewise to their avowed
fealty to the Constitution.
Thus, we nullified or deemed to have failed to comply with
Section 14, Article VIII of the Constitution, a decision,
resolution or order which: contained no analysis of the
evidence of the parties nor reference to any legal basis in
reaching its conclusions; contained nothing more than a
summary of the testimonies of the witnesses of both
parties; convicted the accused of libel but failed to cite
any legal authority or principle to support conclusions that
the letter in question was libelous; consisted merely of
one (1) paragraph with mostly sweeping generalizations
and failed to support its conclusion of parricide; consisted
of five (5) pages, three (3) pages of which were
quotations from the labor arbiter’s decision including the
dispositive portion and barely a page (two [2] short
paragraphs of two [2] sentences each) of its own
discussion or reasonings; was merely based on the
findings of another court sans transcript of stenographic
notes, or failed to explain the factual and legal bases for
the award of moral damages.
In the same vein do we strike down as a nullity the RTC
decision in question. (Yao v. Court of Appeals, 344
SCRA 202, Oct. 24, 2000, 1st Div. [Davide])
121. Does the period for decision making under
Section 15, Article VIII, 1987 Constitution, apply to the
Sandiganbayan? Explain.
Held: The above provision does not apply to the
Sandiganbayan. The provision refers to regular courts of
lower collegiate level that in the present hierarchy applies
only to the Court of Appeals.
 The Sandiganbayan is a special court of the same
level as the Court of Appeals and possessing all the
inherent powers of a court of justice, with functions of a
trial court.
Thus, the Sandiganbayan is not a regular court
but a special one. The Sandiganbayan was originally
empowered to promulgate its own rules of procedure .
However, on March 30, 1995, Congress repealed the
Sandiganbayan’s power to promulgate its own rules of
procedure and instead prescribed that the Rules of Court
promulgated by the Supreme Court shall apply to all cases
and proceedings filed with the Sandiganbayan.
“Special courts are judicial tribunals exercising limited
jurisdiction over particular or specialized categories of
actions. They are the Court of Tax Appeals, the
Sandiganbayan, and the Shari’a Courts.” (Supra, Note 23,
at p. 8)
Under Article VIII, Section 5[5] of the
Constitution “Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless
disapproved by the Supreme Court.”
In his report, the Court Administrator would
distinguish between cases which the Sandiganbayan has
cognizance of in its original jurisdiction, and cases which
fall within the appellate jurisdiction of the Sandiganbayan.
The Court Administrator posits that since in the first class
of cases, the Sandiganbayan acts more as a trial court,
then for that classification of cases, the three [3] month
reglementary period applies. For the second class of
cases, the Sandiganbayan has the twelve-month
reglementary period for collegiate courts. We do not
agree.
The law creating the Sandiganbayan, P.D. No.
1606 is clear on this issue. It provides:
“Sec. 6. Maximum period for termination of cases – As far
as practicable, the trial of cases before the
Sandiganbayan once commenced shall be continuous
until terminated and the judgment shall be rendered
within three [3] months from the date the case was
submitted for decision.”
On September 18, 1984, the Sandiganbayan
promulgated its own rules, thus:
“Sec. 3. Maximum Period to Decide Cases – The judgment
or final order of a division of the Sandiganbayan shall be
rendered within three [3] months from the date the case
was submitted for decision.”
Given the clarity of the rule that does not distinguish, we
hold that the three [3] month period, not the twelve [12]
month period, to decide cases applies to the
Sandiganbayan. Furthermore, the Sandiganbayan
presently sitting in five [5] divisions, functions as a trial
court. The term “trial” is used in its broad sense,
meaning, it allows introduction of evidence by the parties
in the cases before it. The Sandiganbayan, in original
cases within its jurisdiction, conducts trials, has the
discretion to weigh the evidence of the parties, admit the
evidence it regards as credible and reject that which they
consider perjurious or fabricated. (Re: Problem of
Delays in Cases Before the Sandiganbayan, A.M.
No. 00-8-05-SC, Nov. 28, 2001, En Banc [Pardo])
CONSTITUTIONAL LAW
122. What is the effect of declaration of
unconstitutionality of a law? Illustrative case.
Held: Respondents are seeking a
reconsideration of the Court’s 25 January 2000 decision,
wherein we declared section 8 of Republic Act No. 8551
(RA 8551) to be violative of petitioners’ constitutionally
mandated right to security of tenure. As a consequence
of our ruling, we held that petitioners’ removal as
commissioners of the National Police Commission
(NAPOLCOM) and the appointment of new Commissioners
in their stead were nullities and ordered the reinstatement
of petitioners and the payment of full backwages to be
computed from the date they were removed from office.
Xxx
An unconstitutional act is not a law; it confers no rights,
imposes no duties, and affords no protection (Fernandez
v. Cuerva, 21 SCRA 1095 [1967]). Therefore, the
unavoidable consequence of the Court’s declaration that
section 8 of RA 8551 violates the fundamental law is
that all acts done pursuant to such provision shall be null
and void, including the removal of petitioners and
Adiong from their positions in the NAPOLCOM and the
appointment of new commissioners in their stead.
When a regular government employee is illegally
dismissed, his position does not become vacant and the
new appointment made in order to replace him is null
and void ab initio (Aquino v. Civil Service Commission,
208 SCRA 240 [1992]). Rudimentary is the precept that
there can be no valid appointment to a non-vacant
position (Garces v. Court of Appeals, 259 SCRA 99
[1996]). Accordingly, Adiong’s appointment on 11
March 1998 for a term of two years, pursuant to section
8 of RA 8551, is null and void. However, he should now
be permitted to enjoy the remainder of his term under
RA 6975. Therefore, based on our foregoing
disquisition, there should no longer be any doubt as to
the proper execution of our 25 January 2000 decision –
all the Commissioners appointed under RA 8551 should
be removed from office, in order to give way to the
reinstatement of petitioners and respondent Adiong.
(Canonizado v. Aguirre, 351 SCRA 659, Feb. 15,
2001, En Banc [Gonzaga-Reyes])
123. Discuss the “Void for Vagueness” Doctrine, and
why is it repugnant to the Constitution. Distinguish a
“perfectly vague act” from “legislation couched in
imprecise language.”
Held: 1. Due process requires that the terms of a
penal statute must be sufficiently explicit to inform those
who are subject to it what conduct on their part will
render them liable to its penalties (Connally v. General
Construction Co., 269 US 385, 70 L Ed 322 46 S Ct 126
[1926]). A criminal statute that “fails to give a person of
ordinary intelligence fair notice that his contemplated
conduct is forbidden by the statute,” or is so indefinite
that “it encourages arbitrary and erratic arrests and
convictions,” is void for vagueness (Colautti v. Franklin,
439 US 379, 58 L Ed 2d 596, 99 S Ct 675 [1979]). The
constitutional vice in a vague or indefinite statute is the
injustice to the accused in placing him on trial for an
offense, the nature of which he is given no fair warning
(American Communications Asso. v. Douds, 339 US 382,
94 L Ed 925, 70 S Ct 674 [1950])
We reiterated these principles in People v.
Nazario (165 SCRA 186 [1988]):
As a rule, a statute or act may be said to be vague when
it lacks comprehensible standards that men “of common
intelligence must necessarily guess at its meaning and
differ as to its application.” It is repugnant to the
Constitution in two respects: (1) it violates due process
for failure to accord persons, especially the parties
targeted by it, fair notice of the conduct to avoid; and
(2) it leaves law enforcers unbridled discretion in
carrying out its provisions and become an arbitrary
flexing of the Government muscle.
We added, however, that:
X x x the act must be utterly vague on its face, that is to
say, it cannot be clarified by either a saving clause or by
construction. Thus, in Coates v. City of Cincinnati, the
U.S. Supreme Court struck down an ordinance that had
made it illegal for “three or more persons to assemble
on any sidewalk and there conduct themselves in a
manner annoying to persons passing by.” Clearly, the
ordinance imposed no standard at all “because one may
never know in advance what annoys some people but
does not annoy others.”
Coates highlights what has been referred to as a
“perfectly vague” act whose obscurity is evident on its
face. It is to be distinguished, however, from legislation
coached in imprecise language – but which nonetheless
specifies a standard though defectively phrased – in
which case, it may be “saved” by proper construction. X
x x (People v. Dela Piedra, 350 SCRA 163, Jan. 24,
2001, 1st Div. [Kapunan])
2. The doctrine has been formulated in various
ways, but is commonly stated to the effect that a statute
establishing a criminal offense must define the offense
with sufficient definiteness that persons of ordinary
intelligence can understand what conduct is prohibited
by the statute. It can only be invoked against that
specie of legislation that is utterly vague on its face, i.e.,
that which cannot be clarified either by a saving clause
or by construction.
A statute or act may be said to be vague when it
lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and
differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects – it
violated due process for failure to accord persons,
especially the parties targeted by it, fair notice of what
conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle (See People
v. Nazario, No. L-44143, 31 August 1988, 165 SCRA 186,
195-196). But the doctrine does not apply as against
legislations that are merely couched in imprecise
language but which nonetheless specify a standard
though defectively phrased; or to those that are
apparently ambiguous yet fairly applicable to certain
types of activities. The first may be “saved” by proper
construction, while no challenge may be mounted as
against the second whenever directed against such
activities (Ibid.) With more reason, the doctrine cannot
be invoked where the assailed statute is clear and free
from ambiguity, as in this case.
The test in determining whether a criminal
statute is void for uncertainty is whether the language
conveys a sufficiently definite warning as to the
proscribed conduct when measured by common
understanding and practice (State v. Hill, 189 Kan 403,
369 P2d 365, 91 ALR 2d 750). It must be stressed,
however, that the “vagueness” doctrine merely requires
a reasonable degree of certainty for the statute to be
upheld – not absolute precision or mathematical
exactitude, as petitioner seems to suggest. Flexibility,
rather than meticulous specificity, is permissible as long
as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely
because it might have been more explicit in its wordings
or detailed in its provisions, especially where, because of
the nature of the act, it would be impossible to provide
all the details in advance as in all other statutes.
(Joseph Ejercito Estrada v. Sandiganbayan [Third
Division], G.R. No. 148560, Nov. 19, 2001, En
Banc [Bellosillo])
124. Does Article 13 (b) of the Labor Code defining
“recruitment and placement” violate the due process
clause?
Held: In support of her submission that Article 13 (b) is
void for vagueness, appellant invokes People v. Panis
(142 SCRA 664 [1986]), where this Court x x x
“criticized” the definition of “recruitment and placement”
x x x.
Appellant further argues that the acts that constitute
“recruitment and placement” suffer from overbreadth
since by merely “referring” a person for employment, a
person may be convicted of illegal recruitment.
These contentions cannot be sustained.
Appellant’s reliance on People v. Panis is misplaced. The
issue in Panis was whether, under the proviso of Article
13(b), the crime of illegal recruitment could be
committed only “whenever two or more persons are in
any manner promised or offered any employment for a
fee.” The Court held in the negative x x x.
X x x The Court, in Panis, merely bemoaned the lack of
records that would help shed light on the meaning of the
proviso. The absence of such records notwithstanding,
the Court was able to arrive at a reasonable
interpretation of the proviso by applying principles in
criminal law and drawing from the language and intent
of the law itself. Section 13(b), therefore, is not a
“perfectly vague act” whose obscurity is evident on its
face. If at all, the proviso therein is merely couched in
imprecise language that was salvaged by proper
construction. It is not void for vagueness.
Xxx
That Section 13(b) encompasses what appellant
apparently considers as customary and harmless acts
such as “labor or employment referral” (“referring” an
applicant, for employment to a prospective employer)
does not render the law overbroad. Evidently, appellant
misapprehends concept of overbreadth.
A statute may be said to be overbroad where it operates
to inhibit the exercise of individual freedoms
affirmatively guaranteed by the Constitution, such as the
freedom of speech or religion. A generally worded
statute, when construed to punish conduct which cannot
be constitutionally punished is unconstitutionally vague
to the extent that it fails to give adequate warning of the
boundary between the constitutionally permissible and
the constitutionally impermissible applications of the
statute (Wright v. Georgia, 373 US 284, 10 L Ed 2d 349,
83 S Ct 1240 [1963]).
In Blo Umpar Adiong v. Commission on Elections (207
SCRA 712 [1992]), for instance, we struck down as void
for overbreadth provisions prohibiting the posting of
election propaganda in any place – including private
vehicles – other than in the common poster areas
sanctioned by the COMELEC. We held that the
challenged provisions not only deprived the owner of the
vehicle the use of his property but also deprived the
citizen of his right to free speech and information. The
prohibition in Adiong, therefore, was so broad that it
covered even constitutionally guaranteed rights and,
hence, void for overbreadth. In the present case,
however, appellant did not even specify what
constitutionally protected freedoms are embraced by the
definition of “recruitment and placement” that would
render the same constitutionally overbroad. (People v.
Dela Piedra, 350 SCRA 163, Jan. 24, 2001, 1st Div.
[Kapunan])
125. Is the Plunder Law unconstitutional for being
vague?
Held: As it is written, the Plunder Law contains
ascertainable standards and well-defined parameters
which would enable the accused to determine the nature
of his violation. Section 2 is sufficiently explicit in its
description of the acts, conduct and conditions required
or forbidden, and prescribes the elements of the crime
with reasonable certainty and particularity. X x x
As long as the law affords some comprehensible
guide or rule that would inform those who are subject to
it what conduct would render them liable to its penalties,
its validity would be sustained. It must sufficiently guide
the judge in its application; the counsel, in defending
one charged with its violation; and more importantly,
the accused, in identifying the realm of the proscribed
conduct. Indeed, it can be understood with little
difficulty that what the assailed statute punishes is the
act of a public officer in amassing or accumulating ill-
gotten wealth of at least P50,000,000.00 through a
series or combination of acts enumerated in Sec. 1, par.
(d), of the Plunder Law.
In fact, the amended Information itself closely
tracks the language of the law, indicating with
reasonable certainty the various elements of the offense
which petitioner is alleged to have committed x x x.
We discern nothing in the foregoing that is
vague or ambiguous – as there is obviously none – that
will confuse petitioner in his defense. Although subject
to proof, these factual assertions clearly show that the
elements of the crime are easily understood and provide
adequate contrast between the innocent and the
prohibited acts. Upon such unequivocal assertions,
petitioner is completely informed of the accusations
against him as to enable him to prepare for an
intelligent defense.
 Petitioner, however, bewails the failure of the
law to provide for the statutory definition of the terms
“combination” and “series” in the key phrase “a
combination or series of overt or criminal acts” found in
Sec. 1, par. (d), and Sec. 2, and the word “pattern” in
Sec. 4. These omissions, according to petitioner, render
the Plunder Law unconstitutional for being impermissibly
vague and overbroad and deny him the right to be
informed of the nature and cause of the accusation
against him, hence, violative of his fundamental right to
due process.
The rationalization seems to us to be pure
sophistry. A statute is not rendered uncertain and void
merely because general terms are used therein, or
because of the employment of terms without defining
them (82 C.J.S. 68, P. 113; People v. Ring, 70 P.2d 281,
26 Cal. App. 2d Supp. 768); much less do we have to
define every word we use. Besides, there is no positive
constitutional or statutory command requiring the
legislature to define each and every word in an
enactment. Congress is not restricted in the form of
expression of its will, and its inability to so define the
words employed in a statute will not necessarily result in
the vagueness or ambiguity of the law so long as the
legislative will is clear, or at least, can be gathered from
the whole act, which is distinctly expressed in the
Plunder Law.
Moreover, it is a well-settled principle of legal
hermeneutics that words of a statute will be interpreted
in their natural, plain and ordinary acceptation and
signification (Mustang Lumber, Inc. v. Court of Appeals,
G.R. No. 104988, 18 June 1965, 257 SCRA 430, 448),
unless it is evident that the legislature intended a
technical or special legal meaning to those words (PLDT
v. Eastern Telecommunications Phil., Inc., G.R. No.
943774, 27 August 1992, 213 SCRA 16, 26). The
intention of the lawmakers – who are, ordinarily,
untrained philologists and lexicographers – to use
statutory phraseology in such a manner is always
presumed. Thus, Webster’s New Collegiate Dictionary
contains the following commonly accepted definition of
the words “combination” and “series.”
Combination – the result or product of combining; the
act or process of combining. To combine is to bring into
such close relationship as to obscure individual
characters.
Series – a number of things or events of the same class
coming one after another in spatial and temporal
succession.
That Congress intended the words
“combination” and “series” to be understood in their
popular meanings is pristinely evident from the
legislative deliberations on the bill which eventually
became RA 7080 or the Plunder Law x x x.
Xxx
Thus when the Plunder Law speaks of
“combination,” it is referring to at least two (2) acts
falling under different categories or enumeration
provided in Sec. 1, par. (d), e.g., raids on the public
treasury in Sec. 1, par. (d), subpar. (1), and fraudulent
conveyance of assets belonging to the National
Government under Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a “series” there
must be two (2) or more overt or criminal acts falling
under the same category of enumeration found in Sec.
1, par. (d), say, misappropriation, malversation and
raids on the public treasury, all of which fall under Sec.
1, par. (d), subpar. (1). Verily, had the legislature
intended a technical or distinctive meaning for
“combination” and “series,” it would have taken greater
pains in specifically providing for it in the law.
As for “pattern,” we agree with the observations
of the Sandiganbayan that this term is sufficiently
defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec.
2–
x x x under Sec. 1 (d) of the law, a ‘pattern’ consists of
at least a combination or series of overt or
criminal acts enumerated in subsections (1) to
(6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the
law, the pattern of overt or criminal acts is directed
towards a common purpose or goal which is to
enable the public officer to amass, accumulate or
acquire ill-gotten wealth. And thirdly, there must
either be an ‘overall unlawful scheme’ or
‘conspiracy’ to achieve said common goal. As
commonly understood, the term ‘overall unlawful
scheme’ indicates a ‘general plan of action or method’
which the principal accused and public officer and others
conniving with him follow to achieve the aforesaid
common goal. In the alternative, if there is no such
overall scheme or where the schemes or methods used
by multiple accused vary, the overt or criminal acts must
form part of a conspiracy to attain a common goal.
Xxx
Hence, it cannot plausibly be contended that the law
does not give a fair warning and sufficient notice of what
it seeks to penalize. Under the circumstances,
petitioner’s reliance on the “void-for-vagueness” doctrine
is manifestly misplaced.
Xxx
Moreover, we agree with, hence we adopt, the
observations of Mr. Justice Vicente V. Mendoza during
the deliberations of the Court that the allegations that
the Plunder Law is vague and overbroad do not justify a
facial review of its validity –
The void-for-vagueness doctrine states that “a statute
which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its
application violates the first essential of due process of
law.” (Connally v. General Constr. Co., 269 U.S. 385,
391, 70 L. Ed. 328 [1926] cited in Ermita-Malate Hotel
and Motel Operators Ass’n. v. City Mayor, 20 SCRA 849,
867 [1967]) The overbreadth doctrine, on the other
hand, decrees that “a governmental purpose may not be
achieved by means which sweep unnecessarily broadly
and thereby invade the area of protected freedoms.”
(NAACP v. Alabama, 377 U.S. 288, 307, 12, 2 L. Ed 325,
338 [1958]; Shelton v. Tucker, 364 U.S. 479, 5 L. Ed. 2d
231 [1960])
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. The
theory is that “[w]hen statutes regulate or proscribe
speech and no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes in a
single prosecution, the transcendent value to all society
of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no
requirement that the person making the attack
demonstrate that his own conduct could not be
regulated by a statute drawn with narrow specificity.”
(Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408,
413 [1972] [internal quotation marks omitted]) The
possible harm to society in permitting some unprotected
speed to go unpunished is outweighed by the possibility
that the protected speech of others may be deterred and
perceived grievances left to fester because of possible
inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal
statutes have general in terrorem effect resulting from
their very existence, and, if facial challenge is allowed
for this reason alone, the State may well be prevented
from enacting laws against socially harmful conduct. In
the area of criminal law, the law cannot take chances as
in the area of free speech.
The overbreadth and vagueness doctrine then have
special application only to free speech cases. They are
inapt for testing the validity of penal statutes. As the
U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, “we have not recognized an ‘overbreadth’
doctrine outside the limited context of the First
Amendment.” In Broadwick v. Oklahoma (413 U.S. 601,
612-613, 37 L Ed. 2d 830, 840-841 [1973]), the Court
ruled that “claims of facial overbreadth have been
entertained in cases involving statutes which, by their
terms, seek to regulate only spoken words” and, again,
that “overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct.” For
this reason, it has been held that “a facial challenge to a
legislative act is the most difficult challenge to mount
successfully, since the challenger must establish that no
set of circumstances exists under which the Act would
be valid.” (United States v. Salerno, supra.) As for the
vagueness doctrine, it is said that a litigant may
challenge a statute on its face only if it is vague in all its
possible applications. “A plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of
others.” (Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 494-95, 71 L Ed. 2d 362,
369 [1982])
In sum, the doctrines of strict scrutiny, overbreadth, and
vagueness are analytical tools developed for testing “on
their faces” statutes in free speech cases or, as they are
called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a
criminal statute. With respect to such statute, the
established rule is that “one to whom application of a
statute is constitutional will not be heard to attack the
statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in
which its application might be unconstitutional.” (United
States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524, 529
[1960]. The paradigmatic case is Yazoo & Mississippi
Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 l.
Ed. 193 [1912]) As has been pointed out, “vagueness
challenges in the First Amendment context, like
overbreadth challenges typically produce facial
invalidation, while statutes found to be vague as a
matter of due process typically are invalidated [only] ‘as
applied’ to a particular defendant.” (G. Gunther & K.
Sullivan, Constitutional Law 1299 [2001]) Consequently,
there is no basis for petitioner’s claim that this Court
review the Anti-Plunder Law on its face and in its
entirety.
Indeed, “on its face” invalidation of statutes results in
striking them down entirely on the ground that they
might be applied to parties not before the Court whose
activities are constitutionally protected (Id. at 1328). It
constitutes a departure from the case and controversy
requirement of the Constitution and permits decisions to
be made without concrete factual settings and in sterile
abstract contexts (Constitution, Art. VIII, Sections 1 and
5. Compare Angara v. Electoral Commission, 63 Phil.
139, 158 [1936]). But, as the U.S. Supreme Court
pointed out in Younger v. Harris (401 U.S. 37, 52-53, 27
L. Ed. 2d 669, 680 [1971]; others omitted.)
[T]he task of analyzing a proposed statute, pinpointing
its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely
if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the
controversy, the impact on the legislative process of the
relief sought, and above all the speculative and
amorphous nature of the required line-by-line analysis of
detailed statutes, x x x ordinarily results in a kind of case
that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.
For these reasons, “on its face” invalidation of statutes
has been described as “manifestly strong medicine,” to
be employed “sparingly and only as a last resort,”
(Broadwick v. Oklahoma, 413 U.S. at 613, 37 L.Ed.2d at
841; National Endowment for the Arts v. Finley, 524 U.S.
569, 580 [1998]) and is generally disfavored (FW/PBS,
Inc. v. City of Dallas, 493 U.S. 223, 107 L.Ed.2d 603
[1990]; Cruz v. Secretary of Environment and Natural
Resources, G.R. No. 135385, 6 December 2000
[Mendoza, J., Separate Opinion]). In determining the
constitutionality of a statute, therefore, its provisions
which are alleged to have been violated in a case must
be examined in the light of the conduct with which the
defendant is charged (United States v. National Dairy
Prod. Corp., 372 U.S. 29, 32-33, 9 L.Ed.2d 561, 565-6
[1963])
In light of the foregoing disquisition, it is evident
that the purported ambiguity of the Plunder Law, so
tenaciously claimed and argued at length by petitioner,
is more imagined than real. Ambiguity, where none
exists, cannot be created by dissecting parts and words
in the statute to furnish support to critics who cavil at
the want of scientific precision in the law. Every
provision of the law should be construed in relation and
with reference to every other part. To be sure, it will
take more than nitpicking to overturn the well-
entrenched presumption of constitutionality and validity
of the Plunder Law. A fortiori, petitioner cannot feign
ignorance of what the Plunder Law is all about. Being
one of the Senators who voted for its passage, petitioner
must be aware that the law was extensively deliberated
upon by the Senate and its appropriate committees by
reason of which he even registered his affirmative vote
with full knowledge of its legal implications and sound
constitutional anchorage. (Joseph Ejercito Estrada v.
Sandiganbayan [Third Division], G.R. No. 148560,
Nov. 19, 2001, En Banc [Bellosillo])
A. THE INHERENT POWERS OF THE STATE
Police Power
126. Define Police Power and clarify its scope.
Held: 1. Police power is an inherent attribute of
sovereignty. It has been defined as the power vested by
the Constitution in the legislature to make, ordain, and
establish all manner of wholesome and reasonable laws,
statutes and ordinances, either with penalties or without,
not repugnant to the Constitution, as they shall judge to
be for the good and welfare of the commonwealth, and
for the subjects of the same. The power is plenary and
its scope is vast and pervasive, reaching and justifying
measures for public health, public safety, public morals,
and the general welfare.
It bears stressing that police power is lodged primarily in
the National Legislature. It cannot be exercised by any
group or body of individuals not possessing legislative
power. The National Legislature, however, may delegate
this power to the President and administrative boards as
well as the lawmaking bodies of municipal corporations or
local government units. Once delegated, the agents can
exercise only such legislative powers as are conferred on
them by the national lawmaking body . (Metropolitan
Manila Development Authority v. Bel-Air Village
Association, Inc., 328 SCRA 836, 843-844, March
27, 2000, 1st Div. [Puno])
2. The scope of police power has been held to be so
comprehensive as to encompass almost all matters
affecting the health, safety, peace, order, morals, comfort
and convenience of the community. Police power is
essentially regulatory in nature and the power to issue
licenses or grant business permits, if exercised for a
regulatory and not revenue-raising purpose, is within the
ambit of this power.
Xxx
[T]he issuance of business licenses and permits by a
municipality or city is essentially regulatory in nature. The
authority, which devolved upon local government units to
issue or grant such licenses or permits, is essentially in
the exercise of the police power of the State within the
contemplation of the general welfare clause of the Local
Government Code. (Acebedo Optical Company, Inc.
v. Court of Appeals, 329 SCRA 314, March 31,
2000, En Banc [Purisima])
127. Discuss the nature of the authority of local
government units to issue or grant licenses or permits.
Held: The issuance of business licenses and permits by
a municipality or city is essentially regulatory in nature.
The authority, which devolved upon local government
units to issue or grant such licenses or permits, is
essentially in the exercise of the police power of the State
within the contemplation of the general welfare clause of
the Local Government Code. (Acebedo Optical
Company, Inc. v. Court of Appeals, 329 SCRA 314,
March 31, 2000, En Banc [Purisima])
128. How should laws that grant the right to exercise
a part of the police power of the State be construed?
Held: Lest the idea gets lost in the shoals of our
subconsciousness, let us not forget that PAGCOR is
engaged in business affected with public interest. The
phrase “affected with public interest” means that an
industry is subject to control for the public good (Nebbia
v. New York, 291 U.S. 502); it has been considered as the
equivalent of “subject to the exercise of the police power.”
(Bernas, The 1987 Constitution of the Republic of the
Philippines, A Commentary, 1996 ed., p. 1053) Perforce,
a legislative franchise to operate jai-alai is imbued with
public interest and involves an exercise of police power.
The familiar rule is that laws which grant the right to
exercise a part of the police power of the state are to be
construed strictly and any doubt must be resolved against
the grant (People v. Chicago, 103 N.E. 609; Slaughter v.
O’Berry, 35 S.E. 241, 48 L.R.A. 442). The legislature is
regarded as the guardian of society, and therefore is not
presumed to disable itself or abandon the discharge of its
duty. Thus, courts do not assume that the legislature
intended to part away with its power to regulate public
morals (Stone v. Mississippi, 101 U.S. 814). The
presumption is influenced by constitutional
considerations. Constitutions are widely understood to
withhold from legislatures any authority to bargain away
their police power (Sutherland Statutory Construction,
Vol. 3, 5th ed., p. 244) for the power to protect the public
interest is beyond abnegation.
It is stressed that the case at bar does not involve
a franchise to operate a public utility (such as water,
transportation, communication or electricity) – the
operation of which undoubtedly redounds to the benefit
of the general public. What is claimed is an alleged
legislative grant of a gambling franchise – a franchise to
operate jai-alai. A statute which legalizes a gambling
activity or business should be strictly construed and every
reasonable doubt must be resolved to limit the powers
and rights claimed under its authority (Aicardi v. Alabama,
22 L.Ed. 215; West Indies, Inc. v. First National Bank, 214
P.2d 144). (Del Mar v. Philippine Amusement and
Gaming Corporation, 346 SCRA 485, Nov. 29,
2000, En Banc [Puno])
129. Discuss why rates to be charged by public utilities
like MERALCO are subject to State regulation.
Held: The regulation of rates to be charged by public
utilities is founded upon the police power of the State
and statutes prescribing rules for the control and
regulations of public utilities are a valid exercise thereof.
When private property is used for a public purpose and
is affected with public interest, it ceases to be juris
privati only and becomes subject to regulation. The
regulation is to promote the common good. Submission
to regulation may be withdrawn by the owner by
discontinuing use; but as long as the use of the property
is continued, the same is subject to public regulation
(Munn v. People of the State of Illinois, 94 U.S. 113, 126
[1877]).
In regulating rates charged by public utilities,
the State protects the public against arbitrary and
excessive rates while maintaining the efficiency and
quality of services rendered. However, the power to
regulate rates does not give the State the right to
prescribe rates which are so low as to deprive the public
utility of a reasonable return on investment. Thus, the
rates prescribed by the State must be one that
yields a fair return on the public utility upon the
value of the property performing the service and
one that is reasonable to the public for the
service rendered (IV A.F. Agbayani, Commentaries
and Jurisprudence on the Commercial Laws of the
Philippines 500 [1993]). The fixing of just and
reasonable rates involves a balancing of the investor
and the consumer interests (Federal Power Commission
v. Hope Natural Gas Co., 320 U.S. 591). (Republic of
the Philippines v. Manila Electric Company, G.R.
No. 141314, Nov. 15, 2002, 3rd Div. [Puno])
130. What powers of the State are involved in the
implementation of the Comprehensive Agrarian Reform
Law (CARL)? Discuss.
Held: The implementation of the CARL is an exercise of
the State’s police power and the power of eminent
domain. To the extent that the CARL prescribes retention
limits to the landowners, there is an exercise of police
power for the regulation of private property in accordance
with the Constitution (Association of Small Landowners in
the Philippines v. Secretary of Agrarian Reform, 175 SCRA
343, 373-374 [1989]). But where, to carry out such
regulation, the owners are deprived of lands they own in
excess of the maximum area allowed, there is also a
taking under the power of eminent domain. The taking
contemplated is not a mere limitation of the use of the
land. What is required is the surrender of the title to and
physical possession of the said excess and all beneficial
rights accruing to the owner in favor of the farmer
beneficiary (Id.). The Bill of Rights provides that “[n]o
person shall be deprived of life, liberty or property
without due process of law.” (Section 1, Article III, 1987
Constitution) The CARL was not intended to take away
property without due process of law (Development Bank
of the Philippines v. Court of Appeals, 262 SCRA 245, 253
[1996]). The exercise of the power of eminent domain
requires that due process be observed in the taking of
private property. (Roxas & Co., Inc. v. Court of
Appeals, 321 SCRA 106, Dec. 17, 1999, En Banc
[Puno])
131. Does Article 263(g) of the Labor Code (vesting
upon the Secretary of Labor the discretion to determine
what industries are indispensable to the national interest
and thereafter, assume jurisdiction over disputes in said
industries) violate the workers’ constitutional right to
strike?
Held: Said article does not interfere with the workers’
right to strike but merely regulates it, when in the exercise
of such right, national interests will be affected. The
rights granted by the Constitution are not absolute. They
are still subject to control and limitation to ensure that
they are not exercised arbitrarily. The interests of both
the employers and the employees are intended to be
protected and not one of them is given undue preference.
The Labor Code vests upon the Secretary of Labor the
discretion to determine what industries are indispensable
to national interest. Thus, upon the determination of the
Secretary of Labor that such industry is indispensable to
the national interest, it will assume jurisdiction over the
labor dispute of said industry. The assumption of
jurisdiction is in the nature of police power measure. This
is done for the promotion of the common good
considering that a prolonged strike or lockout can be
inimical to the national economy. The Secretary of Labor
acts to maintain industrial peace. Thus, his certification
for compulsory arbitration is not intended to impede the
workers’ right to strike but to obtain a speedy settlement
of the dispute. (Philtread Workers Union [PTWU] v.
Confesor, 269 SCRA 393, March 12, 1997)
132. May solicitation for religious purposes be subject
to proper regulation by the State in the exercise of police
power?
Held: The constitutional inhibition of legislation on the
subject of religion has a double aspect. On the one hand,
it forestalls compulsion by law of the acceptance of any
creed or the practice of any form of worship. Freedom of
conscience and freedom to adhere to such religious
organization or form of worship as the individual may
choose cannot be restricted by law. On the other hand,
it safeguards the free exercise of the chosen form of
religion. Thus, the Constitution embraces two concepts,
that is, freedom to believe and freedom to act. The first
is absolute but, in the nature of things, the second cannot
be. Conduct remains subject to regulation for the
protection of society. The freedom to act must have
appropriate definitions to preserve the enforcement of
that protection. In every case, the power to regulate
must be so exercised, in attaining a permissible end, as
not to unduly infringe on the protected freedom.
Whence, even the exercise of religion may be regulated,
at some slight inconvenience, in order that the State may
protect its citizens from injury. Without doubt, a State
may protect its citizens from fraudulent solicitation by
requiring a stranger in the community, before permitting
him publicly to solicit funds for any purpose, to establish
his identity and his authority to act for the cause which
he purports to represent. The State is likewise free to
regulate the time and manner of solicitation generally, in
the interest of public safety, peace, comfort, or
convenience.
It does not follow, therefore, from the constitutional
guarantees of the free exercise of religion that everything
which may be so called can be tolerated. It has been said
that a law advancing a legitimate governmental interest
is not necessarily invalid as one interfering with the “free
exercise” of religion merely because it also incidentally
has a detrimental effect on the adherents of one or more
religion. Thus, the general regulation, in the public
interest, of solicitation, which does not involve any
religious test and does not unreasonably obstruct or delay
the collection of funds, is not open to any constitutional
objection, even though the collection be for a religious
purpose. Such regulation would not constitute a
prohibited previous restraint on the free exercise of
religion or interpose an inadmissible obstacle to its
exercise.
Even with numerous regulative laws in existence, it is
surprising how many operations are carried on by persons
and associations who, secreting their activities under the
guise of benevolent purposes, succeed in cheating and
defrauding a generous public. It is in fact amazing how
profitable the fraudulent schemes and practices are to
people who manipulate them. The State has authority
under the exercise of its police power to determine
whether or not there shall be restrictions on soliciting by
unscrupulous persons or for unworthy causes or for
fraudulent purposes. That solicitation of contributions
under the guise of charitable and benevolent purposes is
grossly abused is a matter of common knowledge.
Certainly the solicitation of contributions in good faith for
worthy purposes should not be denied, but somewhere
should be lodged the power to determine within
reasonable limits the worthy from the unworthy . The
objectionable practices of unscrupulous persons are
prejudicial to worthy and proper charities which naturally
suffer when the confidence of the public in campaigns for
the raising of money for charity is lessened or destroyed.
Some regulation of public solicitation is, therefore, in the
public interest.
To conclude, solicitation for religious purposes may be
subject to proper regulation by the State in the exercise
of police power. (Centeno v. Villalon-Pornillos, 236
SCRA 197, Sept. 1, 1994 [Regalado])
The Power of Eminent Domain
132. What is Eminent Domain?
Held: 1. Eminent domain is the right or power of a
sovereign state to appropriate private property to
particular uses to promote public welfare. It is an
indispensable attribute of sovereignty; a power grounded
in the primary duty of government to serve the common
need and advance the general welfare. Thus, the right of
eminent domain appertains to every independent
government without the necessity for constitutional
recognition. The provisions found in modern constitutions
of civilized countries relating to the taking of property for
the public use do not by implication grant the power to
the government, but limit a power which would otherwise
be without limit. Thus, our own Constitution provides that
“[p]rivate property shall not be taken for public use
without just compensation.” (Art. III, Sec. 9).
Furthermore, the due process and equal protection
clauses (1987 Constitution, Art. III, Sec. 1) act as
additional safeguards against the arbitrary exercise of this
governmental power.
Since the exercise of the power of eminent domain affects
an individual’s right to private property, a constitutionally-
protected right necessary for the preservation and
enhancement of personal dignity and intimately
connected with the rights to life and liberty, the need for
its circumspect operation cannot be overemphasized. In
City of Manila v. Chinese Community of Manila we said
(40 Phil. 349 [1919):
The exercise of the right of eminent domain, whether
directly by the State, or by its authorized agents, is
necessarily in derogation of private rights, and the rule in
that case is that the authority must be strictly construed.
No species of property is held by individuals with greater
tenacity, and none is guarded by the Constitution and the
laws more sedulously, than the right to the freehold of
inhabitants. When the legislature interferes with that
right, and, for greater public purposes, appropriates the
land of ah individual without his consent, the plain
meaning of the law should not be enlarged by doubt[ful]
interpretation. (Bensley v. Mountainlake Water Co., 13
Cal., 306 and cases cited [73 Am. Dec., 576])
The statutory power of taking property from the owner
without his consent is one of the most delicate exercise
of governmental authority. It is to be watched with
jealous scrutiny. Important as the power may be to the
government, the inviolable sanctity which all free
constitutions attach to the right of property of the citizens,
constrains the strict observance of the substantial
provisions of the law which are prescribed as modes of
the exercise of the power, and to protect it from abuse x
x x.
The power of eminent domain is essentially legislative in
nature. It is firmly settled, however, that such power may
be validly delegated to local government units, other
public entities and public utilities, although the scope of
this delegated legislative power is necessarily narrower
than that of the delegating authority and may only be
exercised in strict compliance with the terms of the
delegating law. (Heirs of Alberto Suguitan v. City of
Mandaluyong, 328 SCRA 137, 144-146, March 14,
2000, 3rd Div. [Gonzaga-Reyes])
2. Eminent domain is a fundamental State power that is
inseparable from sovereignty. It is government’s right to
appropriate, in the nature of a compulsory sale to the
State, private property for public use or purpose.
Inherently possessed by the national legislature, the
power of eminent domain may be validly delegated to
local governments, other public entities and public
utilities. For the taking of private property by the
government to be valid, the taking must be for public
purpose and there must be just compensation. (Moday
v. Court of Appeals, 268 SCRA 586, February 20,
1997)
133. State some limitations on the exercise of the
power of Eminent Domain.
Held: The limitations on the power of eminent domain
are that the use must be public, compensation must be
made and due process of law must be observed. The
Supreme Court, taking cognizance of such issues as the
adequacy of compensation, necessity of the taking and
the public use character or the purpose of the taking, has
ruled that the necessity of exercising eminent domain
must be genuine and of a public character. Government
may not capriciously choose what private property should
be taken. (Moday v. Court of Appeals, 268 SCRA
586, February 20, 1997)
134. Discuss the expanded notion of public use in
eminent domain proceedings.
Held: The City of Manila, acting through its legislative
branch, has the express power to acquire private lands in
the city and subdivide these lands into home lots for sale
to bona fide tenants or occupants thereof, and to laborers
and low-salaried employees of the city.
That only a few could actually benefit from the
expropriation of the property does not diminish its public
character. It is simply not possible to provide all at once
land and shelter for all who need them.
Corollary to the expanded notion of public use,
expropriation is not anymore confined to vast tracts of
land and landed estates. It is therefore of no moment
that the land sought to be expropriated in this case is less
than half a hectare only.
Through the years, the public use requirement in eminent
domain has evolved into a flexible concept, influenced by
changing conditions. Public use now includes the broader
notion of indirect public benefit or advantage, including in
particular, urban land reform and housing. (Filstream
International Incorporated v. CA, 284 SCRA 716,
Jan. 23, 1998 [Francisco])
135. The constitutionality of Sec. 92 of B.P. Blg. 881
(requiring radio and television station owners and
operators to give to the Comelec radio and television time
free of charge) was challenged on the ground, among
others, that it violated the due process clause and the
eminent domain provision of the Constitution by taking
airtime from radio and television broadcasting stations
without payment of just compensation. Petitioners claim
that the primary source of revenue of radio and television
stations is the sale of airtime to advertisers and that to
require these stations to provide free airtime is to
authorize a taking which is not “a de minimis temporary
limitation or restraint upon the use of private property.”
Will you sustain the challenge?
Held: All broadcasting, whether by radio or by television
stations, is licensed by the government. Airwave
frequencies have to be allocated as there are more
individuals who want to broadcast than there are
frequencies to assign. A franchise is thus a privilege
subject, among other things, to amendment by Congress
in accordance with the constitutional provision that “any
such franchise or right granted x x x shall be subject to
amendment, alteration or repeal by the Congress when
the common good so requires.” (Art. XII, Sec. 11)
Indeed, provisions for Comelec Time have been made by
amendment of the franchises of radio and television
broadcast stations and such provisions have not been
thought of as taking property without just compensation.
Art. XII, Sec. 11 of the Constitution authorizes the
amendment of franchises for “the common good.” What
better measure can be conceived for the common good
than one for free airtime for the benefit not only of
candidates but even more of the public, particularly the
voters, so that they will be fully informed of the issues in
an election? “[I]t is the right of the viewers and listeners,
not the right of the broadcasters, which is paramount.”
Nor indeed can there be any constitutional objection to
the requirement that broadcast stations give free airtime.
Even in the United States, there are responsible scholars
who believe that government controls on broadcast media
can constitutionally be instituted to ensure diversity of
views and attention to public affairs to further the system
of free expression. For this purpose, broadcast stations
may be required to give free airtime to candidates in an
election.
In truth, radio and television broadcasting companies,
which are given franchises, do not own the airwaves and
frequencies through which they transmit broadcast
signals and images. They are merely given the temporary
privilege of using them. Since a franchise is a mere
privilege, the exercise of the privilege may reasonably be
burdened with the performance by the grantee of some
form of public service.
In the granting of the privilege to operate broadcast
stations and thereafter supervising radio and television
stations, the State spends considerable public funds in
licensing and supervising such stations. It would be
strange if it cannot even require the licensees to render
public service by giving free airtime.
The claim that petitioner would be losing P52,380,000.00
in unrealized revenue from advertising is based on the
assumption that airtime is “finished product” which, it is
said, become the property of the company, like oil
produced from refining or similar natural resources after
undergoing a process for their production. As held in Red
Lion Broadcasting Co. v. F.C.C. (395 U.S. at 394, 23 L. Ed.
2d at 391, quoting 47 U.S.C. Sec. 301), which upheld the
right of a party personally attacked to reply, “licenses to
broadcast do not confer ownership of designated
frequencies, but only the temporary privilege of using
them.” Consequently, “a license permits broadcasting,
but the licensee has no constitutional right to be the one
who holds the license or to monopolize a radio frequency
to the exclusion of his fellow citizens. There is nothing in
the First Amendment which prevents the government
from requiring a licensee to share his frequency with
others and to conduct himself as a proxy or fiduciary with
obligations to present those views and voices which are
representative of his community and which would
otherwise, by necessity, be barred from the airwaves.” As
radio and television broadcast stations do not own the
airwaves, no private property is taken by the requirement
that they provide airtime to the Comelec. (TELEBAP,
Inc. v. COMELEC, 289 SCRA 337, April 21, 1998
[Mendoza])
136. May eminent domain be barred by "res judicata"
or "law of the case"?
Held: The principle of res judicata, which finds
application in generally all cases and proceedings, cannot
bar the right of the State or its agents to expropriate
private property. The very nature of eminent domain, as
an inherent power of the State, dictates that the right to
exercise the power be absolute and unfettered even by a
prior judgment or res judicata. The scope of eminent
domain is plenary and, like police power, can “reach every
form of property which the State might need for public
use.” All separate interests of individuals in property are
held of the government under this tacit agreement or
implied reservation. Notwithstanding the grant to
individuals, the eminent domain, the highest and most
exact idea of property, remains in the government, or in
the aggregate body of the people in their sovereign
capacity; and they have the right to resume the
possession of the property whenever the public interest
requires it.” Thus, the State or its authorized agent
cannot be forever barred from exercising said right by
reason alone of previous non-compliance with any legal
requirement.
While the principle of res judicata does not denigrate the
right of the State to exercise eminent domain, it does
apply to specific issues decided in a previous case. For
example, a final judgment dismissing an expropriation
suit on the ground that there was no prior offer precludes
another suit raising the same issue; it cannot, however,
bar the State or its agent from thereafter complying with
this requirement, as prescribed by law, and subsequently
exercising its power of eminent domain over the same
property. (Municipality of Paranaque v. V.M. Realty
Corporation, 292 SCRA 678, July 20, 1998
[Panganiban])
137. Discuss how expropriation may be initiated, and
the two stages in expropriation.
Held: Expropriation may be initiated by court action or
by legislation. In both instances, just compensation is
determined by the courts (EPZA v. Dulay, 149 SCRA 305
[1987]).
The expropriation of lands consists of two stages. As
explained in Municipality of Binan v. Garcia (180 SCRA
576, 583-584 [1989], reiterated in National Power Corp.
v. Jocson, 206 SCRA 520 [1992]):
The first is concerned with the determination of the
authority of the plaintiff to exercise the power of eminent
domain and the propriety of its exercise in the context of
the facts involved in the suit. It ends with an order, if not
dismissal of the action, "of condemnation declaring that
the plaintiff has a lawful right to take the property sought
to be condemned, for the public use or purpose declared
in the complaint, upon the payment of just compensation
to be determined as of the date of the filing of the
complaint" x x x.
The second phase of the eminent domain action is
concerned with the determination by the court of "the just
compensation for the property sought to be taken." This
is done by the court with the assistance of not more than
three (3) commissioners x x x.
It is only upon the completion of these two stages that
expropriation is said to have been completed. Moreover,
it is only upon payment of just compensation that title
over the property passes to the government. Therefore,
until the action for expropriation has been completed and
terminated, ownership over the property being
expropriated remains with the registered owner.
Consequently, the latter can exercise all rights pertaining
to an owner, including the right to dispose of his property,
subject to the power of the State ultimately to acquire it
through expropriation. (Republic v. Salem
Investment Corporation, et. al., G.R. No. 137569,
June 23, 2000, 2nd Div. [Mendoza])
138. Does the two (2) stages in expropriation apply
only to judicial, and not to legislative, expropriation?
Held: The De la Ramas are mistaken in arguing that the
two stages of expropriation x x x only apply to judicial,
and not to legislative, expropriation. Although Congress
has the power to determine what land to take, it can not
do so arbitrarily. Judicial determination of the propriety
of the exercise of the power, for instance, in view of
allegations of partiality and prejudice by those adversely
affected, and the just compensation for the subject
property is provided in our constitutional system.
We see no point in distinguishing between judicial and
legislative expropriation as far as the two stages
mentioned above are concerned. Both involve these
stages and in both the process is not completed until
payment of just compensation is made. The Court of
Appeals was correct in saying that B.P. Blg. 340 did not
effectively expropriate the land of the De la Ramas. As a
matter of fact, it merely commenced the expropriation of
the subject property.
Xxx
The De la Ramas make much of the fact that ownership
of the land was transferred to the government because
the equitable and the beneficial title was already acquired
by it in 1983, leaving them with only the naked title.
However, as this Court held in Association of Small
Landowners in the Phil., Inc. v. Secretary of Agrarian
Reform (175 SCRA 343, 389 [1989]):
The recognized rule, indeed, is that title to the property
expropriated shall pass from the owner to the
expropriator only upon full payment of the just
compensation. Jurisprudence on this settled principle is
consistent both here and in other democratic jurisdictions.
Xxx
(Republic v. Salem Investment Corporation, et. al.,
G.R. No. 137569, June 23, 2000, 2nd Div.
[Mendoza])
139. Is prior unsuccessful negotiation a condition
precedent for the exercise of eminent domain?
Held: Citing Iron and Steel Authority v. Court of
Appeals (249 SCRA 538, October 25, 1995), petitioner
insists that before eminent domain may be exercised by
the state, there must be a showing of prior unsuccessful
negotiation with the owner of the property to be
expropriated.
This contention is not correct. As pointed out by
the Solicitor General the current effective law on
delegated authority to exercise the power of eminent
domain is found in Section 12, Book III of the Revised
Administrative Code, which provides:
“SEC. 12. Power of Eminent Domain – The President shall
determine when it is necessary or advantageous to
exercise the power of eminent domain in behalf of the
National Government, and direct the Solicitor General,
whenever he deems the action advisable, to institute
expropriation proceedings in the proper court.”
 The foregoing provision does not require prior
unsuccessful negotiation as a condition precedent for the
exercise of eminent domain. In Iron and Steel Authority
v. Court of Appeals, the President chose to prescribe this
condition as an additional requirement instead. In the
instant case, however, no such voluntary restriction was
imposed. (SMI Development Corporation v.
Republic, 323 SCRA 862, Jan. 28, 2000, 3rd Div.
[Panganiban])
140. Discuss the nature of the right of eminent
domain and the limitations thereof.
Held: The right of eminent domain is usually
understood to be an ultimate right of the sovereign power to
appropriate any property within its territorial sovereignty for a
public purpose (Bernas, 1987 Edition, p. 276, quoting Justice
Story in Charles River Bridge v. Warren Bridge).
Fundamental to the independent existence of a State, it
requires no recognition by the Constitution, whose provisions
are taken as being merely confirmatory of its presence and as
being regulatory, at most, in the due exercise of the power. In
the hands of the legislature, the power is inherent, its scope
matching that of taxation, even that of police power itself, in
many respects. It reaches to every form of property the State
needs for public use and, as an old case so puts it, all separate
interests of individuals in property are held under a tacit
agreement or implied reservation vesting upon the sovereign
the right to resume the possession of the property whenever
the public interest so requires it (US v. Certain Lands in
Highlands [DY NY] 48 F Supp 306).
The ubiquitous character of eminent domain is
manifest in the nature of the expropriation proceedings.
Expropriation proceedings are not adversarial in the
conventional sense, for the condemning authority is not
required to assert any conflicting interest in the property.
Thus, by filing the action, the condemnor in effect merely
serves notice that it is taking title and possession of the
property, and the defendant asserts title or interest in the
property, not to prove a right to possession, but to prove a
right to compensation for the taking (US v. Certain Lands in
Highlands [DY NY] 48 F Supp 306; San Bernardino Valley
Municipal Water District v. Gage Canal Co. [4th Dist] Cal
App 2d 206, 37 Cal Rptr 856).
Obviously, however, the power is not without its
limits: first, the taking must be for public use, and second, that
just compensation must be given to the private owner of the
property (Sena v. Manila Railroad Co., 42 Phil. 102). These
twin proscriptions have their origin in the recognition of the
necessity for achieving balance between the State interests, on
the one hand, and private rights, upon the other hand, by
effectively restraining the former and affording protection to
the latter (Visayan Refining Co. v. Camus, 40 Phil. 550). In
determining “public use,” two approaches are utilized – the
first is public employment or the actual use by the public, and
the second is public advantage or benefit (Thornton
Development authority v. Upah [DC Colo] 640 F Supp 1071).
It is also useful to view the matter as being subject to constant
growth, which is to say that as society advances, its demands
upon the individual so increases, and each demand is a new
use to which the resources of the individual may be devoted
(Visayan Refining, supra). (Republic of the Philippines v.
The Hon. Court of Appeals, G.R. No. 146587, July 2, 2002,
1st Div. [Vitug])
141. What is the meaning of “public use” in eminent
domain proceedings? Illustrative case.
Held: This Court holds that respondent
(Philippine Export Processing Zone) has the legal
authority to expropriate the subject Lot 1406-B and that
the same was for a valid public purpose. In Sumulong v.
Guerrero (154 SCRA 461, 467-468 [1987]), this Court has
ruled that,
The “public use” requirement for a valid exercise of the
power of eminent domain is a flexible and evolving
concept influenced by changing conditions. In this
jurisdiction, the statutory and judicial trend has been
summarized as follows:
This Court has ruled that the taking to be valid must be
for public use. There was a time when it was felt that a
literal meaning should be attached to such a requirement.
Whatever project is undertaken must be for the public to
enjoy, as in the case of streets or parks. Otherwise,
expropriation is not allowable. It is not anymore. As long
as the purpose of the taking is public, then the power of
eminent domain comes into play . . . It is accurate to state
then that at present whatever may be beneficially
employed for the general welfare satisfies the
requirement of public use. (Heirs of Juancho Ardona v.
Reyes, 125 SCRA 220 [1983] at 234-235 quoting E.
Fernando, the Constitution of the Philippines 523-4 [2nd
Ed. 1977])
The term “public use” has acquired a more
comprehensive coverage. To the literal import of the
term signifying strict use or employment by the public has
been added the broader notion of indirect public benefit
or advantage.
In Manosca v. Court of Appeals, this Court has
also held that what ultimately emerged is a concept of
public use which is just as broad as “public welfare.” (252
SCRA 412, 422 [1996], quoting Joaquin Bernas, The
Constitution of the Republic of the Philippines, Vol. 1,
1987 ed., p. 282)
Respondent PEZA expropriated the subject parcel
of land pursuant to Proclamation No. 1980 x x x issued by
former President Ferdinand Marcos. Meanwhile, the
power of eminent domain of respondent is contained in
its original charter, Presidential Decree No. 66 x x x.
Accordingly, subject Lot 1406-B was expropriated
“for the construction . . . of terminal facilities, structures
and approaches thereto.” The authority is broad enough
to give the respondent substantial leeway in deciding for
what public use the expropriated property would be
utilized. Pursuant to this broad authority, respondent
leased a portion of the lot to commercial banks while the
rest was made a transportation terminal. Said public
purposes were even reaffirmed by Republic Act No. 7916,
a law amending respondent PEZA’s original charter x x x.
In Manila Railroad Co. v. Mitchel (50 Phil. 832,
837-838 [1927]), this Court has ruled that in the exercise
of eminent domain, only as much land can be taken as is
necessary for the legitimate purpose of the
condemnation. The term “necessary,” in this connection,
does not mean absolutely indispensable but requires only
a reasonable necessity of the taking for the stated
purpose, growth and future needs of the enterprise. The
respondent cannot attain a self-sustaining and viable
ECOZONE if inevitable needs in the expansion in the
surrounding areas are hampered by the mere refusal of
the private landowners to part with their properties. The
purpose of creating an ECOZONE and other facilities is
better served if respondent directly owns the areas
subject of the expansion program.
X x x. The expropriation of Lot 1406-B for the
purpose of being leased to banks and for the construction
of a terminal has the purpose of making banking and
transportation facilities easily accessible to the persons
working at the industries located in PEZA. The
expropriation of adjacent areas therefore comes as a
matter of necessity to bring life to the purpose of the law.
In such a manner, PEZA’s goal of being a major force in
the economic development of the country would be
realized. Furthermore, this Court has already ruled that:
X x x [T]he Legislature may directly determine the
necessity for appropriating private property for a
particular improvement for public use, and it may select
the exact location of the improvement. In such a case, it
is well-settled that the utility of the proposed
improvement, the existence of the public necessity for its
construction, the expediency of constructing it, the
suitableness of the location selected, are all questions
exclusively for the legislature to determine, and the courts
have no power to interfere or to substitute their own
views for those of the representatives of the people.
In the absence of some constitutional or statutory
provisions to the contrary, the necessity and expediency
of exercising the right of eminent domain are questions
essentially political and not judicial in their character. (City
of Manila v. Chinese Community of Manila, 40 Phil. 349
[1919])
Inasmuch as both Presidential Decree No. 66 and
Republic Act No. 7916, bestow respondent with
authority to develop terminal facilities and banking
centers, this Court will not question the respondent’s
lease of certain portions of the expropriated lot to banks,
as well as the construction of terminal facilities.
Petitioner contends that respondent is bound by
the representations of its Chief Civil Engineer when the
latter testified before the trial court that the lot was to be
devoted for the construction of government offices.
Anent this issue, suffice it to say that PEZA can vary the
purpose for which a condemned lot will be devoted to,
provided that the same is for public use. Petitioner cannot
impose or dictate on the respondent what facilities to
establish for as long as the same are for public purpose.
(Estate of Salud Jimenez v. PEZA, 349 SCRA 240,
Jan. 16, 2001, 2nd Div. [De Leon])
142. Discuss the meaning of “just compensation” in
eminent domain proceedings. Does it include the
payment of “interest” and, if so, how is it to be
computed?
Held: 1. The constitutional limitation of “just
compensation” is considered to be the sum equivalent to the
market value of the property, broadly described to be the price
fixed by the seller in open market in the usual and ordinary
course of legal action and competition or the fair value of the
property as between one who receives, and one who desires to
sell, it fixed at the time of the actual taking by the government
(Manila Railway Co. v. Fabie, 17 Phil. 206). Thus, if property
is taken for public use before compensation is deposited with
the court having jurisdiction over the case, the final
compensation must include interests on its just value to be
computed from the time the property is taken to the time when
compensation is actually paid or deposited with the court
(Philippine Railway Co. v. Solon, 13 Phil. 34). In fine,
between the taking of the property and the actual payment,
legal interests accrue in order to place the owner in a position
as good as (but not better than) the position he was in before
the taking occurred (Commissioner of Public Highways v.
Burgos, 96 SCRA 831). (Republic of the Philippines v. The
Hon. Court of Appeals, G.R. No. 146587, July 2, 2002, 1st
Div. [Vitug])
2. We have ruled that the concept of just
compensation embraces not only the correct
determination of the amount to be paid to the owners of
the land, but also the payment of the land within a
reasonable time from its taking. Without prompt
payment, compensation cannot be considered “just”
inasmuch as the property owner is made to suffer the
consequences of being immediately deprived of his land
while being made to wait for a decade or more before
actually receiving the amount necessary to cope with his
loss (Land Bank of the Philippines v. Court of Appeals, 258
SCRA 404, 408-409 [1996] quoting Municipality of Makati
v. Court of Appeals, 190 SCRA 207, 213 [1990]). Payment
of just compensation should follow as a matter of right
immediately after the order of expropriation is issued.
Any delay in payment must be counted from said order.
However, the delay to constitute a violation of due
process must be unreasonable and inexcusable; it must
be deliberately done by a party in order to defeat the ends
of justice.
We find that respondent capriciously evaded its duty of
giving what is due to petitioner. In the case at bar, the
expropriation order was issued by the trial court in 1991.
The compromise agreement between the parties was
approved by the trial court in 1993. However, from 1993
up to the present, respondent has failed in its obligation
to pay petitioner to the prejudice of the latter.
Respondent cause damage to petitioner in making the
latter to expect that it had a good title to the property to
be swapped with Lot 1406-B; and meanwhile, respondent
has been reaping benefits from the lease or rental income
of the said expropriated lot. We cannot tolerate this
oppressive exercise of the power of eminent domain by
respondent. As we have ruled in Cosculluela v. Court of
Appeals (164 SCRA 393, 401 [1988]):
In the present case, the irrigation project was completed
and has been in operation since 1976. The project is
benefiting the farmers specifically and the community in
general. Obviously, petitioner’s land cannot be returned
to him. However, it is high time that the petitioner be
paid what has been due him eleven years ago. It is
arbitrary and capricious for a government agency to
initiate expropriation proceedings, seize a person’s
property, allow the judgment of the court to become final
and executory and then refuse to pay on the ground that
there was no appropriations for the property earlier taken
and profitably used. We condemn in the strongest
possible terms the cavalier attitude of government
officials who adopt such a despotic and irresponsible
stance.
(Estate of Salud Jimenez v. PEZA, 349 SCRA 240,
Jan. 16, 2001, 2nd Div. [De Leon])
143. When may the property owner be entitled to
the return of the expropriated property in eminent
domain cases?
Held: 1. In insisting on the return of the
expropriated property, respondents would exhort on the
pronouncement in Provincial Government of Sorsogon v. Vda.
De Villaroya (153 SCRA 291) where the unpaid landowners
were allowed the alternative remedy of recovery of the
property there in question. It might be borne in mind that the
case involved the municipal government of Sorsogon, to
which the power of eminent domain is not inherent, but
merely delegated and of limited application. The grant of the
power of eminent domain to local governments under
Republic Act No. 7160 (See Local Government Code of 1991)
cannot be understood as being the pervasive and all-
encompassing power vested in the legislative branch of
government. For local governments to be able to wield the
power, it must, by enabling law, be delegated to it by the
national legislature, but even then, this delegated power of
eminent domain is not, strictly speaking, a power of eminent,
but only of inferior, domain or only as broad or confined as
the real authority would want it to be (City of Manila v.
Chinese Cemetery of Manila, 40 Phil. 349).
Thus, in Valdehueza v. Republic (17 SCRA 107)
where the private landowners had remained unpaid ten years
after the termination of the expropriation proceedings, this
Court ruled –
“The points in dispute are whether such payment can still be
made and, if so, in what amount. Said lots have been the
subject of expropriation proceedings. By final and executory
judgment in said proceedings, they were condemned for public
use, as part of an airport, and ordered sold to the government.
X x x It follows that both by virtue of the judgment, long
final, in the expropriation suit, as well as the annotations upon
their title certificates, plaintiffs are not entitled to recover
possession of their expropriated lots – which are still devoted
to the public use for which they were expropriated – but only
to demand the fair market value of the same.
Said relief may be granted under plaintiffs’ prayer for: ‘such
other remedies, which may be deemed just and equitable
under the premises’.” (At p. 112)
The Court proceeded to reiterate its pronouncement in Alfonso
v. Pasay City (106 Phil. 1017) where the recovery of
possession of property taken for public use prayed for by the
unpaid landowner was denied even while no requisite
expropriation proceedings were first instituted. The
landowner was merely given the relief of recovering
compensation for his property computed at its market value at
the time it was taken and appropriated by the State.
The judgment rendered by the Bulacan RTC in 1979
on the expropriation proceedings provides not only for the
payment of just compensation to herein respondents but
likewise adjudges the property condemned in favor of
petitioner over which parties, as well as their privies, are
bound (Mines v. Canal Authority of the State [Fla] 467 So2d
989, 10 FLW 230). Petitioner has occupied, utilized and, for
all intents and purposes, exercised dominion over the property
pursuant to the judgment. The exercise of such rights vested
to it as the condemnee indeed has amounted to at least a
partial compliance or satisfaction of the 1979 judgment,
thereby preempting any claim of bar by prescription on
grounds of non-execution. In arguing for the return of their
property on the basis of non-payment, respondents ignore the
fact that the right of the expropriatory authority is far from that
of an unpaid seller in ordinary sales, to which the remedy of
rescission might perhaps apply. An in rem proceeding,
condemnation acts upon the property (Cadorette v. US CCA
[Mass] 988 F2d 215). After condemnation, the paramount
title is in the public under a new and independent title (Ibid.);
thus, by giving notice to all claimants to a disputed title,
condemnation proceedings provide a judicial process for
securing better title against all the world than may be obtained
by voluntary conveyance (Ibid.). (Republic of the Philippines
v. The Hon. Court of Appeals, G.R. No. 146587, July 2,
2002, 1st Div. [Vitug])
2. Though the respondent has committed a misdeed to
petitioner, we cannot, however, grant the petitioner’s
prayer for the return of the expropriated Lot No. 1406-B.
The Order of expropriation dated July 11, 1991, has long
become final and executory. Petitioner cited Provincial
Government of Sorsogon v. Rosa E. Vda. De Villaroya
(153 SCRA 291, 302 [1987]) to support its contention that
it is entitled to a return of the lot where this Court ruled
that “under ordinary circumstances, immediate return to
the owners of the unpaid property is the obvious remedy.”
However, the said statement was not the ruling in that
case. As in other cases where there was no prompt
payment by the government, this Court declared in
Sorsogon that “the Provincial Government of Sorsogon is
expected to immediately pay as directed. Should any
further delay be encountered, the trial court is directed to
seize any patrimonial property or cash savings of the
province in the amount necessary to implement this
decision.” However, this Court also stressed and declared
in that case that “in cases where land is taken for public
use, public interest, however, must be considered.”
(Estate of Salud Jimenez v. PEZA, 349 SCRA 240,
Jan. 16, 2001, 2nd Div. [De Leon])
The Power of Taxation
144. Can taxes be subject to off-setting or
compensation?
Held: Taxes cannot be subject to compensation for the
simple reason that the government and the taxpayer are
not creditors and debtors of each other. There is a
material distinction between a tax and debt. Debts are
due to the Government in its corporate capacity, while
taxes are due to the Government in its sovereign capacity.
It must be noted that a distinguishing feature of a tax is
that it is compulsory rather than a matter of bargain.
Hence, a tax does not depend upon the consent of the
taxpayer. If any taxpayer can defer the payment of taxes
by raising the defense that it still has a pending claim for
refund or credit, this would adversely affect the
government revenue system. A taxpayer cannot refuse
to pay his taxes when they fall due simply because he has
a claim against the government or that the collection of a
tax is contingent on the result of the lawsuit it filed against
the government. (Philex Mining Corporation v.
Commissioner of Internal Revenue, 294 SCRA 687,
Aug. 28, 1998 [Romero])
145. Under Article VI, Section 28, paragraph 3 of the
1987 Constitution, "[C]haritable institutions, churches and
parsonages or convents appurtenant thereto, mosques,
non-profit cemeteries, and all lands, buildings, and
improvements, actually, directly and exclusively used for
religious, charitable or educational purposes shall be
exempt from taxation." YMCA claims that the income
earned by its building leased to private entities and that
of its parking space is likewise covered by said exemption.
Resolve.
Held: The debates, interpellations and expressions of
opinion of the framers of the Constitution reveal their
intent that which, in turn, may have guided the people in
ratifying the Charter. Such intent must be effectuated.
Accordingly, Justice Hilario G. Davide, Jr., a former
constitutional commissioner, who is now a member of this
Court, stressed during the Concom debates that "x x x
what is exempted is not the institution itself x x x; those
exempted from real estate taxes are lands, buildings and
improvements actually, directly and exclusively used for
religious, charitable or educational purposes. Father
Joaquin G. Bernas, an eminent authority on the
Constitution and also a member of the Concom, adhered
to the same view that the exemption created by said
provision pertained only to property taxes.
In his treatise on taxation, Mr. Justice Jose C. Vitug
concurs, stating that "[t]he tax exemption covers property
taxes only." (Commissioner of Internal Revenue v.
CA, 298 SCRA 83, Oct. 14, 1998 [Panganiban])
146. Under Article XIV, Section 4, paragraph 3 of the
1987 Constitution, "[A]ll revenues and assets of non-
stock, non-profit educational institutions used actually,
directly, and exclusively for educational purposes shall be
exempt from taxes and duties." YMCA alleged that it "is a
non-profit educational institution whose revenues and
assets are used actually, directly and exclusively for
educational purposes so it is exempt from taxes on its
properties and income."
Held: We reiterate that private respondent is exempt
from the payment of property tax, but not income tax on
the rentals from its property. The bare allegation alone
that it is a non-stock, non-profit educational institution is
insufficient to justify its exemption from the payment of
income tax.
[L]aws allowing tax exemption are construed strictissimi
juris. Hence, for the YMCA to be granted the exemption
it claims under the abovecited provision, it must prove
with substantial evidence that (1) it falls under the
classification non-stock, non-profit educational institution;
and (2) the income it seeks to be exempted from taxation
is used actually, directly, and exclusively for educational
purposes. However, the Court notes that not a scintilla
of evidence was submitted by private respondent to prove
that it met the said requisites. (Commissioner of
Internal Revenue v. CA, 298 SCRA 83, Oct. 14,
1998 [Panganiban])
147. Is the YMCA an educational institution within the
purview of Article XIV, Section 4, par. 3 of the
Constitution?
Held: We rule that it is not. The term "educational
institution" or "institution of learning" has acquired a well-
known technical meaning, of which the members of the
Constitutional Commission are deemed cognizant. Under
the Education Act of 1982, such term refers to schools.
The school system is synonymous with formal education,
which "refers to the hierarchically structured and
chronologically graded learnings organized and provided
by the formal school system and for which certification is
required in order for the learner to progress through the
grades or move to the higher levels." The Court has
examined the "Amended Articles of Incorporation" and
"By-Laws" of the YMCA, but found nothing in them that
even hints that it is a school or an educational institution.
Furthermore, under the Education Act of 1982, even non-
formal education is understood to be school-based and
"private auspices such as foundations and civic-spirited
organizations" are ruled out. It is settled that the term
"educational institution," when used in laws granting tax
exemptions, refers to a "x x x school seminary, college or
educational establishment x x x." (84 CJS 566) Therefore,
the private respondent cannot be deemed one of the
educational institutions covered by the constitutional
provision under consideration. (Commissioner of
Internal Revenue v. CA, 298 SCRA 83, Oct. 14,
1998 [Panganiban])
148. May the PCGG validly commit to exempt from all
forms of taxes the properties to be retained by the Marcos
heirs in a Compromise Agreement between the former
and the latter?
Held: The power to tax and to grant exemptions is
vested in the Congress and, to a certain extent, in the
local legislative bodies. Section 28(4), Article VI of the
Constitution, specifically provides: “No law granting any
tax exemption shall be passed without the concurrence of
a majority of all the members of the Congress.” The
PCGG has absolutely no power to grant tax exemptions,
even under the cover of its authority to compromise ill-
gotten wealth cases.
Even granting that Congress enacts a law exempting the
Marcoses from paying taxes on their properties, such law
will definitely not pass the test of the equal protection
clause under the Bill of Rights. Any special grant of tax
exemption in favor only of the Marcos heirs will constitute
class legislation. It will also violate the constitutional rule
that “taxation shall be uniform and equitable .” (Chavez
v. PCGG, 299 SCRA 744, Dec. 9, 1998
[Panganiban])
149. Discuss the purpose of tax treaties?
Held: The RP-US Tax Treaty is just one of a number of
bilateral treaties which the Philippines has entered into for
the avoidance of double taxation. The purpose of these
international agreements is to reconcile the national fiscal
legislations of the contracting parties in order to help the
taxpayer avoid simultaneous taxation in two different
jurisdictions. More precisely, the tax conventions are
drafted with a view towards the elimination of
international juridical double taxation x x x.
(Commissioner of Internal Revenue v. S.C.
Johnson and Son, Inc., 309 SCRA 87, 101-102,
June 25, 1999, 3rd Div. [Gonzaga-Reyes])
150. What is "international juridical double taxation"?
Held: It is defined as the imposition of comparable taxes
in two or more states on the same taxpayer in respect of
the same subject matter and for identical periods.
(Commissioner of Internal Revenue v. S.C.
Johnson and Son, Inc., 309 SCRA 87, 102, June 25,
1999)
151. What is the rationale for doing away with
international juridical double taxation? What are the
methods resorted to by tax treaties to eliminate double
taxation?
Held: The apparent rationale for doing away with double
taxation is to encourage the free flow of goods and
services and the movement of capital, technology and
persons between countries, conditions deemed vital in
creating robust and dynamic economies. Foreign
investments will only thrive in a fairly predictable and
reasonable international investment climate and the
protection against double taxation is crucial in creating
such a climate.
Double taxation usually takes place when a person is
resident of a contracting state and derives income from,
or owns capital in, the other contracting state and both
states impose tax on that income or capital. In order to
eliminate double taxation, a tax treaty resorts to several
methods. First, it sets out the respective rights to tax of
the state of source or situs and of the state of residence
with regard to certain classes of income or capital. In
some cases, an exclusive right to tax is conferred on one
of the contracting states; however, for other items of
income or capital, both states are given the right to tax,
although the amount of tax that may be imposed by the
state of source is limited.
The second method for the elimination of double taxation
applies whenever the state of source is given a full or
limited right to tax together with the state of residence.
In this case, the treaties make it incumbent upon the state
of residence to allow relief in order to avoid double
taxation. There are two methods of relief - the exemption
method and the credit method. In the exemption
method, the income or capital which is taxable in the state
of source or situs is exempted in the state of residence,
although in some instances it may be taken into account
in determining the rate of tax applicable to the taxpayer's
remaining income or capital. On the other hand, in the
credit method, although the income or capital which is
taxed in the state of source is still taxable in the state of
residence, the tax paid in the former is credited against
the tax levied in the latter. The basic difference between
the two methods is that in the exemption method, the
focus is on the income or capital itself, whereas the credit
method focuses upon the tax. (Commissioner of
Internal Revenue v. S.C. Johnson and Son, Inc.,
309 SCRA 87, 102-103, June 25, 1999)
152. What is the rationale for reducing the tax rate in
negotiating tax treaties?
Held: In negotiating tax treaties, the underlying rationale
for reducing the tax rate is that the Philippines will give
up a part of the tax in the expectation that the tax given
up for this particular investment is not taxed by the other
country. (Commissioner of Internal Revenue v. S.C.
Johnson and Son, Inc., 309 SCRA 87, 103, June 25,
1999)
B. THE BILL OF RIGHTS
The Due Process Clause
153. Discuss the Due Process Clause. Distinguish
substantive due process from procedural due process.
Held: Section 1 of the Bill of Rights lays down what is
known as the "due process clause" of the Constitution.
In order to fall within the aegis of this provision, two
conditions must concur, namely, that there is a
deprivation and that such deprivation is done without
proper observance of due process. When one speaks of
due process of law, however, a distinction must be made
between matters of procedure and matters of substance.
In essence, procedural due process "refers to the method
or manner by which the law is enforced," while
substantive due process "requires that the law itself, not
merely the procedures by which the law would be
enforced, is fair, reasonable, and just." (Corona v.
United Harbor Pilots Association of the Phils., 283
SCRA 31, Dec. 12, 1997 [Romero])
154. Respondents United Harbor Pilots Association of
the Philippines argue that due process was not observed
in the adoption of PPA-AO No. 04-92 which provides that:
“(a)ll existing regular appointments which have been
previously issued by the Bureau of Customs or the PPA
shall remain valid up to 31 December 1992 only,” and
“(a)ll appointments to harbor pilot positions in all pilotage
districts shall, henceforth, be only for a term of one (1)
year from date of effectivity subject to renewal or
cancellation by the Philippine Ports Authority after
conduct of a rigid evaluation of performance,” allegedly
because no hearing was conducted whereby “relevant
government agencies” and the harbor pilots themselves
could ventilate their views. They also contended that the
sole and exclusive right to the exercise of harbor pilotage
by pilots has become vested and can only be “withdrawn
or shortened” by observing the constitutional mandate of
due process of law.
Held: They are obviously referring to the procedural
aspect of the enactment. Fortunately, the Court has
maintained a clear position in this regard, a stance it has
stressed in the recent case of Lumiqued v. Hon. Exevea
(G.R. No. 117565, November 18, 1997), where it declared
that “(a)s long as a party was given the opportunity to
defend his interests in due course, he cannot be said to
have been denied due process of law, for this opportunity
to be heard is the very essence of due process. Moreover,
this constitutional mandate is deemed satisfied if a person
is granted an opportunity to seek reconsideration of the
action or ruling complained of.”
In the case at bar, respondents questioned PPA-AO No.
04-92 no less than four times before the matter was
finally elevated to this Tribunal. Their arguments on this
score, however, failed to persuade. X x x
Neither does the fact that the pilots themselves were not
consulted in any way taint the validity of the
administrative order. As a general rule, notice and
hearing, as the fundamental requirements of procedural
due process, are essential only when an administrative
body exercises its quasi-judicial function. In the
performance of its executive or legislative functions, such
as issuing rules and regulations, an administrative body
need not comply with the requirements of notice and
hearing.
Upon the other hand, it is also contended that the sole
and exclusive right to the exercise of harbor pilotage by
pilots is a settled issue. Respondents aver that said right
has become vested and can only be “withdrawn or
shortened” by observing the constitutional mandate of
due process of law. Their argument has thus shifted from
the procedural to one of substance. It is here where PPA-
AO No. 04-92 fails to meet the condition set by the
organic law.
Pilotage, just like other professions, may be practiced only
by duly licensed individuals. Licensure is “the granting of
license especially to practice a profession.” It is also “the
system of granting licenses (as for professional practice)
in accordance with established standards.” A license is a
right or permission granted by some competent authority
to carry on a business or do an act which, without such
license, would be illegal.
Before harbor pilots can earn a license to practice their
profession, they literally have to pass through the
proverbial eye of a needle by taking, not one but five
examinations, each followed by actual training and
practice. X x x
Their license is granted in the form of an appointment
which allows them to engage in pilotage until they retire
at the age of 70 years. This is a vested right. Under the
terms of PPA-AO No. 04-92, “[a]ll existing regular
appointments which have been previously issued by the
Bureau of Customs or the PPA shall remain valid up to 31
December 1992 only,” and “(a)ll appointments to harbor
pilot positions in all pilotage districts shall, henceforth, be
only for a term of one (1) year from date of effectivity
subject to renewal or cancellation by the Authority after
conduct of a rigid evaluation of performance.”
It is readily apparent that PPA-AO No. 04-92 unduly
restricts the right of harbor pilots to enjoy their profession
before their compulsory retirement. In the past, they
enjoyed a measure of security knowing that after passing
five examinations and undergoing years of on-the-job
training, they would have a license which they could use
until their retirement, unless sooner revoked by the PPA
for mental or physical unfitness. Under the new issuance,
they have to contend with an annual cancellation of their
license which can be temporary or permanent depending
on the outcome of their performance evaluation. Veteran
pilots and neophytes alike are suddenly confronted with
one-year terms which ipso facto expire at the end of that
period. Renewal of their license is now dependent on a
“rigid evaluation of performance” which is conducted only
after the license has already been cancelled. Hence, the
use of the term “renewal.” It is this pre-evaluation
cancellation which primarily makes PPA-AO No. 04-92
unreasonable and constitutionally infirm. In a real sense,
it is a deprivation of property without due process of law.
(Corona v. United Harbor Pilots Association of the
Phils., 283 SCRA 31, December 12, 1997
[Romero])
155. Does the due process clause encompass the right
to be assisted by counsel during an administrative
inquiry?
Held: The right to counsel, which cannot be waived
unless the waiver is in writing and in the presence of
counsel, is a right afforded a suspect or an accused during
custodial investigation. It is not an absolute right and
may, thus, be invoked or rejected in a criminal proceeding
and, with more reason, in an administrative inquiry. In
the case at bar, petitioners invoke the right of an accused
in criminal proceedings to have competent and
independent counsel of his own choice. Lumiqued,
however, was not accused of any crime in the
proceedings below. The investigation conducted by the
committee x x x was for the sole purpose of determining
if he could be held administratively liable under the law
for the complaints filed against him. x x x As such, the
hearing conducted by the investigating committee was
not part of a criminal prosecution. X x x
While investigations conducted by an administrative body
may at times be akin to a criminal proceeding, the fact
remains that under existing laws, a party in an
administrative inquiry may or may not be assisted by
counsel, irrespective of the nature of the charges and of
the respondent's capacity to represent himself, and no
duty rests on such a body to furnish the person being
investigated with counsel. In an administrative
proceeding x x x a respondent x x x has the option of
engaging the services of counsel or not. x x x Thus, the
right to counsel is not imperative in administrative
investigations because such inquiries are conducted
merely to determine whether there are facts that merit
disciplinary measures against erring public officers and
employees, with the purpose of maintaining the dignity of
government service.
The right to counsel is not indispensable to due process
unless required by the Constitution or the law. X x x.
(Lumiqued v. Exevea, 282 SCRA 125, Nov. 18,
1997 [Romero])
156. Does an extraditee have the right to notice and
hearing during the evaluation stage of an extradition
proceeding?
Held: Considering that in the case at bar, the extradition
proceeding is only at its evaluation stage, the nature of
the right being claimed by the private respondent is
nebulous and the degree of prejudice he will allegedly
suffer is weak, we accord greater weight to the interests
espoused by the government thru the petitioner Secretary
of Justice. X x x
In tilting the balance in favor of the interests of the State,
the Court stresses that it is not ruling that the private
respondent has no right to due process at all throughout
the length and breadth of the extradition proceedings.
Procedural due process requires a determination of what
process is due, when it is due, and the degree of what is
due. Stated otherwise, a prior determination should be
made as to whether procedural protections are at all due
and when they are due, which in turn depends on the
extent to which an individual will be "condemned to suffer
grievous loss." We have explained why an extraditee has
no right to notice and hearing during the evaluation stage
of the extradition process. As aforesaid, P.D. No. 1069
which implements the RP-US Extradition Treaty affords an
extraditee sufficient opportunity to meet the evidence
against him once the petition is filed in court. The time
for the extraditee to know the basis of the request for his
extradition is merely moved to the filing in court of the
formal petition for extradition. The extraditee's right to
know is momentarily withheld during the evaluation stage
of the extradition process to accommodate the more
compelling interest of the State to prevent escape of
potential extraditees which can be precipitated by
premature information of the basis of the request for his
extradition. No less compelling at that stage of the
extradition proceedings is the need to be more deferential
to the judgment of a co-equal branch of the government,
the Executive, which has been endowed by our
Constitution with greater power over matters involving
our foreign relations. Needless to state, this balance of
interests is not a static but a moving balance which can
be adjusted as the extradition process moves from the
administrative stage to the judicial stage and to the
execution stage depending on factors that will come into
play. In sum, we rule that the temporary hold on private
respondent's privilege of notice and hearing is a soft
restraint on his right to due process which will not deprive
him of fundamental fairness should he decide to resist the
request for his extradition to the United States. There is
no denial of due process as long as fundamental fairness
is assured a party. (Secretary of Justice v. Hon.
Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000,
En Banc [Puno])
157. Will Mark Jimenez’s detention prior to the
conclusion of the extradition proceedings not amount to
a violation of his right to due process?
Held: Contrary to his contention, his detention prior to
the conclusion of the extradition proceedings does not
amount to a violation of his right to due process. We
iterate the familiar doctrine that the essence of due
process is the opportunity to be heard (Garcia v. NLRC,
GR No. 110494, November 18, 1996; Paat v. Court of
Appeals, January 10, 1997) but, at the same time, point
out that the doctrine does not always call for a prior
opportunity to be heard (See Central Bank of the
Philippines v. Court of Appeals, 220 SCRA 536, March 20,
1993). Where the circumstances – such as those present
in an extradition case – call for it, a subsequent
opportunity to be heard is enough (Ibid. See also
Busuego v. Court of Appeals, 304 SCRA 473, March 11,
1999). In the present case, respondent will be given full
opportunity to be heard subsequently, when the
extradition court hears the Petition for Extradition.
Hence, there is no violation of his right to due process and
fundamental fairness.
Contrary to the contention of Jimenez, we find no
arbitrariness, either, in the immediate deprivation of his
liberty prior to his being heard. That his arrest and
detention will not be arbitrary is sufficiently ensured by
(1) the DOJ’s filing in court the Petition with its supporting
documents after a determination that the extradition
request meets the requirements of the law and the
relevant treaty; (2) the extradition judge’s independent
prima facie determination that his arrest will best serve
the ends of justice before the issuance of a warrant for
his arrest; and (3) his opportunity, once he is under the
court’s custody, to apply for bail as an exception to the
no-initial-bail rule.
It is also worth noting that before the US
government requested the extradition of respondent,
proceedings had already been conducted in that country.
But because he left the jurisdiction of the requesting state
before those proceedings could be completed, it was
hindered from continuing with the due processes
prescribed under its laws. His invocation of due process
now had thus become hollow. He already had that
opportunity in the requesting state; yet, instead of taking
it, he ran away.
In this light, would it be proper and just for the
government to increase the risk of violating its treaty
obligations in order to accord Respondent Jimenez his
personal liberty in the span of time that it takes to resolve
the Petition for Extradition? His supposed immediate
deprivation of liberty without due process that he had
previously shunned pales against the government’s
interest in fulfilling its Extradition Treaty obligations and
in cooperating with the world community in the
suppression of crime. Indeed, “[c]onstitutional liberties
do not exist in a vacuum; the due process rights accorded
to individuals must be carefully balanced against exigent
and palpable government interest.” (Coquia, “On the
Implementation of the US-RP Extradition Treaty,” supra;
citing Kelso v. US Department of State, 13 F Supp. 291
[DDC 1998])
Too, we cannot allow our country to be a haven
for fugitives, cowards and weaklings who, instead of
facing the consequences of their actions, choose to run
and hide. Hence, it would not be good policy to
increase the risk of violating our treaty obligations if,
through overprotection or excessively liberal treatment,
persons sought to be extradited are able to evade arrest
or escape from our custody. In the absence of any
provision – in the Constitution, the law or the treaty –
expressly guaranteeing the right to bail in extradition
proceedings, adopting the practice of not granting them
bail, as a general rule, would be a step towards
deterring fugitives from coming to the Philippines to hide
from or evade their prosecutors.
The denial of bail as a matter of course in
extradition cases falls into place with and gives life to
Article 14 (It states: “If the person sought consents in
writing to surrender to the Requesting State, the
Requested State may surrender the person as
expeditiously as possible without further proceedings.”)
of the Treaty, since this practice would encourage the
accused to voluntarily surrender to the requesting state
to cut short their detention here. Likewise, their
detention pending the resolution of extradition
proceedings would fall into place with the emphasis of
the Extradition Law on the summary nature of
extradition cases and the need for their speedy
disposition. (Government of the United States of
America v. Hon. Guillermo Purganan, G.R. No.
148571, Sept. 24, 2002, En Banc [Panganiban])
158. Is respondent in an Extradition Proceeding
entitled to notice and hearing before the issuance of a
warrant of arrest?
Held: Both parties cite Section 6 of PD 1069 in support
of their arguments. X x x
Does this provision sanction RTC Judge
Purganan’s act of immediately setting for hearing the
issuance of a warrant of arrest? We rule in the negative.
1. On the Basis of the Extradition Law
It is significant to note that Section 6 of PD 1069,
our Extradition Law, uses the word “immediate” to qualify
the arrest of the accused. This qualification would be
rendered nugatory by setting for hearing the issuance of
the arrest warrant. Hearing entails sending notices to the
opposing parties, receiving facts and arguments from
them, and giving them time to prepare and present such
facts and arguments. Arrest subsequent to a hearing can
no longer be considered “immediate.” The law could not
have intended the word as a mere superfluity but, on the
whole, as a means of impairing a sense of urgency and
swiftness in the determination of whether a warrant of
arrest should be issued.
By using the phrase “if it appears,” the law further
conveys that accuracy is not as important as speed at
such early stage. The trial court is not expected to make
an exhaustive determination to ferret out the true and
actual situation, immediately upon the filing of the
petition. From the knowledge and the material then
available to it, the court is expected merely to get a good
first impression – a prima facie finding – sufficient to make
a speedy initial determination as regards the arrest and
detention of the accused.
Xxx
We stress that the prima facie existence of
probable cause for hearing the petition and, a priori, for
issuing an arrest warrant was already evident from the
Petition itself and its supporting documents. Hence, after
having already determined therefrom that a prima facie
finding did exist, respondent judge gravely abused his
discretion when he set the matter for hearing upon
motion of Jimenez.
Moreover, the law specifies that the court sets a
hearing upon receipt of the answer or upon failure of the
accused to answer after receiving the summons. In
connection with the matter of immediate arrest, however,
the word “hearing” is notably absent from the provision.
Evidently, had the holding of a hearing at that stage been
intended, the law could have easily so provided. It also
bears emphasizing at this point that extradition
proceedings are summary (See Sec. 9, PD 1069) in
nature. Hence, the silence of the Law and the Treaty
leans to the more reasonable interpretation that there is
no intention to punctuate with a hearing every little step
in the entire proceedings.
Xxx
Verily x x x sending to persons sought to be
extradited a notice of the request for their arrest and
setting it for hearing at some future date would give them
ample opportunity to prepare and execute an escape.
Neither the Treaty nor the Law could have intended that
consequence, for the very purpose of both would have
been defeated by the escape of the accused from the
requested state.
2. On the Basis of the Constitution
Even Section 2 of Article III of our Constitution, which is
invoked by Jimenez, does not require a notice or a hearing
before the issuance of a warrant of arrest. X x x
To determine probable cause for the issuance of arrest
warrants, the Constitution itself requires only the
examination – under oath or affirmation – of complainants
and the witnesses they may produce. There is no
requirement to notify and hear the accused before the
issuance of warrants of arrest.
In Ho v. People (280 SCRA 365, October 9, 1997) and in
all the cases cited therein, never was a judge required to
go to the extent of conducting a hearing just for the
purpose of personally determining probable cause for the
issuance of a warrant of arrest. All we required was that
the “judge must have sufficient supporting documents
upon which to make his independent judgment, or at the
very least, upon which to verify the findings of the
prosecutor as to the existence of probable cause.”
In Webb v. De Leon (247 SCRA 652, 680, per Puno, J.),
the Court categorically stated that a judge was not
supposed to conduct a hearing before issuing a warrant
of arrest x x x.
At most, in cases of clear insufficiency of evidence on
record, judges merely further examine complainants and
their witnesses (Ibid; citing Allado v. Diokno, 233 SCRA
192, May 5, 1994). In the present case, validating the act
of respondent judge and instituting the practice of hearing
the accused and his witnesses at this early stage would
be discordant with the rationale for the entire system. If
the accused were allowed to be heard and necessarily to
present evidence during the prima facie determination for
the issuance of a warrant of arrest, what would stop him
from presenting his entire plethora of defenses at this
stage – if he so desires – in his effort to negate a prima
facie finding? Such a procedure could convert the
determination of a prima facie case into a full-blown trial
of the entire proceedings and possibly make trial of the
main case superfluous. This scenario is also anathema to
the summary nature of extraditions. (Government of
the United States of America v. Hon. Guillermo
Purganan, G.R. No. 148571, Sept. 24, 2002, En
Banc [Panganiban])
The Equal Protection Clause
159. Explain and discuss the equal protection of the
law clause.
Held: 1. The equal protection of the law is embraced in
the concept of due process, as every unfair discrimination
offends the requirements of justice and fair play. It has
nonetheless been embodied in a separate clause in Article
III, Sec. 1, of the Constitution to provide for a more
specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general
may be challenged on the basis of the due process clause.
But if the particular act assailed partakes of an
unwarranted partiality or prejudice, the sharper weapon
to cut it down is the equal protection clause.
According to a long line of decisions, equal protection
simply requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and
responsibilities imposed. Similar subjects, in other words,
should not be treated differently, so as to give undue
favor to some and unjustly discriminate against others.
The equal protection clause does not require the universal
application of the laws on all persons or things without
distinction. This might in fact sometimes result in unequal
protection, as where, for example, a law prohibiting
mature books to all persons, regardless of age, would
benefit the morals of the youth but violate the liberty of
adults. What the clause requires is equality among equals
as determined according to a valid classification. By
classification is meant the grouping of persons or things
similar to each other in certain particulars and different
from all others in these same particulars. (Philippine
Judges Association v. Prado, 227 SCRA 703, 711-
712, Nov. 11, 1993, En Banc [Cruz])
2. The equal protection clause exists to prevent undue
favor or privilege. It is intended to eliminate
discrimination and oppression based on inequality.
Recognizing the existence of real difference among men,
the equal protection clause does not demand absolute
equality. It merely requires that all persons shall be
treated alike, under like circumstances and conditions
both as to the privileges conferred and liabilities enforced .
Thus, the equal protection clause does not absolutely
forbid classifications x x x. If the classification is based
on real and substantial differences; is germane to the
purpose of the law; applies to all members of the same
class; and applies to current as well as future conditions,
the classification may not be impugned as violating the
Constitution's equal protection guarantee. A distinction
based on real and reasonable considerations related to a
proper legislative purpose x x x is neither unreasonable,
capricious nor unfounded. (Himagan v. People, 237
SCRA 538, Oct. 7, 1994, En Banc [Kapunan])
160. Congress enacted R.A. No. 8189 which provides,
in Section 44 thereof, that "No Election Officer shall hold
office in a particular city or municipality for more than four
(4) years. Any election officer who, either at the time of
the approval of this Act or subsequent thereto, has served
for at least four (4) years in a particular city or
municipality shall automatically be reassigned by the
Commission to a new station outside the original
congressional district." Petitioners, who are City and
Municipal Election Officers, theorize that Section 44 of RA
8189 is violative of the "equal protection clause" of the
1987 Constitution because it singles out the City and
Municipal Election Officers of the COMELEC as prohibited
from holding office in the same city or municipality for
more than four (4) years. They maintain that there is no
substantial distinction between them and other COMELEC
officials, and therefore, there is no valid classification to
justify the objective of the provision of law under attack.
Resolve.
Held: The Court is not persuaded by petitioners'
arguments. The "equal protection clause" of the 1987
Constitution permits a valid classification under the
following conditions:
1) The classification must rest on substantial
distinction;
2) The classification must be germane to the
purpose of the law;
3) The classification must not be limited to
existing conditions only; and
4) The classification must apply equally to all
members of the same class.
After a careful study, the ineluctable conclusion is that the
classification under Section 44 of RA 8189 satisfies the
aforestated requirements.
The singling out of election officers in order to "ensure
the impartiality of election officials by preventing them
from developing familiarity with the people of their place
of assignment" does not violate the equal protection
clause of the Constitution.
In Lutz v. Araneta (98 Phil. 148, 153 [1955]), it was held
that "the legislature is not required by the Constitution to
adhere to a policy of 'all or none'". This is so for
underinclusiveness is not an argument against a valid
classification. It may be true that all other officers of
COMELEC referred to by petitioners are exposed to the
same evils sought to be addressed by the statute.
However, in this case, it can be discerned that the
legislature thought the noble purpose of the law would be
sufficiently served by breaking an important link in the
chain of corruption than by breaking up each and every
link thereof. Verily, under Section 3(n) of RA 8189,
election officers are the highest officials or authorized
representatives of the COMELEC in a city or municipality.
It is safe to say that without the complicity of such
officials, large-scale anomalies in the registration of voters
can hardly be carried out. (Agripino A. De Guzman, Jr.,
et al. v. COMELEC (G.R. No. 129118, July 19, 2000,
en Banc [Purisima])
161. Appellant, who was charged with Illegal
Recruitment in the RTC of Zamboanga City, invokes the
equal protection clause in her defense. She points out
that although the evidence purportedly shows that
Jasmine Alejandro handed out application forms and
even received Lourdes Modesto’s payment, appellant
was the only one criminally charged. Alejandro, on the
other hand, remained scot-free. From this, appellant
concludes that the prosecution discriminated against her
on grounds of regional origins. Appellant is a Cebuana
while Alejandro is a Zamboanguena, and the alleged
crime took place in Zamboanga City.
Held: The argument has no merit.
The prosecution of one guilty while others equally guilty
are not prosecuted, however, is not, by itself, a denial of
the equal protection of the laws (Application of Finn, 356
P.2d 685 [1960]). Where the official action purports to
be in conformity to the statutory classification, an
erroneous or mistaken performance of the statutory
duty, although a violation of the statute, is not without
more a denial of the equal protection of the laws
(Snowden v. Hughes, 321 US 1, 88 L Ed 497, 64 S Ct
397 [1943]). The unlawful administration by officers of
a statute fair on its face, resulting in its unequal
application to those who are entitled to be treated alike,
is not a denial of equal protection, unless there is shown
to be present in it an element of intentional or
purposeful discrimination. This may appear on the face
of the action taken with respect to a particular class or
person, or it may only be shown by extrinsic evidence
showing a discriminatory design over another not to be
inferred from the action itself. But a discriminatory
purpose is not presumed, there must be a showing of
“clear and intentional discrimination.” (Ibid.) Appellant
has failed to show that, in charging appellant in court,
that there was a “clear and intentional discrimination” on
the part of the prosecuting officials.
The discretion of who to prosecute depends on the
prosecution’s sound assessment whether the evidence
before it can justify a reasonable belief that a person
has committed an offense (Tan, Jr. v. Sandiganbayan
[Third Division], 292 SCRA 452 [1998]). The
presumption is that the prosecuting officers regularly
performed their duties (Rules of Court, Rule 131, Sec. 5
[m]), and this presumption can be overcome only by
proof to the contrary, not by mere speculation. Indeed,
appellant has not presented any evidence to overcome
this presumption. The mere allegation that appellant, a
Cebuana, was charged with the commission of a crime,
while a Zamboanguena, the guilty party in appellant’s
eyes, was not, is insufficient to support a conclusion that
the prosecution officers denied appellant equal
protection of the laws.
There is also common sense practicality in sustaining
appellant’s prosecution.
While all persons accused of crime are to be treated on
a basis of equality before the law, it does not follow that
they are to be protected in the commission of crime. It
would be unconscionable, for instance, to excuse a
defendant guilty of murder because others have
murdered with impunity. The remedy for unequal
enforcement of the law in such instances does not lie in
the exoneration of the guilty at the expense of society x
x x. Protection of the law will be extended to all persons
equally in the pursuit of their lawful occupations, but no
person has the right to demand protection of the law in
the commission of a crime (People v. Montgomery, 117
P.2d 437 [1941]).
Likewise,
[i]f the failure of prosecutors to enforce the criminal
laws as to some persons should be converted into a
defense for others charged with crime, the result would
be that the trial of the district attorney for nonfeasance
would become an issue in the trial of many persons
charged with heinous crimes and the enforcement of law
would suffer a complete breakdown (State v. Hicks, 325
P.2d 794 [1958]).
(People v. Dela Piedra, 350 SCRA 163, Jan. 24,
2001, 1st Div. [Kapunan])
162. Are there substantial distinctions between print
media and broadcast media to justify the requirement for
the latter to give free airtime to be used by the Comelec
to inform the public of qualifications and program of
government of candidates and political parties during the
campaign period? Discuss.
Held: There are important differences in the
characteristics of the two media which justify their
differential treatment for free speech purposes. Because
of the physical limitations of the broadcast spectrum, the
government must, of necessity, allocate broadcast
frequencies to those wishing to use them. There is no
similar justification for government allocation and
regulation of the print media.
In the allocation of limited resources, relevant conditions
may validly be imposed on the grantees or licensees. The
reason for this is that the government spends public funds
for the allocation and regulation of the broadcast industry,
which it does not do in the case of print media. To require
radio and television broadcast industry to provide free
airtime for the Comelec Time is a fair exchange for what
the industry gets.
From another point of view, the SC has also held that
because of the unique and pervasive influence of the
broadcast media, “[n]ecessarily x x x the freedom of
television and radio broadcasting is somewhat lesser in
scope than the freedom accorded to newspaper and print
media.” (TELEBAP, Inc. v. COMELEC, 289 SCRA 337,
April 21, 1998 [Mendoza])
163. Does the death penalty law (R.A. No. 7659)
violate the equal protection clause considering that, in
effect, it punishes only people who are poor, uneducated,
and jobless?
Held: R.A. No. 7659 specifically provides that “[T]he
death penalty shall be imposed if the crime of rape is
committed x x x when the victim is a religious or a child
below seven (7) years old.” Apparently, the death penalty
law makes no distinction. It applies to all persons and to
all classes of persons – rich or poor, educated or
uneducated, religious or non-religious. No particular
person or classes of persons are identified by the law
against whom the death penalty shall be exclusively
imposed. The law punishes with death a person who shall
commit rape against a child below seven years of age.
Thus, the perpetration of rape against a 5-year old girl
does not absolve or exempt an accused from the
imposition of the death penalty by the fact that he is poor,
uneducated, jobless, and lacks catechetical instruction.
To hold otherwise will not eliminate but promote
inequalities.
In Cecilleville Realty and Service Corporation v. CA, 278
SCRA 819 [1997]), the SC clarified that compassion for
the poor is an imperative of every humane society but
only when the recipient is not a rascal claiming an
undeserved privilege. (People v. Jimmy Mijano y
Tamora, G.R. No. 129112, July 23, 1999, En Banc
[Per Curiam])
164. The International School Alliance of Educators
(ISAE) questioned the point-of-hire classification
employed by International School, Inc. to justify
distinction in salary rates between foreign-hires and local-
hires, i.e., salary rates of foreign-hires are higher by 25%
than their local counterparts, as discriminatory and,
therefore, violates the equal protection clause. The
International School contended that this is necessary in
order to entice foreign-hires to leave their domicile and
work here. Resolve.
Held: That public policy abhors inequality and
discrimination is beyond contention. Our Constitution and
laws reflect the policy against these evils. X x x
International law, which springs from general principles
of law, likewise proscribes discrimination x x x. The
Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights, the
International Convention on the Elimination of All Forms
of Racial Discrimination, the Convention against
Discrimination in Education, the Convention (No. 111)
Concerning Discrimination in Respect of Employment and
Occupation - all embody the general principle against
discrimination, the very antithesis of fairness and justice.
The Philippines, through its Constitution, has incorporated
this principle as part of its national laws.
[I]t would be an affront to both the spirit and letter of
these provisions if the State, in spite of its primordial
obligation to promote and ensure equal employment
opportunities, closes its eyes to unequal and
discriminatory terms and conditions of employment x x x.
Discrimination, particularly in terms of wages, is frowned
upon by the Labor Code. Article 135, for example,
prohibits and penalizes the payment of lesser
compensation to a female employee as against a male
employee for work of equal value. Article 248 declares it
an unfair labor practice for an employer to discriminate in
regards to wages in order to encourage or discourage
membership in any labor organization. X x x
The foregoing provisions impregnably institutionalize in
this jurisdiction the long honored legal truism of "Equal
pay for equal work." Persons who work with substantially
equal qualifications, skill, effort and responsibility, under
similar conditions, should be paid similar salaries. This
rule applies to the School (International School, Inc.), its
"international character" notwithstanding.
The School contends that petitioner has not adduced
evidence that local-hires perform work equal to that of
foreign-hires. The Court finds this argument a little
cavalier. If an employer accords employees the same
position and rank, the presumption is that these
employees perform equal work. This presumption is
borne by logic and human experience. If the employer
pays one employee less than the rest, it is not for that
employee to explain why he receives less or why the
others receive more. That would be adding insult to
injury. The employer has discriminated against that
employee; it is for the employer to explain why the
employee is treated unfairly.
The employer in this case failed to discharge this burden.
There is no evidence here that foreign-hires perform 25%
more efficiently or effectively than the local-hires. Both
groups have similar functions and responsibilities, which
they perform under similar working conditions.
The School cannot invoke the need to entice foreign-hires
to leave their domicile to rationalize the distinction in
salary rates without violating the principle of equal work
for equal pay.
Xxx
While we recognize the need of the School to attract
foreign-hires, salaries should not be used as an
enticement to the prejudice of local-hires. The local-hires
perform the same services as foreign-hires and they
ought to be paid the same salaries as the latter. For the
same reason, the "dislocation factor" and the foreign-
hires' limited tenure also cannot serve as valid bases for
the distinction in salary rates. The dislocation factor and
limited tenure affecting foreign-hires are adequately
compensated by certain benefits accorded them which
are not enjoyed by local-hires, such as housing,
transportation, shipping costs, taxes and home leave
travel allowances.
The Constitution enjoins the State to "protect the rights
of workers and promote their welfare", "to afford labor
full protection." The State, therefore, has the right and
duty to regulate the relations between labor and capital .
These relations are not merely contractual but are so
impressed with public interest that labor contracts,
collective bargaining agreements included, must yield to
the common good. Should such contracts contain
stipulations that are contrary to public policy, courts will
not hesitate to strike down these stipulations.
In this case, we find the point-of-hire classification
employed by respondent School to justify the distinction
in the salary rates of foreign-hires and local-hires to be an
invalid classification. There is no reasonable distinction
between the services rendered by foreign-hires and local-
hires. The practice of the School of according higher
salaries to foreign-hires contravenes public policy and,
certainly, does not deserve the sympathy of this Court.
(International School Alliance of Educators (ISAE)
v. Hon. Leonardo A. Quisumbing, G.R. No. 128845,
June 1, 2000, 1st Div. [Kapunan])
165. Accused-appellant Romeo G. Jalosjos filed a
motion before the Court asking that he be allowed to fully
discharge the duties of a Congressman, including
attendance at legislative sessions and committee
meetings despite his having been convicted in the first
instance of a non-bailable offense. Does being an elective
official result in a substantial distinction that allows
different treatment? Is being a Congressman a
substantial differentiation which removes the accused-
appellant as a prisoner from the same class as all persons
validly confined under law?
Held: In the ultimate analysis, the issue before us boils
down to a question of constitutional equal protection.
Xxx
The performance of legitimate and even essential duties
by public officers has never been an excuse to free a
person validly in prison. The duties imposed by the
“mandate of the people” are multifarious. The accused-
appellant asserts that the duty to legislate ranks highest
in the hierarchy of government. The accused-appellant is
only one of 250 members of the House of
Representatives, not to mention the 24 members of the
Senate, charged with the duties of legislation. Congress
continues to function well in the physical absence of one
or a few of its members. Depending on the exigency of
Government that has to be addressed, the President or
the Supreme Court can also be deemed the highest for
that particular duty. The importance of a function
depends on the need for its exercise. The duty of a
mother to nurse her infant is most compelling under the
law of nature. A doctor with unique skills has the duty to
save the lives of those with a particular affliction. An
elective governor has to serve provincial constituents. A
police officer must maintain peace and order. Never had
the call of a particular duty lifted a prisoner into a different
classification from those others who are validly restrained
by law.
A strict scrutiny of classifications is essential lest wittingly
or otherwise, insidious discriminations are made in favor
of or against groups or types of individuals.
The Court cannot validate badges of inequality. The
necessities imposed by public welfare may justify exercise
of government authority to regulate even if thereby
certain groups may plausibly assert that their interests are
disregarded.
We, therefore, find that election to the position of
Congressman is not a reasonable classification in criminal
law enforcement. The functions and duties of the office
are not substantial distinctions which lift him from the
class of prisoners interrupted in their freedom and
restricted in liberty of movement. Lawful arrest and
confinement are germane to the purposes of the law and
apply to all those belonging to the same class.
Xxx
It can be seen from the foregoing that incarceration, by
its nature, changes an individual’s status in society .
Prison officials have the difficult and often thankless job
of preserving the security in a potentially explosive
setting, as well as of attempting to provide rehabilitation
that prepare inmates for re-entry into the social
mainstream. Necessarily, both these demands require
the curtailment and elimination of certain rights.
Premises considered, we are constrained to rule against
the accused-appellant’s claim that re-election to public
office gives priority to any other right or interest, including
the police power of the State. (People v. Jalosjos, 324
SCRA 689, Feb. 3, 2000, En Banc [Ynares-
Santiago])
The Right against Unreasonable Searches and Seizures
166. Discuss the constitutional requirement that a
judge, in issuing a warrant of arrest, must determine
probable cause “personally.” Distinguish determination of
probable cause by the prosecutor and determination of
probable cause by the judge.
Held: It must be stressed that the 1987 Constitution
requires the judge to determine probable cause
“personally,” a requirement which does not appear in the
corresponding provisions of our previous constitutions.
This emphasis evinces the intent of the framers to place
a greater degree of responsibility upon trial judges than
that imposed under previous Constitutions .
In Soliven v. Makasiar, this Court pronounced:
“What the Constitution underscores is the exclusive and
personal responsibility of the issuing judge to satisfy
himself of the existence of probable cause. In satisfying
himself of the existence of probable cause for the
issuance of a warrant of arrest, the judge is not required
to personally examine the complainant and his witnesses.
Following established doctrine and procedure, he shall:
(1) personally evaluate the report and the supporting
documents submitted by the fiscal regarding the
existence of probable cause and, on the basis thereof,
issue a warrant of arrest; or (2) if in the basis thereof he
finds no probable cause, he may disregard the fiscal’s
report and require the submission of supporting affidavits
of witnesses to aid him in arriving at a conclusion as to
the existence of probable cause.”
Ho v. People (Ibid.) summarizes existing jurisprudence on
the matter as follows:
“Lest we be too repetitive, we only wish to emphasize
three vital matters once more: First, as held in Inting, the
determination of probable cause by the prosecutor is for
a purpose different from that which is to be made by the
judge. Whether there is reasonable ground to believe
that the accused is guilty of the offense charged and
should be held for trial is what the prosecutor passes
upon. The judge, on the other hand, determines whether
a warrant of arrest should be issued against the accused,
i.e., whether there is a necessity for placing him under
immediate custody in order not to frustrate the ends of
justice. Thus, even if both should base their findings on
one and the same proceeding or evidence, there should
be no confusion as to their distinct objectives.
Second, since their objectives are different, the judge
cannot rely solely on the report of the prosecutor in
finding probable cause to justify the issuance of a warrant
of arrest. Obviously and understandably, the contents of
the prosecutor’s report will support his own conclusion
that there is reason to charge the accused for an offense
and hold him for trial. However, the judge must decide
independently. Hence, he must have supporting
evidence, other than the prosecutor’s bare report, upon
which to legally sustain his own findings on the existence
(or nonexistence) of probable cause to issue an arrest
order. This responsibility of determining personally and
independently the existence or nonexistence of probable
cause is lodged in him by no less than the most basic law
of the land. Parenthetically, the prosecutor could ease
the burden of the judge and speed up the litigation
process by forwarding to the latter not only the
information and his bare resolution finding probable
cause, but also so much of the records and the evidence
on hand as to enable the His Honor to make his personal
and separate judicial finding on whether to issue a
warrant of arrest.
Lastly, it is not required that the complete or entire
records of the case during the preliminary investigation
be submitted to and examined by the judge. We do not
intend to unduly burden trial courts by obliging them to
examine the complete records of every case all the time
simply for the purpose of ordering the arrest of an
accused. What is required, rather, is that the judge must
have sufficient supporting documents (such as the
complaint, affidavits, counter-affidavits, sworn
statements of witnesses or transcript of stenographic
notes, if any) upon which to make his independent
judgment or, at the very least, upon which to verify the
findings of the prosecutor as to the existence of probable
cause. The point is: he cannot rely solely and entirely on
the prosecutor’s recommendation, as Respondent Court
did in this case. Although the prosecutor enjoys the legal
presumption of regularity in the performance of his official
duties and functions, which in turn gives his report the
presumption of accuracy, the Constitution, we repeat,
commands the judge to personally determine probable
cause in the issuance of warrants of arrest. This Court
has consistently held that a judge fails in his bounden
duty if he relies merely on the certification or the report
of the investigating officer.” (Citations omitted)
In the case at bench, respondent admits that he issued
the questioned warrant as there was “no reason for (him)
to doubt the validity of the certification made by the
Assistant Prosecutor that a preliminary investigation was
conducted and that probable cause was found to exist as
against those charged in the information filed.” The
statement is an admission that respondent relied solely
and completely on the certification made by the fiscal that
probable cause exists as against those charged in the
information and issued the challenged warrant of arrest
on the sole basis of the prosecutor’s findings and
recommendations. He adopted the judgment of the
prosecutor regarding the existence of probable cause as
his own. (Abdula v. Guiani, 326 SCRA 1, Feb. 18,
2000, 3rd Div. [Gonzaga-Reyes])
167. Accused-appellant assails the validity of his
arrest and his subsequent convictions for the two
crimes. Both the trial court and the Court of Appeals
found that the arrest and subsequent seizure were legal.
Held: A review of the records at bar shows no reason
to depart therefrom.
The constitutional proscription, that no person
shall be arrested without any warrant of arrest having
been issued prior thereto, is not a hard-and-fast rule. X
x x (Citations omitted)
In the cases at bar, the police saw the gun
tucked in appellant’s waist when he stood up. The gun
was plainly visible. No search was conducted as none
was necessary. Accused-appellant could not show any
license for the firearm, whether at the time of his arrest
or thereafter. Thus, he was in effect committing a crime
in the presence of the police officers. No warrant of
arrest was necessary in such a situation, it being one of
the recognized exceptions under the Rules.
As a consequence of appellant’s valid
warrantless arrest, he may be lawfully searched for
dangerous weapons or anything which may be used as
proof of the commission of an offense, without a search
warrant, as provided in Rule 126, Section 12. This is a
valid search incidental to a lawful arrest. The
subsequent discovery in his car of drug paraphernalia
and the crystalline substance, which, was later identified
as shabu, though in a distant place from where the
illegal possession of firearm was committed, cannot be
said to have been made during an illegal search. As
such, the seized items do not fall within the exclusionary
clause x x x. Hence, not being fruits of the poisonous
tree x x x the objects found at the scene of the crime,
such as the firearm, the shabu and the drug
paraphernalia, can be used as evidence against
appellant. Besides, it has been held that drugs
discovered as a result of a consented search is
admissible in evidence. (Citations omitted.) (People v.
Go, 354 SCRA 338, Mar. 14, 2001, 1st Div.
[Ynares-Santiago])
168. In an application for search warrant, the
application was accompanied by a sketch of the
compound at 516 San Jose de la Montana St., Mabolo,
Cebu City, indicating the 2-storey residential house of
private respondent with a large “X” enclosed in a square.
Within the same compound are residences of other
people, workshops, offices, factories and warehouse. The
search warrant issued, however, merely indicated the
address of the compound which is 516 San Jose de la
Montana St., Mabolo, Cebu City. Did this satisfy the
constitutional requirement under Section 2, Article III that
the place to be searched must be particularly described?
Held: This Court has held that the applicant should
particularly describe the place to be searched and the
person or things to be seized, wherever and whenever it
is feasible. In the present case, it must be noted that the
application for a search warrant was accompanied by a
sketch of the compound at 516 San Jose de la Montana
St., Mabolo, Cebu City. The sketch indicated the 2-storey
residential house of private respondent with a large "X"
enclosed in a square. Within the same compound are
residences of other people, workshops, offices, factories
and warehouse. With this sketch as the guide, it could
have been very easy to describe the residential house of
private respondent with sufficient particularity so as to
segregate it from the other buildings or structures inside
the same compound. But the search warrant merely
indicated the address of the compound which is 516 San
Jose de la Montana St., Mabolo, Cebu City. This
description of the place to be searched is too general and
does not pinpoint the specific house of private
respondent. Thus, the inadequacy of the description of
the residence of private respondent sought to be
searched has characterized the questioned search
warrant as a general warrant, which is violative of the
constitutional requirement. (People v. Estrada, 296
SCRA 383, 400, [Martinez])
169. Can the place to be searched, as set out in the
warrant, be amplified or modified by the officers’ own
personal knowledge of the premises, or the evidence they
adduce in support of their application for the warrant?
Held: Such a change is proscribed by the Constitution
which requires inter alia the search warrant to particularly
describe the place to be searched as well as the persons
or things to be seized. It would concede to police officers
the power of choosing the place to be searched, even if it
not be that delineated in the warrant. It would open wide
the door to abuse of the search process, and grant to
officers executing a search warrant that discretion which
the Constitution has precisely removed from them. The
particularization of the description of the place to be
searched may properly be done only by the Judge, and
only in the warrant itself; it cannot be left to the discretion
of the police officers conducting the search.
It is neither fair nor licit to allow police officers to search
a place different from that stated in the warrant on the
claim that the place actually searched – although not that
specified in the warrant – is exactly what they had in view
when they applied for the warrant and had demarcated in
their supporting evidence. What is material in
determining the validity of a search is the place stated in
the warrant itself, not what applicants had in their
thoughts, or had represented in the proofs they submitted
to the court issuing the warrant. (People v. Court of
Appeals, 291 SCRA 400, June 26, 1998 [Narvasa])
170. What is “search incidental to a lawful arrest”?
Discuss.
Held: While a contemporaneous search of a person
arrested may be effected to discover dangerous weapons
or proofs or implements used in the commission of the
crime and which search may extend to the area within his
immediate control where he might gain possession of a
weapon or evidence he can destroy, a valid arrest must
precede the search. The process cannot be reversed.
In a search incidental to a lawful arrest, as the precedent
arrest determines the validity of the incidental search, the
legality of the arrest is questioned in a large majority of
these cases, e.g., whether an arrest was merely used as
a pretext for conducting a search. In this instance, the
law requires that there be first a lawful arrest before a
search can be made – the process cannot be reversed.
(Malacat v. Court of Appeals, 283 SCRA 159, 175 [1997])
(People v. Chua Ho San, 308 SCRA 432, June 17,
1999, En Banc [Davide, Jr., C.J.])
171. What is the “plain view” doctrine? What are its
requisites? Discuss.
Held: 1. Objects falling in plain view of an officer who
has a right to be in the position to have that view are
subject to seizure even without a search warrant and may
be introduced in evidence . The “plain view” doctrine
applies when the following requisites concur: (a) the law
enforcement officer in search of the evidence has a prior
justification for an intrusion or is in a position from which
he can view a particular area; (b) the discovery of the
evidence in plain view is inadvertent; (c) it is immediately
apparent to the officer that the item he observes may be
evidence of a crime, contraband or otherwise subject to
seizure. The law enforcement officer must lawfully make
an initial intrusion or properly be in a position from which
he can particularly view the area. In the course of such
lawful intrusion, he came inadvertently across a piece of
evidence incriminating the accused. The object must be
open to eye and hand and its discovery inadvertent.
It is clear that an object is in plain view if the object itself
is plainly exposed to sight. The difficulty arises when the
object is inside a closed container. Where the object
seized was inside a closed package, the object itself is not
in plain view and therefore cannot be seized without a
warrant. However, if the package proclaims its contents,
whether by its distinctive configuration, its transparency,
or if its contents are obvious to an observer, then the
contents are in plain view and may be seized. In other
words, if the package is such that an experienced
observer could infer from its appearance that it contains
the prohibited article, then the article is deemed in plain
view. It must be immediately apparent to the police that
the items that they observe may be evidence of a crime,
contraband or otherwise subject to seizure. (People v.
Doria, 301 SCRA 668, Jan. 22, 1999, En Banc
[Puno, J.])
2. For the doctrine to apply, the following elements must
be present:
a) a prior valid intrusion based on the valid
warrantless arrest in which the police are legally present
in the pursuit of their official duties;
b) the evidence was inadvertently discovered by
the police who have the right to be where they are; and
c) the evidence must be immediately apparent;
and
d) plain view justified mere seizure of evidence
without further search.
In the instant case, recall that PO2 Balut testified that
they first located the marijuana plants before appellant
was arrested without a warrant. Hence, there was no
valid warrantless arrest which preceded the search of
appellant’s premises. Note further that the police team
was dispatched to appellant’s kaingin precisely to search
for and uproot the prohibited flora. The seizure of
evidence in “plain view” applies only where the police
officer is not searching for evidence against the accused,
but inadvertently comes across an incriminating object .
Clearly, their discovery of the cannabis plants was not
inadvertent. We also note the testimony of SPO2 Tipay
that upon arriving at the area, they first had to “look
around the area” before they could spot the illegal plants.
Patently, the seized marijuana plants were not
“immediately apparent” and “further search” was needed.
In sum, the marijuana plants in question were not in
“plain view” or “open to eye and hand.” The “plain view”
doctrine, thus, cannot be made to apply.
Nor can we sustain the trial court’s conclusion that just
because the marijuana plants were found in an unfenced
lot, appellant could not invoke the protection afforded by
the Charter against unreasonable searches by agents of
the State. The right against unreasonable searches and
seizures is the immunity of one’s person, which includes
his residence, his papers, and other possessions. The
guarantee refers to “the right of personal security” of the
individual. X x x, what is sought to be protected against
the State’s unlawful intrusion are persons, not places . To
conclude otherwise would not only mean swimming
against the stream, it would also lead to the absurd logic
that for a person to be immune against unreasonable
searches and seizures, he must be in his home or office,
within a fenced yard or a private place. The Bill of Rights
belongs as much to the person in the street as to the
individual in the sanctuary of his bedroom. (People v.
Abe Valdez, G.R. No. 129296, Sept. 25, 2000, En
Banc [Quisumbing])
3. Considering its factual milieu, this case falls squarely
under the plain view doctrine. X x x.
When Spencer wrenched himself free from the grasp of
PO2 Gaviola, he instinctively ran towards the house of
appellant. The members of the buy-bust team were
justified in running after him and entering the house
without a search warrant for they were hot in the heels
of a fleeing criminal. Once inside the house, the police
officers cornered Spencer and recovered the buy-bust
money from him. They also caught appellant in flagrante
delicto repacking the marijuana bricks which were in full
view on top of a table. X x x.
Hence, appellant’s subsequent arrest was likewise lawful,
coming as it is within the purview of Section 5(a) of Rule
113 of the 1985 Rules on Criminal Procedure x x x.
Section 5(a) is commonly referred to as the rule on in
flagrante delicto arrests. Here two elements must concur:
(1) the person to be arrested must execute an overt act
indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and (2)
such overt act is done in the presence or within the view
of the arresting officer. Thus, when appellant was seen
repacking the marijuana, the police officers were not only
authorized but also duty-bound to arrest him even
without a warrant. (People v. Elamparo, 329 SCRA
404, 414-415, March 31, 2000, 2nd Div.
[Quisumbing])
172. What is a “stop-and-frisk” search?
Held: 1. In the landmark case of Terry v. Ohio (20 L Ed
2d 889; 88 S Ct 1868, 392 US 1, 900, June 10, 1968), a
stop-and-frisk was defined as the vernacular designation
of the right of a police officer to stop a citizen on the
street, interrogate him, and pat him for weapon(s):
“x x x (W)here a police officer observes an unusual
conduct which leads him reasonably to conclude in light
of his experience that criminal activity may be afoot and
that the persons with whom he is dealing may be armed
and presently dangerous, where in the course of
investigating this behavior he identified himself as a
policeman and make reasonable inquiries, and where
nothing in the initial stages of the encounter serves to
dispel his reasonable fear for his own or others’ safety, he
is entitled for the protection of himself or others in the
area to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a
search is a reasonable search under the Fourth
Amendment, and any weapon seized may properly be
introduced in evidence against the person from whom
they were taken.” (Herrera, A Handbook on Arrest,
Search and Seizure and Custodial Investigation, 1995 ed.,
p. 185; and Terry v. Ohio, supra, p. 911)
In allowing such a search, the United States Supreme
Court held that the interest of effective crime prevention
and detection allows a police officer to approach a person,
in appropriate circumstances and manner, for purposes of
investigating possible criminal behavior even though
there is insufficient probable cause to make an actual
arrest.
In admitting in evidence two guns seized during the stop-
and-frisk, the US Supreme Court held that what justified
the limited search was the more immediate interest of the
police officer in taking steps to assure himself that the
person with whom he was dealing was not armed with a
weapon that could unexpectedly and fatally be used
against him.
It did not, however, abandon the rule that the police
must, whenever practicable, obtain advance judicial
approval of searches and seizures through the warrant
procedure, excused only by exigent circumstances.
(Manalili v. CA, 280 SCRA 400, Oct. 9, 1997
[Panganiban])
2. We now proceed to the justification for and allowable
scope of a “stop-and-frisk” as a “limited protective search
of outer clothing for weapons,” as laid down in Terry,
thus:
We merely hold today that where a police officer observes
unusual conduct which leads him reasonably to conclude
in light of his experience that criminal activity may be
afoot and that the persons with whom he is dealing may
be armed and presently dangerous, where in the course
of investigating this behavior he identifies himself as a
policeman and makes reasonable inquiries, and where
nothing in the initial stages of the encounter serves to
dispel his reasonable fear for his own or others’ safety, he
is entitled for the protection of himself and others in the
area to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a
search is a reasonable search under the Fourth
Amendment (Terry, at 911. In fact, the Court noted that
the ‘sole justification’ for a stop-and-frisk was the
‘protection of the police officer and others nearby’; while
the scope of the search conducted in the case was limited
to patting down the outer clothing of petitioner and his
companions, the police officer did not place his hands in
their pockets nor under the outer surface of their
garments until he had felt weapons, and then he merely
reached for and removed the guns. This did not
constitute a general exploratory search, Id.)
Other notable points of Terry are that while probable
cause is not required to conduct a “stop-and-frisk,” it
nevertheless holds that mere suspicion or a hunch will not
validate a “stop-and-frisk.” A genuine reason must exist,
in light of the police officer’s experience and surrounding
conditions, to warrant the belief that the person detained
has weapons concealed about him. Finally, a “stop-and-
frisk” serves a two-fold interest: (1) the general interest
of effective crime prevention and detection, which
underlies the recognition that a police officer may, under
appropriate circumstances and in an appropriate manner,
approach a person for purposes of investigating possible
criminal behavior even without probable cause; and (2)
the more pressing interest of safety and self-preservation
which permit the police officer to take steps to assure
himself that the person with whom he deals is not armed
with a deadly weapon that could unexpectedly and fatally
be used against the police officer. (Malacat v. Court of
Appeals, 283 SCRA 159, Dec. 12, 1997 [Davide])
173. Are searches at checkpoints valid? Discuss.
Held: Accused-appellants assail the manner by which the
checkpoint in question was conducted. They contend that
the checkpoint manned by elements of the Makati Police
should have been announced. They also complain of its
having been conducted in an arbitrary and discriminatory
manner.
We take judicial notice of the existence of the
COMELEC resolution imposing a gun ban during the
election period issued pursuant to Section 52(c) in relation
to Section 26(q) of the Omnibus Election Code (Batas
Pambansa Blg. 881). The national and local elections in
1995 were held on 8 May, the second Monday of the
month. The incident, which happened on 5 April 1995,
was well within the election period.
This Court has ruled that not all checkpoints are
illegal. Those which are warranted by the exigencies of
public order and are conducted in a way least intrusive to
motorists are allowed. For, admittedly, routine
checkpoints do intrude, to a certain extent, on motorists’
right to “free passage without interruption,” but it cannot
be denied that, as a rule, it involves only a brief detention
of travelers during which the vehicle’s occupants are
required to answer a brief question or two. For as long
as the vehicle is neither searched nor its occupants
subjected to a body search, and the inspection of the
vehicle is limited to a visual search, said routine checks
cannot be regarded as violative of an individual’s right
against unreasonable search. In fact, these routine
checks, when conducted in a fixed area, are even less
intrusive.
The checkpoint herein conducted was in
pursuance of the gun ban enforced by the COMELEC. The
COMELEC would be hard put to implement the ban if its
deputized agents were limited to a visual search of
pedestrians. It would also defeat the purpose for which
such ban was instituted. Those who intend to bring a gun
during said period would know that they only need a car
to be able to easily perpetrate their malicious designs.
The facts adduced do not constitute a ground for
a violation of the constitutional rights of the accused
against illegal search and seizure. PO3 Suba admitted
that they were merely stopping cars they deemed
suspicious, such as those whose windows are heavily
tinted just to see if the passengers thereof were carrying
guns. At best they would merely direct their flashlights
inside the cars they would stop, without opening the car’s
doors or subjecting its passengers to a body search.
There is nothing discriminatory in this as this is what the
situation demands.
We see no need for checkpoints to be announced
x x x. Not only would it be impractical, it would also
forewarn those who intend to violate the ban. Even so,
badges of legitimacy of checkpoints may still be inferred
from their fixed location and the regularized manner in
which they are operated. (People v. Usana, 323 SCRA
754, Jan. 28, 2000, 1st Div. [Davide, CJ])
174. Do the ordinary rights against unreasonable
searches and seizures apply to searches conducted at the
airport pursuant to routine airport security procedures?
Held: Persons may lose the protection of the search and
seizure clause by exposure of their persons or property to
the public in a manner reflecting a lack of subjective
expectation of privacy, which expectation society is
prepared to recognize as reasonable. Such recognition is
implicit in airport security procedures. With increased
concern over airplane hijacking and terrorism has come
increased security at the nation’s airports. Passengers
attempting to board an aircraft routinely pass through
metal detectors; their carry-on baggage as well as
checked luggage are routinely subjected to x-ray scans.
Should these procedures suggest the presence of
suspicious objects, physical searches are conducted to
determine what the objects are. There is little question
that such searches are reasonable, given their minimal
intrusiveness, the gravity of the safety interests involved,
and the reduced privacy expectations associated with
airline travel. Indeed, travelers are often notified through
airport public address systems, signs, and notices in their
airline tickets that they are subject to search and, if any
prohibited materials or substances are found, such would
be subject to seizure. These announcements place
passengers on notice that ordinary constitutional
protections against warrantless searches and seizures do
not apply to routine airport procedures.
The packs of methamphetamine hydrochloride having
thus been obtained through a valid warrantless search,
they are admissible in evidence against the accused-
appellant herein. Corollarily, her subsequent arrest,
although likewise without warrant, was justified since it
was effected upon the discovery and recovery of “shabu”
in her person in flagrante delicto. (People v. Leila
Johnson, G.R. No. 138881, Dec. 18, 2000, 2nd Div.
[Mendoza])

175. May the constitutional protection against
unreasonable searches and seizures be extended to acts
committed by private individuals?
Held: As held in People v. Marti (193 SCRA 57 [1991]),
the constitutional protection against unreasonable
searches and seizures refers to the immunity of one's
person from interference by government and it cannot be
extended to acts committed by private individuals so as
to bring it within the ambit of alleged unlawful intrusion.
(People v. Mendoza, 301 SCRA 66, Jan. 18, 1999,
1st Div. [Melo])
176. Should the seized drugs which are
pharmaceutically correct but not properly documented
subject of an illegal search because the applicant “failed
to allege in the application for search warrant that the
subject drugs for which she was applying for search
warrant were either fake, misbranded, adulterated, or
unregistered,” be returned to the owner?
Held: With the State's obligation to protect and promote
the right to health of the people and instill health
consciousness among them (Article II, Section 15, 1987
Constitution), in order to develop a healthy and alert
citizenry (Article XIV, Section 19[1]), it became
mandatory for the government to supervise and control
the proliferation of drugs in the market. The
constitutional mandate that "the State shall adopt an
integrated and comprehensive approach to health
development which shall endeavor to make essential
goods, health and other social services available to all
people at affordable cost" (Article XIII, Section 11) cannot
be neglected. This is why "the State shall establish and
maintain an effective food and drug regulatory system."
(Article XIII, Section 12) The BFAD is the government
agency vested by law to make a mandatory and
authoritative determination of the true therapeutic effect
of drugs because it involves technical skill which is within
its special competence. The health of the citizenry should
never be compromised. To the layman, medicine is a cure
that may lead to better health.
If the seized 52 boxes of drugs are pharmaceutically
correct but not properly documented, they should be
promptly disposed of in the manner provided by law in
order to ensure that the same do not fall into the wrong
hands who might use the drugs underground. Private
respondent cannot rely on the statement of the trial court
that the applicant "failed to allege in the application for
search warrant that the subject drugs for which she was
applying for search warrant were either fake, misbranded,
adulterated, or unregistered" in order to obtain the return
of the drugs. The policy of the law enunciated in R.A. No.
8203 is to protect the consumers as well as the licensed
businessmen. Foremost among these consumers is the
government itself which procures medicines and
distributes them to the local communities through direct
assistance to the local health centers or through outreach
and charity programs. Only with the proper government
sanctions can medicines and drugs circulate the market.
We cannot afford to take any risk, for the life and health
of the citizenry are as precious as the existence of the
State. (People v. Judge Estrella T. Estrada, G.R No.
124461, June 26, 2000, Spcl. 2nd Div. [Ynares-
Santiago])
177. Do Regional Trial Courts have competence to
pass upon the validity or regularity of seizure and
forfeiture proceedings conducted by the Bureau of
Customs and to enjoin or otherwise interfere with these
proceedings?
Held: In Jao v. Court of Appeals (249 SCRA 35, 42-43
[1995]), this Court, reiterating its rulings x x x said:
There is no question that Regional Trial Courts are devoid
of any competence to pass upon the validity or regularity
of seizure and forfeiture proceedings conducted by the
Bureau of Customs and to enjoin or otherwise interfere
with these proceedings. The Collector of Customs sitting
in seizure and forfeiture proceedings has exclusive
jurisdiction to hear and determine all questions touching
on the seizure and forfeiture of dutiable goods. The
Regional Trial Courts are precluded from assuming
cognizance over such matters even through petitions of
certiorari, prohibition or mandamus.
It is likewise well-settled that the provisions of the Tariff
and Customs Code and that of Republic Act No. 1125, as
amended, otherwise known as “An Act Creating the Court
of Tax Appeals,” specify the proper fora and procedure
for the ventilation of any legal objections or issues raised
concerning these proceedings. Thus, actions of the
Collector of Customs are appealable to the Commissioner
of Customs, whose decision, in turn, is subject to the
exclusive appellate jurisdiction of the Court of Tax Appeals
and from there to the Court of Appeals.
The rule that Regional Trial Courts have no review powers
over such proceedings is anchored upon the policy of
placing no unnecessary hindrance on the government’s
drive, not only to prevent smuggling and other frauds
upon Customs, but more importantly, to render effective
and efficient the collection of import and export duties
due the State, which enables the government to carry out
the functions it has been instituted to perform.
Even if the seizure by the Collector of Customs were
illegal, x x x we have said that such act does not deprive
the Bureau of Customs of jurisdiction thereon.
Respondents cite the statement of the Court of Appeals
that regular courts still retain jurisdiction “where, as in
this case, for lack of probable cause, there is serious
doubt as to the propriety of placing the articles under
Customs jurisdiction through seizure/forfeiture
proceedings.” They overlook the fact, however, that
under the law, the question of whether probable cause
exists for the seizure of the subject sacks of rice is not for
the Regional Trial Court to determine. The customs
authorities do not have to prove to the satisfaction of the
court that the articles on board a vessel were imported
from abroad or are intended to be shipped abroad before
they may exercise the power to effect customs’ searches,
seizures, or arrests provided by law and continue with the
administrative hearings. As the Court held in Ponce Enrile
v. Vinuya (37 SCRA 381, 388-389 [1971], reiterated in Jao
v. Court of Appeals, supra and Mison v. Natividad, 213
SCRA 734 [1992]):
The governmental agency concerned, the Bureau of
Customs, is vested with exclusive authority. Even if it be
assumed that in the exercise of such exclusive
competence a taint of illegality may be correctly imputed,
the most that can be said is that under certain
circumstances the grave abuse of discretion conferred
may oust it of such jurisdiction. It does not mean
however that correspondingly a court of first instance is
vested with competence when clearly in the light of the
above decisions the law has not seen fit to do so. The
proceeding before the Collector of Customs is not final.
An appeal lies to the Commissioner of Customs and
thereafter to the Court of Tax Appeals. It may even reach
this Court through the appropriate petition for review.
The proper ventilation of the legal issues raised is thus
indicated. Certainly a court of first instance is not therein
included. It is devoid of jurisdiction.
(Bureau of Customs v. Ogario, 329 SCRA 289, 296-
298, March 30, 2000, 2nd Div. [Mendoza])
178. Discuss the nature of an in flagrante delicto
warrantless arrest. Illustrative case.
Held: In the case at bar, the court a quo
anchored its judgment of conviction on a finding that the
warrantless arrest of accused-appellants, and the
subsequent search conducted by the peace officers, are
valid because accused-appellants were caught in
flagrante delicto in possession of prohibited drugs. This
brings us to the issue of whether or not the warrantless
arrest, search and seizure in the present case fall within
the recognized exceptions to the warrant requirement.
In People v. Chua Ho San, the Court held that in
cases of in flagrante delicto arrests, a peace officer or a
private person may, without a warrant, arrest a person
when, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense. The arresting office, therefore, must
have personal knowledge of such fact or, as a recent case
law adverts to, personal knowledge of facts or
circumstances convincingly indicative or constitutive of
probable cause. As discussed in People v. Doria, probable
cause means an actual belief or reasonable grounds of
suspicion. The grounds of suspicion are reasonable
when, in the absence of actual belief of the arresting
officers, the suspicion that the person to be arrested is
probably guilty of committing the offense, is based on
actual facts, i.e., supported by circumstances sufficiently
strong in themselves to create the probable cause of guilt
of the person to be arrested. A reasonable suspicion
therefore must be founded on probable cause, coupled
with good faith on the part of the peace officers making
the arrest.
As applied to in flagrante delicto arrests, it is
settled that “reliable information” alone, absent any overt
act indicative of a felonious enterprise in the presence and
within the view of the arresting officers, are not sufficient
to constitute probable cause that would justify an in
flagrante delicto arrest. Thus, in People v. Aminnudin
(163 SCRA 402, 409-410 [1988]), it was held that “the
accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about
to do so or that he had just done so. What he was doing
was descending the gangplank of the M/V Wilcon 9 and
there was no outward indication that called for his arrest.
To all appearances, he was like any of the other
passengers innocently disembarking from the vessel. It
was only when the informer pointed to him as the carrier
of the marijuana that he suddenly became suspect and so
subject to apprehension.”
Likewise, in People v. Mengote (210 SCRA 174,
179-180 [1992]), the Court did not consider “eyes . . .
darting from side to side . . . [while] holding . . . [one’s]
abdomen,” in a crowded street at 11:30 in the morning,
as overt acts and circumstances sufficient to arouse
suspicion and indicative of probable cause. According to
the Court, “[b]y no stretch of the imagination could it
have been inferred from these acts that an offense had
just been committed, or was actually being committed, or
was at least being attempted in [the arresting officers’]
presence.” So also, in People v. Encinada (280 SCRA 72,
86-87 [1997]), the Court ruled that no probable cause is
gleanable from the act of riding a motorela while holding
two plastic baby chairs.
Then, too, in Malacat v. Court of Appeals (283
SCRA 159 [1997]), the trial court concluded that
petitioner was attempting to commit a crime as he was
“’standing at the corner of Plaza Miranda and Quezon
Boulevard’ with his eyes ‘moving very fast’ and ‘looking at
every person that come (sic) nearer (sic) to them.’” In
declaring the warrantless arrest therein illegal, the Court
said:
Here, there could have been no valid in flagrante delicto
… arrest preceding the search in light of the lack of
personal knowledge on the part of Yu, the arresting
officer, or an overt physical act, on the part of petitioner,
indicating that a crime had just been committed, was
being committed or was going to be committed. (Id., at
175)
It went on to state that –
Second, there was nothing in petitioner’s behavior or
conduct which could have reasonably elicited even mere
suspicion other than that his eyes were “moving very fast”
– an observation which leaves us incredulous since Yu and
his teammates were nowhere near petitioner and it was
already 6:60 p.m., thus presumably dusk. Petitioner and
his companions were merely standing at the corner and
were not creating any commotion or trouble . . .
Third, there was at all no ground, probable or otherwise,
to believe that petitioner was armed with a deadly
weapon. None was visible to Yu, for as he admitted, the
alleged grenade was “discovered” “inside the front
waistline” of petitioner, and from all indications as to the
distance between Yu and petitioner, any telltale bulge,
assuming that petitioner was indeed hiding a grenade,
could not have been visible to Yu. (Id., at 178).
Clearly, to constitute a valid in flagrante delicto arrest,
two requisites must concur: (1) the person to be
arrested must execute an overt act indicating that he
has just committed, is actually committing, or is
attempting to commit a crime; and (2) such overt act is
done in the presence or within the view of the arresting
officer (Concurring Opinion of Justice Artemio V.
Panganiban in People v. Doria, 301 SCRA 668, 720
[1999]).
In the case at bar, accused-appellants manifested no
outward indication that would justify their arrest. In
holding a bag on board a trisikad, accused-appellants
could not be said to be committing, attempting to
commit or have committed a crime. It matters not that
accused-appellant Molina responded “Boss, if possible
we will settle this” to the request of SPO1 Pamplona to
open the bag. Such response which allegedly reinforced
the “suspicion” of the arresting officers that accused-
appellants were committing a crime, is an equivocal
statement which standing alone will not constitute
probable cause to effect an in flagrante delicto arrest.
Note that were it not for SPO1 Marino Paguidopon (who
did not participate in the arrest but merely pointed
accused-appellants to the arresting officers), accused-
appellants could not be subject of any suspicion,
reasonable or otherwise.
While SPO1 Paguidopon claimed that he and his
informer conducted a surveillance of accused-appellant
Mula, SPO1 Paguidopon, however, admitted that he only
learned Mula’s name and address after the arrest. What
is more, it is doubtful if SPO1 Paguidopon indeed
recognized accused-appellant Mula. It is worthy to note
that, before the arrest, he was able to see Mula in
person only once, pinpointed to him by his informer
while they were on the side of the road. These
circumstances could not have afforded SPO1 Paguidopon
a closer look at accused-appellant Mula, considering that
the latter was then driving a motorcycle when SPO1
Paguidopon caught a glimpse of him. With respect to
accused-appellant Molina, SPO1 Paguidopon admitted
that he had never seen him before the arrest.
This belies the claim of SPO1 Pamplona that he knew
the name of accused-appellants even before the arrest x
x x.
The aforesaid testimony of SPO1 Pamplona, therefore, is
entirely baseless. SPO1 Pamplona could not have
learned the name of accused-appellants from SPO1
Paguidopon because Paguidopon himself, who allegedly
conducted the surveillance, was not even aware of
accused-appellants’ name and address prior to the
arrest.
Evidently, SPO1 Paguidopon, who acted as informer of
the arresting officers, more so the arresting officers
themselves, could not have been certain of accused-
appellants’ identity, and were, from all indications,
merely fishing for evidence at the time of the arrest.
Compared to People v. Encinada, the arresting officer in
the said case knew appellant Encinada even before the
arrest because of the latter’s illegal gambling activities,
thus, lending at least a semblance of validity on the
arrest effected by the peace officers. Nevertheless, the
Court declared in said case that the warrantless arrest
and the consequent search were illegal, holding that
“[t]he prosecution’s evidence did not show any
suspicious behavior when the appellant disembarked
from the ship or while he rode the motorela. No act or
fact demonstrating a felonious enterprise could be
ascribed to appellant under such bare circumstances.”
(People v. Encinada, supra.)
Moreover, it could not be said that accused-appellants
waived their right against unreasonable searches and
seizure. Implied acquiescence to the search, if there
was any, could not have been more than mere passive
conformity given under intimidating or coercive
circumstances and is thus considered no consent at all
within the purview of the constitutional guarantee (Id.,
at 91; citing Aniag v. Commission on Elections, 237
SCRA 424, 436-437 [1994]).
Withal, the Court holds that the arrest of accused-
appellants does not fall under the exceptions allowed by
the rules. Hence, the search conducted on their person
was likewise illegal. Consequently, the marijuana seized
by the peace officers could not be admitted as evidence
against accused-appellants, and the Court is thus, left
with no choice but to find in favor of accused-appellants.
(People v. Molina, 352 SCRA 174, Feb. 19, 2001, En
Banc [Ynares-Santiago])

The Privacy of Communications and Correspondence
179. Private respondent Rafael S. Ortanez filed with
the Regional Trial Court of Quezon City a complaint for
annulment of marriage with damages against petitioner
Teresita Salcedo-Ortanez, on grounds of lack of marriage
license and/or psychological incapacity of the petitioner.
Among the exhibits offered by private respondent were
three (3) cassette tapes of alleged telephone
conversations between petitioner and unidentified
persons. The trial court issued the assailed order
admitting all of the evidence offered by private
respondent, including tape recordings of telephone
conversations of petitioner with unidentified persons.
These tape recordings were made and obtained when
private respondent allowed his friends from the military
to wire tap his home telephone. Did the trial court act
properly when it admitted in evidence said tape
recordings?
Held: Republic Act No. 4200 entitled "An Act to Prohibit
and Penalize Wire Tapping and Other Related Violations
of the Privacy of Communication, and For Other Purposes"
expressly makes such tape recordings inadmissible in
evidence. x x x.
Clearly, respondent trial court and Court of Appeals failed
to consider the afore-quoted provisions of the law in
admitting in evidence the cassette tapes in question.
Absent a clear showing that both parties to the telephone
conversations allowed the recording of the same, the
inadmissibility of the subject tapes is mandatory under
Rep. Act No. 4200.
Additionally, it should be mentioned that the above-
mentioned Republic Act in Section 2 thereof imposes a
penalty of imprisonment of not less than six (6) months
and up to six (6) years for violation of said Act.
(Salcedo-Ortanez v. Court of Appeals, 235 SCRA
111, Aug. 4, 1994 [Padilla])
The Right to Privacy
180. Is there a constitutional right to privacy?
Held: The essence of privacy is the “right to be let
alone.” In the 1965 case of Griswold v. Connecticut (381
U.S. 479, 14 l. ed. 2D 510 [1965]), the United States
Supreme Court gave more substance to the right of
privacy when it ruled that the right has a constitutional
foundation. It held that there is a right of privacy which
can be found within the penumbras of the First, Third,
Fourth, Fifth and Ninth Amendments. In the 1968 case
of Morfe v. Mutuc (22 SCRA 424, 444-445), we adopted
the Griswold ruling that there is a constitutional right to
privacy.
The SC clarified that the right of privacy is recognized and
enshrined in several provisions of our Constitution. It is
expressly recognized in Section 3(1) of the Bill of Rights.
Other facets of the right to privacy are protected in
various provisions of the Bill of Rights, i.e., Secs. 1, 2, 6,
8, and 17. (Ople v. Torres, G.R. No. 127685, July
23, 1998 [Puno])
135.Identify the zones of privacy recognized and
protected in our laws.
Held: The Civil Code provides that “[e]very person shall
respect the dignity, personality, privacy and peace of
mind of his neighbors and other persons” and punishes
as actionable torts several acts by a person of meddling
and prying into the privacy of another. It also holds a
public officer or employee or any private individual liable
for damages for any violation of the rights and liberties of
another person, and recognizes the privacy of letters and
other private communications. The Revised Penal Code
makes a crime the violation of secrets by an officer, the
revelation of trade and industrial secrets, and trespass to
dwelling. Invasion of privacy is an offense in special laws
like the Anti-Wiretapping Law (R.A. 4200), the Secrecy of
Bank Deposits (R.A. 1405) and the Intellectual Property
Code (R.A. 8293). The Rules of Court on privileged
communication likewise recognize the privacy of certain
information (Section 24, Rule 130[c], Revised Rules on
Evidence). (Ople v. Torres, G.R. No. 127685, July
23, 1998 [Puno])
180. Discuss why Administrative Order No. 308 (issued
by the President prescribing for a National ID system for
all citizens to facilitate business transactions with
government agencies engaged in the delivery of basic
services and social security provisions) should be declared
unconstitutional.
Held: We prescind from the premise that the right to
privacy is a fundamental right guaranteed by the
Constitution, hence, it is the burden of government to
show that A.O. No. 308 is justified by some compelling
state interest and that it is narrowly drawn. A.O. No. 308
is predicated on two considerations: (1) the need to
provide our citizens and foreigners with the facility to
conveniently transact business with basic service and
social security providers and other government
instrumentalities and (2) the need to reduce, if not totally
eradicate, fraudulent transactions and misrepresentations
by persons seeking basic services. It is debatable
whether these interests are compelling enough to warrant
the issuance of A.O. No. 308. But what is not arguable is
the broadness, the vagueness, the overbreadth of A.O.
No. 308 which if implemented will put our people’s right
to privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which
provides for a Population Reference Number (PRN) as a
“common reference number to establish a linkage among
concerned agencies” through the use of “Biometrics
Technology” and “computer application designs.”
It is noteworthy that A.O. No. 308 does not state what
specific biological characteristics and what particular
biometrics technology shall be used to identify people
who will seek its coverage. Considering the banquet of
options available to the implementors of A.O. No. 308, the
fear that it threatens the right to privacy of our people is
not groundless.
A.O. No. 308 should also raise our antennas for a further
look will show that it does not state whether encoding of
data is limited to biological information alone for
identification purposes. X x x. Clearly, the indefiniteness
of A.O. No. 308 can give the government the roving
authority to store and retrieve information for a purpose
other than the identification of the individual through his
PRN.
The potential for misuse of the data to be gathered under
A.O. No. 308 cannot be underplayed x x x. The more
frequent the use of the PRN, the better the chance of
building a huge and formidable information base through
the electronic linkage of the files. The data may be
gathered for gainful and useful government purposes; but
the existence of this vast reservoir of personal information
constitutes a covert invitation to misuse, a temptation
that may be too great for some of our authorities to resist.
It is plain and we hold that A.O. No. 308 falls short of
assuring that personal information which will be gathered
about our people will only be processed for unequivocally
specified purposes. The lack of proper safeguards in this
regard of A.O. No. 308 may interfere with the individual’s
liberty of abode and travel by enabling authorities to track
down his movement; it may also enable unscrupulous
persons to access confidential information and circumvent
the right against self-incrimination; it may pave the way
for “fishing expeditions” by government authorities and
evade the right against unreasonable searches and
seizures. The possibilities of abuse and misuse of the
PRN, biometrics and computer technology are
accentuated when we consider that the individual lacks
control over what can be read or placed on his ID, much
less verify the correctness of the data encoded. They
threaten the very abuses that the Bill of Rights seeks to
prevent.
The ability of a sophisticated data center to generate a
comprehensive cradle-to-grave dossier on an individual
and transmit it over a national network is one of the most
graphic threats of the computer revolution. The computer
is capable of producing a comprehensive dossier on
individuals out of information given at different times and
for varied purposes. X x x. Retrieval of stored data is
simple. When information of a privileged character finds
its way into the computer, it can be extracted together
with other data on the subject. Once extracted, the
information is putty in the hands of any person. The end
of privacy begins.
[T]he Court will not be true to its role as the ultimate
guardian of the people’s liberty if it would not immediately
smother the sparks that endanger their rights but would
rather wait for the fire that could consume them.
[A]nd we now hold that when the integrity of a
fundamental right is at stake, this Court will give the
challenged law, administrative order, rule or regulation a
stricter scrutiny. It will not do for the authorities to invoke
the presumption of regularity in the performance of
official duties. Nor is it enough for the authorities to prove
that their act is not irrational for a basic right can be
diminished, if not defeated, even when the government
does not act irrationally. They must satisfactorily show
the presence of compelling state interest and that the law,
rule, or regulation is narrowly drawn to preclude abuses.
This approach is demanded by the 1987 Constitution
whose entire matrix is designed to protect human rights
and to prevent authoritarianism. In case of doubt, the
least we can do is to lean towards the stance that will not
put in danger the rights protected by the Constitution.
The right to privacy is one of the most threatened rights
of man living in a mass society. The threats emanate
from various sources – governments, journalists,
employers, social scientists, etc. In the case at bar, the
threat comes from the executive branch of government
which by issuing A.O. No. 308 pressures the people to
surrender their privacy by giving information about
themselves on the pretext that it will facilitate delivery of
basic services. Given the record-keeping power of the
computer, only the indifferent will fail to perceive the
danger that A.O. No. 308 gives the government the power
to compile a devastating dossier against unsuspecting
citizens. X x x [W]e close with the statement that the
right to privacy was not engraved in our Constitution for
flattery. (Ople v. Torres, G.R. No. 127685, July 23,
1998 [Puno])
181. Should in camera inspection of bank accounts be
allowed? If in the affirmative, under what circumstances
should it be allowed?
Held: The issue is whether petitioner may be cited for
indirect contempt for her failure to produce the
documents requested by the Ombudsman. And whether
the order of the Ombudsman to have an in camera
inspection of the questioned account is allowed as an
exception to the law on secrecy of bank deposits (R.A.
No. 1405).
An examination of the secrecy of bank deposits law (R.A.
No. 1405) would reveal the following exceptions:
1) Where the depositor consents in writing;
2) Impeachment cases;
3) By court order in bribery or dereliction of duty
cases against public officials;
4) Deposit is subject of litigation;
5) Sec. 8, R.A. No. 3019, in cases of unexplained
wealth as held in the case of PNB v. Gancayco (122 Phil.
503, 508 [1965]).
The order of the Ombudsman to produce for in camera
inspection the subject accounts with the Union Bank of
the Philippines, Julia Vargas Branch, is based on a
pending investigation at the Office of the Ombudsman
against Amado Lagdameo, et. al. for violation of R.A. No.
3019, Sec. 3 (e) and (g) relative to the Joint Venture
Agreement between the Public Estates Authority and
AMARI.
We rule that before an in camera inspection may be
allowed, there must be a pending case before a court of
competent jurisdiction. Further, the account must be
clearly identified, the inspection limited to the subject
matter of the pending case before the court of competent
jurisdiction. The bank personnel and the account holder
must be notified to be present during the inspection, and
such inspection may cover only the account identified in
the pending case.
In Union Bank of the Philippines v. Court of Appeals, we
held that “Section 2 of the Law on Secrecy of Bank
Deposits, as amended, declares bank deposits to be
‘absolutely confidential’ except:
1) In an examination made in the course of a
special or general examination of a bank that is
specifically authorized by the Monetary Board after being
satisfied that there is reasonable ground to believe that a
bank fraud or serious irregularity has been or is being
committed and that it is necessary to look into the deposit
to establish such fraud or irregularity,
2) In an examination made by an independent
auditor hired by the bank to conduct its regular audit
provided that the examination is for audit purposes only
and the results thereof shall be for the exclusive use of
the bank,
3) Upon written permission of the depositor,
4) In cases of impeachment,
5) Upon order of a competent court in cases of
bribery or dereliction of duty of public officials, or
6) In cases where the money deposited or
invested is the subject matter of the litigation”.
In the case at bar, there is yet no pending litigation before
any court of competent authority. What is existing is an
investigation by the Office of the Ombudsman. In short,
what the Office of the Ombudsman would wish to do is to
fish for additional evidence to formally charge Amado
Lagdameo, et. al., with the Sandiganbayan. Clearly, there
was no pending case in court which would warrant the
opening of the bank account for inspection.
Zones of privacy are recognized and protected in our
laws. The Civil Code provides that “[e]very person shall
respect the dignity, personality, privacy and peace of
mind of his neighbors and other persons” and punishes
as actionable torts several acts for meddling and prying
into the privacy of another. It also holds public officer or
employee or any private individual liable for damages for
any violation of the rights and liberties of another person,
and recognizes the privacy of letters and other private
communications. The Revised Penal Code makes a crime
of the violation of secrets by an officer, revelation of trade
and industrial secrets, and trespass to dwelling. Invasion
of privacy is an offense in special laws like the anti-
Wiretapping Law, the Secrecy of Bank Deposits Act, and
the Intellectual Property Code. (Lourdes T. Marquez v.
Hon. Aniano A. Desierto, G.R. No. 135882, June 27,
2001, En Banc [Pardo])
Freedom of Expression
182. Distinguish “content-based restrictions” on free
speech from “content-neutral restrictions,” and give
example of each.
Held: Content-based restrictions are imposed because of
the content of the speech and are, therefore, subject to
the clear-and-present danger test. For example, a rule
such as that involved in Sanidad v. Comelec (181 SCRA
529 [1990]), prohibiting columnists, commentators, and
announcers from campaigning either for or against an
issue in a plebiscite must have compelling reason to
support it, or it will not pass muster under strict scrutiny.
These restrictions are censorial and therefore they bear a
heavy presumption of constitutional invalidity. In addition,
they will be tested for possible overbreadth and
vagueness.
Content-neutral restrictions, on the other hand, like Sec.
11(b) of R.A. No. 6646, which prohibits the sale or
donation of print space and air time to political candidates
during the campaign period, are not concerned with the
content of the speech. These regulations need only a
substantial governmental interest to support them. A
deferential standard of review will suffice to test their
validity. The clear-and-present danger rule is
inappropriate as a test for determining the constitutional
validity of laws, like Sec. 11(b) of R.A. No. 6646, which
are not concerned with the content of political ads but
only with their incidents. To apply the clear-and-present
danger test to such regulatory measures would be like
using a sledgehammer to drive a nail when a regular
hammer is all that is needed.
The test for this difference in the level of justification for
the restriction of speech is that 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 B.P. Blg. 880,
the Public Assembly Act of 1985. (Osmena v.
COMELEC, 288 SCRA 447, March 31, 1998
[Mendoza])
183. Does the conduct of exit poll by ABS CBN present
a clear and present danger of destroying the credibility
and integrity of the electoral process as it has the
tendency to sow confusion considering the randomness
of selecting interviewees, which further makes the exit
poll highly unreliable, to justify the promulgation of a
Comelec resolution prohibiting the same?
Held: Such arguments are purely speculative and clearly
untenable. First, by the very nature of a survey, the
interviewees or participants are selected at random, so
that the results will as much as possible be representative
or reflective of the general sentiment or view of the
community or group polled. Second, the survey result is
not meant to replace or be at par with the official Comelec
count. It consists merely of the opinion of the polling
group as to who the electorate in general has probably
voted for, based on the limited data gathered from polled
individuals. Finally, not at stake are the credibility and
the integrity of the elections, which are exercises that are
separate and independent from the exit polls. The
holding and the reporting of the results of exit polls
cannot undermine those of the elections, since the former
is only part of the latter. If at all, the outcome of one can
only be indicative of the other.
The COMELEC’s concern with the possible
noncommunicative effect of exit polls – disorder and
confusion in the voting centers – does not justify a total
ban on them. Undoubtedly, the assailed Comelec
Resolution is too broad, since its application is without
qualification as to whether the polling is disruptive or not.
There is no showing, however, that exit polls or the
means to interview voters cause chaos in voting centers.
Neither has any evidence been presented proving that the
presence of exit poll reporters near an election precinct
tends to create disorder or confuse the voters.
Moreover, the prohibition incidentally prevents the
collection of exit poll data and their use for any purpose.
The valuable information and ideas that could be derived
from them, based on the voters’ answers to the survey
questions will forever remain unknown and unexplored.
Unless the ban is restrained, candidates, researchers,
social scientists and the electorate in general would be
deprived of studies on the impact of current events and
of election-day and other factors on voters’ choices.
The absolute ban imposed by the Comelec cannot,
therefore, be justified. It does not leave open any
alternative channel of communication to gather the type
of information obtained through exit polling. On the other
hand, there are other valid and reasonable ways and
means to achieve the Comelec end of avoiding or
minimizing disorder and confusion that may be brought
about by exit surveys.
With foregoing premises, it is concluded that the interest
of the state in reducing disruption is outweighed by the
drastic abridgment of the constitutionally guaranteed
rights of the media and the electorate. Quite the
contrary, instead of disrupting elections, exit polls –
properly conducted and publicized – can be vital tools for
the holding of honest, orderly, peaceful and credible
elections; and for the elimination of election-fixing, fraud
and other electoral ills. (ABS-CBN Broadcasting
Corporation v. COMELEC, G.R. No. 133486, Jan. 28,
2000, En Banc [Panganiban])
184. Section 5.4 of R.A. No. 9006 (Fair Election Act)
which provides: “Surveys affecting national candidates
shall not be published fifteen (15) days before an election
and surveys affecting local candidates shall not be
published seven (7) days before an election.” The Social
Weather Stations, Inc. (SWS), a private non-stock, non-
profit social research institution conducting surveys in
various fields; and Kamahalan Publishing Corporation,
publisher of the Manila Standard, a newspaper of general
circulation, which features newsworthy items of
information including election surveys, challenged the
constitutionality of aforesaid provision as it constitutes a
prior restraint on the exercise of freedom of speech
without any clear and present danger to justify such
restraint. Should the challenge be sustained?
Held: For reason hereunder given, we hold that Section
5.4 of R.A. No. 9006 constitutes an unconstitutional
abridgment of freedom of speech, expression, and the
press.
To be sure, Section 5.4 lays a prior restraint on freedom
of speech, expression, and the press by prohibiting the
publication of election survey results affecting candidates
within the prescribed periods of fifteen (15) days
immediately preceding a national election and seven (7)
days before a local election. Because of the preferred
status of the constitutional rights of speech, expression,
and the press, such a measure is vitiated by a weighty
presumption of invalidity. Indeed, “any system of prior
restraints of expression comes to this Court bearing a
heavy presumption against its constitutional validity x x x.
The Government ‘thus carries a heavy burden of showing
justification for the enforcement of such restraint.’” There
is thus a reversal of the normal presumption of validity
that inheres in every legislation.
Nor may it be argued that because of Art. IX-C, Sec. 4 of
the Constitution, which gives the Comelec supervisory
power to regulate the enjoyment or utilization of franchise
for the operation of media of communication, no
presumption of invalidity attaches to a measure like Sec.
5.4. For as we have pointed out in sustaining the ban on
media political advertisements, the grant of power to the
Comelec under Art. IX-C, Sec. 4 is limited to ensuring
“equal opportunity, time, space, and the right to reply” as
well as uniform and reasonable rates of charges for the
use of such media facilities for “public information
campaigns and forums among candidates.”
Xxx
Nor can the ban on election surveys be justified on the
ground that there are other countries x x x which similarly
impose restrictions on the publication of election surveys.
At best this survey is inconclusive. It is noteworthy that
in the United States no restriction on the publication of
election survey results exists. It cannot be argued that
this is because the United States is a mature democracy.
Neither are there laws imposing an embargo on survey
results, even for a limited period, in other countries. X x
x.
What test should then be employed to determine the
constitutional validity of Section 5.4? The United States
Supreme Court x x x held in United States v. O’ Brien:
[A] government regulation is sufficiently justified (1) if it
is within the constitutional power of the government; (2)
if it furthers an important or substantial governmental
interest; (3) if the governmental interest is unrelated to
the suppression of free expression; and (4) if the
incidental restriction on alleged First Amendment
freedoms (of speech, expression and press) is no greater
than is essential to the furtherance of that interest (391
U.S. 367, 20 L. Ed. 2d 692, 680 [1968] [bracketed
numbers added]).
This is so far the most influential test for distinguishing
content-based from content-neutral regulations and is
said to have “become canonical in the review of such
laws.” It is noteworthy that the O’ Brien test has been
applied by this Court in at least two cases (Adiong v.
Comelec, 207 SCRA 712 [1992]; Osmena v. Comelec,
supra.).
Under this test, even if a law furthers an important or
substantial governmental interest, it should be invalidated
if such governmental interest is “not unrelated to the
suppression of free expression.” Moreover, even if the
purpose is unrelated to the suppression of free speech,
the law should nevertheless be invalidated if the
restriction on freedom of expression is greater than is
necessary to achieve the governmental purpose in
question.
Our inquiry should accordingly focus on these two
considerations as applied to Sec. 5.4.
First. Sec. 5.4 fails to meet criterion (3) of the O’ Brien
test because the causal connection of expression to the
asserted governmental interest makes such interest “not
unrelated to the suppression of free expression.” By
prohibiting the publication of election survey results
because of the possibility that such publication might
undermine the integrity of the election, Sec. 5.4 actually
suppresses a whole class of expression, while allowing the
expression of opinion concerning the same subject matter
by newspaper columnists, radio and TV commentators,
armchair theorists, and other opinion makers. In effect,
Sec. 5.4 shows a bias for a particular subject matter, if
not viewpoint, by preferring personal opinion to statistical
results. The constitutional guarantee of freedom of
expression means that “the government has no power to
restrict expression because of its message, its ideas, its
subject matter, or its contents.” The inhibition of speech
should be upheld only if the expression falls within one of
the few unprotected categories dealt with in Chaplinsky
v. New Hampshire (315 U.S. 568, 571-572, 86 L. Ed.
1031, 1035 [1942]), thus:
There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of
which have never been thought to raise any Constitutional
problem. These include the lewd and obscene, the
profane, the libelous, and the insulting or ‘fighting’ words
– those which by their very utterance inflict injury or tend
to incite an immediate breach of the peace. [S]uch
utterances are no essential part of any exposition of ideas,
and are of such slight social value as a step to truth that
any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.
Nor is there justification for the prior restraint which Sec.
5.4 lays on protected speech. In Near v. Minnesota (283
U.S. 697, 715-716, 75 l. Ed. 1357, 1367 [1931]), it was
held:
[T]he protection even as to previous restraint is not
absolutely unlimited. But the limitation has been
recognized only in exceptional cases x x x. No one would
question but that a government might prevent actual
obstruction to its recruiting service or the publication of
the sailing dates of transports or the number and location
of troops. On similar grounds, the primary requirements
of decency may be enforced against obscene publications.
The security of the community life may be protected
against incitements to acts of violence and the overthrow
by force of orderly government x x x.
Thus, x x x the prohibition imposed by Sec. 5.4 cannot be
justified on the ground that it is only for a limited period
and is only incidental. The prohibition may be for a
limited time, but the curtailment of the right of expression
is direct, absolute, and substantial. It constitutes a total
suppression of a category of speech and is not made less
so because it is only for a period of fifteen (15) days
immediately before a national election and seven (7) days
immediately before a local election.
This sufficiently distinguishes Sec. 5.4 from R.A. No. 6646,
Sec. 11(b), which this Court found to be valid in National
Press Club v. Comelec (supra.), and Osmena v. Comelec
(supra.). For the ban imposed by R.A. No. 6646, Sec.
11(b) is not only authorized by a specific constitutional
provision (Art. IX-C, Sec. 4), but it also provided an
alternative so that, as this Court pointed out in Osmena,
there was actually no ban but only a substitution of media
advertisements by the Comelec space, and Comelec hour.
Second. Even if the governmental interest sought to be
promoted is unrelated to the suppression of speech and
the resulting restriction of free expression is only
incidental, Sec. 5.4 nonetheless fails to meet criterion (4)
of the O’ Brien test, namely, that the restriction be not
greater than is necessary to further the governmental
interest. As already stated, Sec. 5.4. aims at the
prevention of last-minute pressure on voters, the creation
of bandwagon effect, “junking” of weak or “losing”
candidates, and resort to the form of election cheating
called “dagdag-bawas.” Praiseworthy as these aims of
the regulation might be, they cannot be attained at the
sacrifice of the fundamental right of expression, when
such aim can be more narrowly pursued by punishing
unlawful acts, rather than speech because of
apprehension that such speech creates the danger of
such evils. Thus, under the Administrative Code of 1987
(Bk. V, Tit. I, Subtit. C, Ch 1, Sec. 3[1]), the Comelec is
given the power:
To stop any illegal activity, or confiscate, tear down, and
stop any unlawful, libelous, misleading or false election
propaganda, after due notice and hearing.
This is surely a less restrictive means than the prohibition
contained in Sec. 5.4. Pursuant to this power of the
Comelec, it can confiscate bogus survey results calculated
to mislead voters. Candidates can have their own surveys
conducted. No right of reply can be invoked by others.
No principle of equality is involved. It is a free market to
which each candidate brings his ideas. As for the purpose
of the law to prevent bandwagon effects, it is doubtful
whether the Government can deal with this natural-
enough tendency of some voters. Some voters want to
be identified with the “winners.” Some are susceptible to
the herd mentality. Can these be legitimately prohibited
by suppressing the publication of survey results which are
a form of expression? It has been held that “[mere]
legislative preferences or beliefs respecting matters of
public convenience may well support regulation directed
at other personal activities, but be insufficient to justify
such as diminishes the exercise of rights so vital to the
maintenance of democratic institutions.”
To summarize then, we hold that Sec. 5.4. is invalid
because (1) it imposes a prior restraint on the freedom of
expression, (2) it is a direct and total suppression of a
category of expression even though such suppression is
only for a limited period, and (3) the governmental
interest sought to be promoted can be achieved by means
other than the suppression of freedom of expression.
(Social Weather Stations, Inc., v. COMELEC, G.R.
No. 147571, May 5, 2001, En Banc [Mendoza])
185. Discuss the "doctrine of fair comment" as a valid
defense in an action for libel or slander.
Held: Fair commentaries on matters of public interest
are privileged and constitute a valid defense in an action
for libel or slander. The doctrine of fair comment means
that while in general every discreditable imputation
publicly made is deemed false, because every man is
presumed innocent until his guilt is judicially proved, and
every false imputation is deemed malicious, nevertheless,
when the discreditable imputation is directed against a
public person in his public capacity, it is not necessarily
actionable. In order that such discreditable imputation to
a public official may be actionable, it must either be a
false allegation of fact or a comment based on a false
supposition. If the comment is an expression of opinion,
based on established facts, then it is immaterial that the
opinion happens to be mistaken, as long as it might
reasonably be inferred from the facts. (Borjal v. CA,
301 SCRA 1, Jan. 14, 1999, 2nd Div. [Bellosillo])
186. What is the “raison d’etre” for the New York
Times v. Sullivan (376 US 254) holding that honest
criticisms on the conduct of public officials and public
figures are insulated from libel judgments?
Held: The guarantees of freedom of speech and press
prohibit a public official or public figure from recovering
damages for a defamatory falsehood relating to his official
conduct unless he proves that the statement was made
with actual malice, i.e., with knowledge that it was false
or with reckless disregard of whether it was false or not.
The raison d’etre for the New York Times doctrine was
that to require critics of official conduct to guarantee the
truth of all their factual assertions on pain of libel
judgments would lead to self-censorship, since would-be
critics would be deterred from voicing out their criticisms
even if such were believed to be true, or were in fact true,
because of doubt whether it could be proved or because
of fear of the expense of having to prove it . (Borjal v.
CA, 301 SCRA 1, Jan. 14, 1999, 2nd Div. [Bellosillo])
187. Who is a “public figure,” and therefore subject to
public comment?
Held: [W]e deem private respondent a public figure
within the purview of the New York Times ruling. At any
rate, we have also defined “public figure” in Ayers
Production Pty., Ltd. v. Capulong (G.R. Nos. 82380 and
82398, 29 April 1988, 160 SCRA 861) as –
X x x a person who, by his accomplishments, fame, mode
of living, or by adopting a profession or calling which gives
the public a legitimate interest in his doings, his affairs
and his character, has become a ‘public personage.’ He
is, in other words, a celebrity. Obviously, to be included
in this category are those who have achieved some
degree of reputation by appearing before the public, as in
the case of an actor, a professional baseball player, a
pugilist, or any other entertainer. The list is, however,
broader than this. It includes public officers, famous
inventors and explorers, war heroes and even ordinary
soldiers, infant prodigy, and no less a personage than the
Great Exalted Ruler of the lodge. It includes, in short,
anyone who has arrived at a position where the public
attention is focused upon him as a person.
The FNCLT (First National Conference on Land
Transportation) was an undertaking infused with public
interest. It was promoted as a joint project of the
government and the private sector, and organized by top
government officials and prominent businessmen. For
this reason, it attracted media mileage and drew public
attention not only to the conference itself but to the
personalities behind as well. As its Executive Director and
spokesman, private respondent consequently assumed
the status of a public figure.
But even assuming ex-gratia argumenti that private
respondent, despite the position he occupied in the
FNCLT, would not qualify as a public figure, it does not
necessarily follow that he could not validly be the subject
of a public comment even if he was not a public official or
at least a public figure, for he could be, as long as he was
involved in a public issue. If a matter is a subject of public
or general interest, it cannot suddenly become less so
merely because a private individual is involved or because
in some sense the individual did not voluntarily choose to
become involved. The public’s primary interest is in the
event; the public focus is on the conduct of the participant
and the content, effect and significance of the conduct,
not the participant’s prior anonymity or notoriety.
(Borjal v. CA, 301 SCRA 1, Jan. 14, 1999, 2nd Div.
[Bellosillo])
188. The question for determination in this case is the
liability for libel of a citizen who denounces a barangay
official for misconduct in office. The Regional Trial Court
of Manila x x x found petitioner guilty x x x on the ground
that petitioner failed to prove the truth of the charges and
that he was “motivated by vengeance in uttering the
defamatory statement.”
Held: The decision appealed from should be reversed.
In denouncing the barangay chairman in this case,
petitioner and the other residents of the Tondo Foreshore
Area were not only acting in their self-interest but
engaging in the performance of a civic duty to see to it
that public duty is discharged faithfully and well by those
on whom such duty is incumbent. The recognition of this
right and duty of every citizen in a democracy is
inconsistent with any requirement placing on him the
burden of proving that he acted with good motives and
for justifiable ends.
For that matter, even if the defamatory statement is false,
no liability can attach if it relates to official conduct, unless
the public official concerned proves that the statement
was made with actual malice – that is, with knowledge
that it was false or with reckless disregard of whether it
was false or not. This is the gist of the ruling in the
landmark case of New York Times v. Sullivan (376 U.S.
254, 11 L. Ed. 2d [1964]. For a fascinating account of
this case, see Anthony Lewis, Make No Law – The Sullivan
Case and the First Amendment [1991]), which this Court
has cited with approval in several of its own decisions
(Lopez v. Court of Appeals, 145 Phil. 219 [1970], others
omitted). This is the rule of “actual malice.” In this case,
the prosecution failed to prove not only that the charges
made by petitioner were false but also that petitioner
made them with knowledge of their falsity or with reckless
disregard of whether they were false or not.
A rule placing on the accused the burden of showing the
truth of allegations of official misconduct and/or good
motives and justifiable ends for making such allegations
would not only be contrary to Art. 361 of the Revised
Penal Code. It would, above all, infringe on the
constitutionally guaranteed freedom of expression. Such
a rule would deter citizens from performing their duties
as members of a self-governing community. Without free
speech and assembly, discussions of our most abiding
concerns as a nation would be stifled. As Justice Brandies
has said, “public discussion is a political duty” and the
“greatest menace to freedom is an inert people.”
(Whitney v. California, 247 U.S. 357, 375, 71 L. Ed. 1095,
1105 [1927] [concurring]) (Vasquez v. Court of
Appeals, 314 SCRA 460, Sept. 15, 1999, En Banc
[Mendoza])
189. The Office of the Mayor of Las Pinas refused to
issue permit to petitioners to hold rally a rally in front of
the Justice Hall of Las Pinas on the ground that it was
prohibited under Supreme Court En Banc Resolution
dated July 7,1998 in A.M. No. 98-7-02-SC, entitled, "Re:
Guidelines on the Conduct of Demonstrations, Pickets,
Rallies and Other Similar Gatherings in the Vicinity of the
Supreme Court and All Other Courts." Petitioners thus
initiated the instant proceedings. They submit that the
Supreme Court gravely abused its discretion and/or acted
without or in excess of jurisdiction in promulgating those
guidelines.
Held: We shall first dwell on the critical argument made
by petitioners that the rules constitute an abridgment of
the people's aggregate rights of free speech, free
expression, peaceful assembly and petitioning
government for redress of grievances citing Sec. 4, Article
III of the 1987 Constitution that "no law shall be passed
abridging" them.
It is true that the safeguarding of the people's freedom of
expression to the end that individuals may speak as they
think on matters vital to them and that falsehoods may
be exposed through the processes of education and
discussion, is essential to free government. But freedom
of speech and expression despite its indispensability has
its limitations. It has never been understood as the
absolute right to speak whenever, however, and
wherever one pleases, for the manner, place, and time of
public discussion can be constitutionally controlled . [T]he
better policy is not liberty untamed but liberty regulated
by law where every freedom is exercised in accordance
with law and with due regard for the rights of others .
Conventional wisdom tells us that the realities of life in a
complex society preclude an absolutist interpretation of
freedom of expression where it does not involve pure
speech but speech plus physical actions like picketing.
There are other significant societal values that must be
accommodated and when they clash, they must all be
weighed with the promotion of the general welfare of the
people as the ultimate objective. In balancing these
values, this Court has accorded freedom of expression a
preferred position in light of its more comparative
importance. Hence, our rulings now musty in years hold
that only the narrowest time, place and manner
regulations that are specifically tailored to serve an
important governmental interest may justify the
application of the balancing of interests test in derogation
of the people's right of free speech and expression.
Where said regulations do not aim particularly at the evils
within the allowable areas of state control but, on the
contrary, sweep within their ambit other activities as to
operate as an overhanging threat to free discussion, or
where upon their face they are so vague, indefinite, or
inexact as to permit punishment of the fair use of the right
of free speech, such regulations are void.
Prescinding from this premise, the Court reiterates that
judicial independence and the fair and orderly
administration of justice constitute paramount
governmental interests that can justify the regulation of
the public's right of free speech and peaceful assembly in
the vicinity of courthouses. In the case of In Re: Emil P.
Jurado, the Court pronounced in no uncertain terms that:
"x x x freedom of expression needs on occasion to be
adjusted to and accommodated with the requirements of
equally important public interests. One of these
fundamental public interests is the maintenance of the
integrity and orderly functioning of the administration of
justice. There is no antinomy between free expression
and the integrity of the system of administering justice.
For the protection and maintenance of freedom of
expression itself can be secured only within the context
of a functioning and orderly system of dispensing justice,
within the context, in other words, of viable independent
institutions for delivery of justice which are accepted by
the general community. x x x" (In Re: Emil P. Jurado,
243 SCRA 299, 323-324 [1995])
It is sadly observed that judicial independence and the
orderly administration of justice have been threatened not
only by contemptuous acts inside, but also by irascible
demonstrations outside, the courthouses. They wittingly
or unwittingly, spoil the ideal of sober, non-partisan
proceedings before a cold and neutral judge. Even in the
United States, a prohibition against picketing and
demonstrating in or near courthouses, has been ruled as
valid and constitutional notwithstanding its limiting effect
on the exercise by the public of their liberties. X x x
The administration of justice must not only be fair but
must also appear to be fair and it is the duty of this Court
to eliminate everything that will diminish if not destroy
this judicial desideratum. To be sure, there will be
grievances against our justice system for there can be no
perfect system of justice but these grievances must be
ventilated through appropriate petitions, motions or other
pleadings. Such a mode is in keeping with the respect
due to the courts as vessels of justice and is necessary if
judges are to dispose their business in a fair fashion. It
is the traditional conviction of every civilized society that
courts must be insulated from every extraneous influence
in their decisions. The facts of a case should be
determined upon evidence produced in court, and should
be uninfluenced by bias, prejudice or sympathies. (In Re:
Petition to Annul En Banc Resolution A.M. 98-7-02-
SC - Ricardo C. Valmonte and Union of Lawyers and
Advocates for Transparency in Government
[ULAT], G.R. No. 134621, Sept. 29, 1998)
190. Did the Supreme Court commit an act of judicial
legislation in promulgating En Banc Resolution A.M. 98-7-
02-SC, entitled, "Re: Guidelines on the Conduct of
Demonstrations, Pickets, Rallies and Other Similar
Gatherings in the Vicinity of the Supreme Court and All
Other Courts?"
Held: Petitioners also claim that this Court committed an
act of judicial legislation in promulgating the assailed
resolution. They charge that this Court amended
provisions of Batas Pambansa (B.P.) Blg. 880, otherwise
known as "the Public Assembly Act," by converting the
sidewalks and streets within a radius of two hundred
(200) meters from every courthouse from a public forum
place into a "no rally" zone. Thus, they accuse this Court
of x x x violating the principle of separation of powers.
We reject these low watts arguments. Public places
historically associated with the free exercise of expressive
activities, such as streets, sidewalks, and parks, are
considered, without more, to be public fora. In other
words, it is not any law that can imbue such places with
the public nature inherent in them. But even in such
public fora, it is settled jurisprudence that the government
may restrict speech plus activities and enforce reasonable
time, place, and manner regulations as long as the
restrictions are content-neutral, are narrowly tailored to
serve a significant governmental interest, and leave open
ample alternative channels of communication.
Contrary therefore to petitioners’ impression, B.P. Blg.
880 did not establish streets and sidewalks, among other
places, as public fora. A close look at the law will reveal
that it in fact prescribes reasonable time, place, and
manner regulations. Thus, it requires a written permit for
the holding of public assemblies in public places subject,
even, to the right of the mayor to modify the place and
time of the public assembly, to impose a rerouting of the
parade or street march, to limit the volume of loud
speakers or sound system and to prescribe other
appropriate restrictions on the conduct of the public
assembly.
The existence of B.P. Blg. 880, however, does not
preclude this Court from promulgating rules regulating
conduct of demonstrations in the vicinity of courts to
assure our people of an impartial and orderly
administration of justice as mandated by the Constitution.
To insulate the judiciary from mob pressure, friendly or
otherwise, and isolate it from public hysteria, this Court
merely moved away the situs of mass actions within a
200-meter radius from every courthouse. In fine, B.P.
Blg. 880 imposes general restrictions to the time, place
and manner of conducting concerted actions. On the
other hand, the resolution of this Court regulating
demonstrations adds specific restrictions as they involve
judicial independence and the orderly administration of
justice. There is thus no discrepancy between the two
sets of regulatory measures. Simply put, B.P. Blg. 880
and the assailed resolution complement each other. We
so hold following the rule in legal hermeneutics that an
apparent conflict between a court rule and a statutory
provision should be harmonized and both should be given
effect if possible. (In Re: Petition to Annul En Banc
Resolution A.M. 98-7-02-SC - Ricardo C. Valmonte
and Union of Lawyers and Advocates for
Transparency in Government [ULAT], G.R. No.
134621, Sept. 29, 1998)
191. Should live media coverage of court proceedings
be allowed?
Held: The propriety of granting or denying permission to
the media to broadcast, record, or photograph court
proceedings involves weighing the constitutional
guarantees of freedom of the press, the right of the public
to information and the right to public trial, on the one
hand, and on the other hand, the due process rights of
the defendant and the inherent and constitutional power
of the courts to control their proceedings in order to
permit the fair and impartial administration of justice.
Collaterally, it also raises issues on the nature of the
media, particularly television and its role in society, and
of the impact of new technologies on law.
The records of the Constitutional Commission are bereft
of discussion regarding the subject of cameras in the
courtroom. Similarly, Philippine courts have not had the
opportunity to rule on the question squarely.
While we take notice of the September 1990 report of the
United States Judicial Conference Ad Hoc Committee on
Cameras in the Courtroom, still the current rule obtaining
in the Federal Courts of the United States prohibits the
presence of television cameras in criminal trials. Rule 53
of the Federal Rules of Criminal Procedure forbids the
taking of photographs during the progress of judicial
proceedings or radio broadcasting of such proceedings
from the courtroom. A trial of any kind or in any court is
a matter of serious importance to all concerned and
should not be treated as a means of entertainment. To
so treat it deprives the court of the dignity which pertains
to it and departs from the orderly and serious quest for
truth for which our judicial proceedings are formulated.
Courts do not discriminate against radio and television
media by forbidding the broadcasting or televising of a
trial while permitting the newspaper reporter access to
the courtroom, since a television or news reporter has the
same privilege, as the news reporter is not permitted to
bring his typewriter or printing press into the courtroom.
In Estes v. Texas (381 U.S. 532), the United States
Supreme Court held that television coverage of judicial
proceedings involves an inherent denial of due process
rights of a criminal defendant. Voting 5-4, the Court
through Mr. Justice Clark, identified four (4) areas of
potential prejudice which might arise from the impact of
the cameras on the jury, witnesses, the trial judge and
the defendant. The decision in part pertinently stated:
"Experience likewise has established the prejudicial effect
of telecasting on witnesses. Witnesses might be
frightened, play to the camera, or become nervous. They
are subject to extraordinary out-of-court influences which
might affect their testimony. Also, telecasting not only
increases the trial judge's responsibility to avoid actual
prejudice to the defendant; it may as well affect his own
performance. Judges are human beings also and are
subject to the same psychological reactions as laymen.
For the defendant, telecasting is a form of mental
harassment and subjects him to excessive public
exposure and distracts him from the effective
presentation of his defense.
"The television camera is a powerful weapon which
intentionally or inadvertently can destroy an accused and
his case in the eyes of the public."
Representatives of the press have no special standing to
apply for a writ of mandate to compel a court to permit
them to attend a trial, since within the courtroom a
reporter's constitutional rights are no greater than those
of any other member of the public. Massive intrusion of
representatives of the news media into the trial itself can
so alter or destroy the constitutionally necessary judicial
atmosphere and decorum that the requirements of
impartiality imposed by due process of law are denied the
defendant and a defendant in a criminal proceeding
should not be forced to run a gauntlet of reporters and
photographers each time he enters or leaves the
courtroom.
Considering the prejudice it poses to the defendant's right
to due process as well as to the fair and orderly
administration of justice, and considering further that the
freedom of the press and the right of the people to
information may be served and satisfied by less
distracting, degrading and prejudicial means, live radio
and television coverage of court proceedings shall not be
allowed. Video footages of court hearings for news
purposes shall be restricted and limited to shots of the
courtroom, the judicial officers, the parties and their
counsel taken prior to the commencement of official
proceedings. No video shots or photographs shall be
permitted during the trial proper. (Supreme Court En
Banc Resolution Re: Live TV and Radio Coverage of
the Hearing of President Corazon C. Aquino's Libel
Case, dated Oct. 22, 1991)
192. Should the Court allow live media coverage of the
anticipated trial of the plunder and other criminal cases
filed against former President Joseph E. Estrada before
the Sandiganbayan in order “to assure the public of full
transparency in the proceedings of an unprecedented
case in our history” as requested by the Kapisanan ng
mga Brodkaster ng Pilipinas?
Held: The propriety of granting or denying the instant
petition involve the weighing out of the constitutional
guarantees of freedom of the press and the right to public
information, on the one hand, and the fundamental rights
of the accused, on the other hand, along with the
constitutional power of a court to control its proceedings
in ensuring a fair and impartial trial.
When these rights race against one another,
jurisprudence tells us that the right of the accused must
be preferred to win.
With the possibility of losing not only the precious liberty
but also the very life of an accused, it behooves all to
make absolutely certain that an accused receives a verdict
solely on the basis of a just and dispassionate judgment,
a verdict that would come only after the presentation of
credible evidence testified to by unbiased witnesses
unswayed by any kind of pressure, whether open or
subtle, in proceedings that are devoid of histrionics that
might detract from its basic aim to ferret veritable facts
free from improper influence, and decreed by a judge with
an unprejudiced mind, unbridled by running emotions or
passions.
Due process guarantees the accused a presumption of
innocence until the contrary is proved in a trial that is not
lifted above its individual settings nor made an object of
public’s attention and where the conclusions reached are
induced not by any outside force or influence but only by
evidence and argument given in open court, where fitting
dignity and calm ambiance is demanded.
Witnesses and judges may very well be men and women
of fortitude, able to thrive in hardy climate, with every
reason to presume firmness of mind and resolute
endurance, but it must also be conceded that “television
can work profound changes in the behavior of the people
it focuses on.” Even while it may be difficult to quantify
the influence, or pressure that media can bring to bear on
them directly and through the shaping of public opinion,
it is a fact, nonetheless, that, indeed, it does so in so many
ways and in varying degrees. The conscious or
unconscious effect that such a coverage may have on the
testimony of witnesses and the decision of judges cannot
be evaluated but, it can likewise be said, it is not at all
unlikely for a vote of guilt or innocence to yield to it . It
might be farcical to build around them an impregnable
armor against the influence of the most powerful media
of public opinion.
To say that actual prejudice should first be present would
leave to near nirvana the subtle threats to justice that a
disturbance of the mind so indispensable to the calm and
deliberate dispensation of justice can create . The effect
of television may escape the ordinary means of proof, but
it is not far-fetched for it to gradually erode our basal
conception of a trial such as we know it now.
An accused has a right to a public trial but it is a right that
belongs to him, more than anyone else, where his life or
liberty can be held critically in balance. A public trial aims
to ensure that he is fairly dealt with and would not be
unjustly condemned and that his rights are not
compromised in secret conclaves of long ago. A public
trial is not synonymous with publicized trial; it only implies
that the court doors must be open to those who wish to
come, sit in the available seats, conduct themselves with
decorum and observe the trial process. In the
constitutional sense, a courtroom should have enough
facilities for a reasonable number of the public to observe
the proceedings, not too small as to render the openness
negligible and not too large as to distract the trial
participants from their proper functions, who shall then
be totally free to report what they have observed during
the proceedings.
The courts recognize the constitutionally embodied
freedom of the press and the right to public information.
It also approves of media’s exalted power to provide the
most accurate and comprehensive means of conveying
the proceedings to the public and in acquainting the
public with the judicial process in action; nevertheless,
within the courthouse, the overriding consideration is still
the paramount right of the accused to due process which
must never be allowed to suffer diminution in its
constitutional proportions. Justice Clark thusly
pronounced, “while a maximum freedom must be allowed
the press in carrying out the important function of
informing the public in a democratic society, its exercise
must necessarily be subject to the maintenance of
absolute fairness in the judicial process.”
Xxx
The Integrated Bar of the Philippines x x x expressed its
own concern on the live television and radio coverage of
the criminal trials of Mr. Estrada; to paraphrase: Live
television and radio coverage can negate the rule on
exclusion of witnesses during the hearings intended to
assure a fair trial; at stake in the criminal trial is not only
the life and liberty of the accused but the very credibility
of the Philippine criminal justice system, and live
television and radio coverage of the trial could allow the
“hooting throng” to arrogate unto themselves the task of
judging the guilt of the accused, such that the verdict of
the court will be acceptable only if popular; and live
television and radio coverage of the trial will not subserve
the ends of justice but will only pander to the desire for
publicity of a few grandstanding lawyers.
Xxx
Unlike other government offices, courts do not express
the popular will of the people in any sense which, instead,
are tasked to only adjudicate controversies on the basis
of what alone is submitted before them. A trial is not a
free trade of ideas. Nor is a competing market of
thoughts the known test of truth in a courtroom. (Re:
Request Radio-TV coverage of the Trial in the
Sandiganbayan of the Plunder Cases against the
former President Joseph E. Estrada, A.M. No. 01-4-
03-SC, June 29, 2001, En Banc [Vitug])
Freedom of Religion
193. Discuss why the Gerona ruling (justifying the
expulsion from public schools of children of Jehovah’s
Witnesses who refuse to salute the flag and sing the
national anthem during flag ceremony as prescribed by
the Flag Salute Law) should be abandoned.
Held: Our task here is extremely difficult, for the 30-year
old decision of this court in Gerona upholding the flag
salute law and approving the expulsion of students who
refuse to obey it, is not lightly to be trifled with.
It is somewhat ironic however, that after the Gerona
ruling had received legislative cachet by its incorporation
in the Administrative Code of 1987, the present Court
believes that the time has come to reexamine it. The idea
that one may be compelled to salute the flag, sing the
national anthem, and recite the patriotic pledge, during a
flag ceremony on pain of being dismissed from one’s job
or of being expelled from school, is alien to the conscience
of the present generation of Filipinos who cut their teeth
on the Bill of Rights which guarantees their rights to free
speech (The flag salute, singing the national anthem and
reciting the patriotic pledge are all forms of utterances.)
and the free exercise of religious profession and worship.
Religious freedom is a fundamental right which is entitled
to the highest priority and the amplest protection among
human rights, for it involves the relationship of man to his
Creator (Chief Justice Enrique M. Fernando’s separate
opinion in German v. Barangan, 135 SCRA 514, 530-531).
“The right to religious profession and worship has a two-
fold aspect, viz., freedom to believe and freedom to act
on one’s belief. The first is absolute as long as the belief
is confined within the realm of thought. The second is
subject to regulation where the belief is translated into
external acts that affect the public welfare” (J. Cruz,
Constitutional Law, 1991 Ed., pp. 176-177).
Petitioners stress x x x that while they do not take part in
the compulsory flag ceremony, they do not engage in
“external acts” or behavior that would offend their
countrymen who believe in expressing their love of
country through the observance of the flag ceremony.
They quietly stand at attention during the flag ceremony
to show their respect for the rights of those who choose
to participate in the solemn proceedings. Since they do
not engage in disruptive behavior, there is no warrant for
their expulsion.
“The sole justification for a prior restraint or limitation on
the exercise of religious freedom (according to the late
Chief Justice Claudio Teehankee in his dissenting opinion
in German v. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character
both grave and imminent, of a serious evil to public
safety, public morals, public health or any other legitimate
public interest, that the State has a right (and duty) to
prevent.” Absent such a threat to public safety, the
expulsion of the petitioners from the schools is not
justified.
The situation that the Court directly predicted in Gerona
that:
“[T]he flag ceremony will become a thing of the past or
perhaps conducted with very few participants, and the
time will come when we would have citizens untaught and
uninculcated in and not imbued with reverence for the
flag and love of country, admiration for national heroes,
and patriotism – a pathetic, even tragic situation, and all
because a small portion of the school population imposed
its will, demanded and was granted an exemption.”
has not come to pass. We are not persuaded that by
exempting the Jehovah’s Witnesses from saluting the
flag, singing the national anthem and reciting the patriotic
pledge, this religious group which admittedly comprises a
“small portion of the school population” will shake up our
part of the globe and suddenly produce a nation
“untaught and uninculcated in and unimbued with
reverence for the flag, patriotism, love of country and
admiration for national heroes. After all, what the
petitioners seek only is exemption from the flag
ceremony, not exclusion from the public schools where
they may study the Constitution, the democratic way of
life and form of government, and learn not only the arts,
sciences, Philippine history and culture but also receive
training for a vocation or profession and be taught the
virtues of “patriotism, respect for human rights,
appreciation for national heroes, the rights and duties of
citizenship, and moral and spiritual values (Sec. 3[2], Art.
XIV, 1987 Constitution) as part of the curricula. Expelling
or banning the petitioners from Philippine schools will
bring about the very situation that this Court had feared
in Gerona. Forcing a small religious group, through the
iron hand of the law, to participate in a ceremony that
violates their religious beliefs, will hardly be conducive to
love of country or respect for duly constituted authorities.
As Mr. Justice Jackson remarked in West Virginia v.
Barnette, 319 U.S. 624 (1943):
“x x x To believe that patriotism will not flourish if patriotic
ceremonies are voluntary and spontaneous instead of a
compulsory routine is to make an unflattering statement
of the appeal of our institutions to free minds. x x x When
they (diversity) are so harmless to others or to the State
as those we deal with here, the price is not too great. But
freedom to differ is not limited to things that do not
matter much. That would be a mere shadow of freedom.
The test of its substance is the right to differ as to things
that touch the heart of the existing order.”
“Furthermore, let it be noted that coerced unity and
loyalty even to the country, x x x – assuming that such
unity and loyalty can be attained through coercion – is not
a goal that is constitutionally obtainable at the expense of
religious liberty. A desirable end cannot be promoted by
prohibited means.” (Meyer v. Nebraska, 262 U.S. 390, 67
L. ed. 1042, 1046)
Moreover, the expulsion of members of Jehovah’s
Witnesses from the schools where they are enrolled will
violate their right as Philippine citizens, under the 1987
Constitution, to receive free education, for it is the duty
of the State to “protect and promote the right of all
citizens to quality education x x x and to make such
education accessible to all” (Sec. 1, Art. XIV).
In Victoriano v. Elizalde Rope Workers’ Union, 59 SCRA
54, 72-75, we upheld the exemption of members of the
Iglesia Ni Cristo, from the coverage of a closed shop
agreement between their employer and a union because
it would violate the teaching of their church not to join
any labor group:
“x x x It is certain that not every conscience can be
accommodated by all the laws of the land; but when
general laws conflict with scruples of conscience,
exemptions ought to be granted unless some ‘compelling
state interests’ intervenes. (Sherbert v. Berner, 374 U.S.
398, 10 L. Ed. 2d 965, 970, 83 S. Ct. 1790).”
We hold that a similar exemption may be accorded to the
Jehovah’s Witnesses with regard to the observance of the
flag ceremony out of respect for their religious beliefs,
however “bizarre” those beliefs may seem to others.
Nevertheless, their right not to participate in the flag
ceremony does not give them a right to disrupt such
patriotic exercises. Paraphrasing the warning cited by this
Court in Non v. Dames II, 185 SCRA 523, 535, while the
highest regard must be afforded their right to the free
exercise of their religion, “this should not be taken to
mean that school authorities are powerless to discipline
them” if they should commit breaches of the peace by
actions that offend the sensibilities, both religious and
patriotic, of other persons. If they quietly stand at
attention during the flag ceremony while their classmates
and teachers salute the flag, sing the national anthem and
recite the patriotic pledge, we do not see how such
conduct may possibly disturb the peace, or pose “a grave
and present danger of a serious evil to public safety,
public morals, public health or any other legitimate public
interest that the State has a right (and duty) to prevent .”
(Ebralinag v. The Division Superintendent of
Schools of Cebu, 219 SCRA 256, 269-273, March 1,
1993, En Banc [Grino-Aquino])
194. A pre-taped TV program of the Iglesia Ni Cristo
(INC) was submitted to the MTRCB for review. The latter
classified it as “rated X” because it was shown to be
attacking another religion. The INC protested by claiming
that its religious freedom is per se beyond review by the
MTRCB. Should this contention be upheld?
Held: The right to religious profession and worship has
a two-fold aspect, viz., freedom to believe and freedom
to act on one's belief. The first is absolute as long as the
belief is confined within the realm of thought. The second
is subject to regulation where the belief is translated into
external acts that affect the public welfare.
The Iglesia Ni Cristo's postulate that its religious freedom
is per se beyond review by the MTRCB should be rejected.
Its public broadcast on TV of its religious programs brings
it out of the bosom of internal belief. Television is a
medium that reaches even the eyes and ears of children.
The exercise of religious freedom can be regulated by the
State when it will bring about the clear and present
danger of a substantive evil which the State is duty-bound
to prevent, i.e., serious detriment to the more overriding
interest of public health, public morals, or public welfare.
A laissez faire policy on the exercise of religion can be
seductive to the liberal mind but history counsels the
Court against its blind adoption as religion is and
continues to be a volatile area of concern in our society
today. "For sure, we shall continue to subject any act
pinching the space for the free exercise of religion to a
heightened scrutiny but we shall not leave its rational
exercise to the irrationality of man. For when religion
divides and its exercise destroys, the State should not
stand still." (Iglesia Ni Cristo v. CA, 259 SCRA 529,
July 26, 1996 [Puno])
195. Did the MTRCB act correctly when it rated “X” the
Iglesia Ni Cristo's pre-taped TV program simply because
it was found to be "attacking" another religion?
Held: The MTRCB may disagree with the criticisms of
other religions by the Iglesia Ni Cristo but that gives it no
excuse to interdict such criticisms, however unclean they
may be. Under our constitutional scheme, it is not the
task of the State to favor any religion by protecting it
against an attack by another religion. Religious dogma
and beliefs are often at war and to preserve peace among
their followers, especially the fanatics, the establishment
clause of freedom of religion prohibits the State from
leaning towards any religion. Vis-à-vis religious
differences, the State enjoys no banquet of options.
Neutrality alone is its fixed and immovable stance. In
fine, the MTRCB cannot squelch the speech of the INC
simply because it attacks another religion. In a State
where there ought to be no difference between the
appearance and the reality of freedom of religion, the
remedy against bad theology is better theology. The
bedrock of freedom of religion is freedom of thought and
it is best served by encouraging the marketplace of
dueling ideas. When the luxury of time permits, the
marketplace of ideas demands that speech should be met
by more speech for it is the spark of opposite speech, the
heat of colliding ideas, that can fan the embers of truth.
(Iglesia Ni Cristo v. CA, 259 SCRA 529, July 26,
1996 [Puno])
196. Is solicitation for the construction of a church
covered by P.D. No. 1564 and, therefore, punishable if
done without the necessary permit for solicitation from
the DSWD?
Held: First. Solicitation of contributions for the
construction of a church is not solicitation for "charitable
or public welfare purpose" but for a religious purpose, and
a religious purpose is not necessarily a charitable or public
welfare purpose. A fund campaign for the construction
or repair of a church is not like fund drives for needy
families or victims of calamity or for the construction of a
civic center and the like. Like solicitation of subscription
to religious magazines, it is part of the propagation of
religious faith or evangelization. Such solicitation calls
upon the virtue of faith, not of charity, save as those
solicited for money or aid may not belong to the same
religion as the solicitor. Such solicitation does not engage
the philanthropic as much as the religious fervor of the
person who is solicited for contribution.
Second. The purpose of the Decree is to protect the
public against fraud in view of the proliferation of fund
campaigns for charity and other civic projects. On the
other hand, since religious fund drives are usually
conducted among those belonging to the same religion,
the need for public protection against fraudulent
solicitations does not exist in as great a degree as does
the need for protection with respect to solicitations for
charity or civic projects as to justify state regulation.
Third. To require a government permit before solicitation
for religious purpose may be allowed is to lay a prior
restraint on the free exercise of religion. Such restraint,
if allowed, may well justify requiring a permit before a
church can make Sunday collections or enforce tithing.
But in American Bible Society v. City of Manila (101 Phil.
386 [1957]), we precisely held that an ordinance requiring
payment of a license fee before one may engage in
business could not be applied to the appellant's sale of
bibles because that would impose a condition on the
exercise of a constitutional right. It is for the same reason
that religious rallies are exempted from the requirement
of prior permit for public assemblies and other uses of
public parks and streets (B.P. Blg. 880, Sec. 3[a]). To
read the Decree, therefore, as including within its reach
solicitations for religious purposes would be to construe it
in a manner that it violates the Free Exercise of Religion
Clause of the Constitution x x x. (Concurring Opinion,
Mendoza, V.V., J., in Centeno v. Villalon-Pornillos,
236 SCRA 197, Sept. 1, 1994)
197. What is a purely ecclesiastical affair to which the
State can not meddle?
Held: An ecclesiastical affair is “one that concerns
doctrine, creed, or form of worship of the church, or the
adoption and enforcement within a religious association
of needful laws and regulations for the government of the
membership, and the power of excluding from such
associations those deemed not worthy of membership.”
Based on this definition, an ecclesiastical affair involves
the relationship between the church and its members and
relate to matters of faith, religious doctrines, worship and
governance of the congregation. To be concrete,
examples of this so-called ecclesiastical affairs to which
the State cannot meddle are proceedings for
excommunication, ordinations of religious ministers,
administration of sacraments and other activities with
attached religious significance. (Pastor Dionisio V.
Austria v. NLRC, G.R. No. 124382, Aug. 16, 1999,
1st Div. [Kapunan])

198. Petitioner is a religious minister of the Seventh
Day Adventist (SDA). He was dismissed because of
alleged misappropriation of denominational funds, willful
breach of trust, serious misconduct, gross and habitual
neglect of duties and commission of an offense against
the person of his employer’s duly authorized
representative. He filed an illegal termination case
against the SDA before the labor arbiter. The SDA filed a
motion to dismiss invoking the doctrine of separation of
Church and State. Should the motion be granted?
Held: Where what is involved is the relationship of the
church as an employer and the minister as an employee
and has no relation whatsoever with the practice of faith,
worship or doctrines of the church, i.e., the minister was
not excommunicated or expelled from the membership of
the congregation but was terminated from employment,
it is a purely secular affair. Consequently, the suit may
not be dismissed invoking the doctrine of separation of
church and the state. (Pastor Dionisio V. Austria v.
NLRC, G.R. No. 124382, Aug. 16, 1999, 1st Div.
[Kapunan])
The Right of the People to Information on Matters
of Public Concern
199. Discuss the scope of the right to information on
matters of public concern.
Held: In Valmonte v. Belmonte, Jr., the Court
emphasized that the information sought must be “matters
of public concern,” access to which may be limited by law.
Similarly, the state policy of full public disclosure extends
only to “transactions involving public interest” and may
also be “subject to reasonable conditions prescribed by
law.” As to the meanings of the terms “public interest”
and “public concern,” the Court, in Legaspi v. Civil Service
Commission, elucidated:
“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.”
Considered a public concern in the above-mentioned case
was the “legitimate concern of citizens to ensure that
government positions requiring civil service eligibility are
occupied only by persons who are eligibles.” So was the
need to give the general public adequate notification of
various laws that regulate and affect the actions and
conduct of citizens, as held in Tanada. Likewise did the
“public nature of the loanable funds of the GSIS and the
public office held by the alleged borrowers (members of
the defunct Batasang Pambansa)” qualify the information
sought in Valmonte as matters of public interest and
concern. In Aquino-Sarmiento v. Morato (203 SCRA 515,
522-23, November 13, 1991), the Court also held that
official acts of public officers done in pursuit of their
official functions are public in character; hence, the
records pertaining to such official acts and decisions are
within the ambit of the constitutional right of access to
public records.
Under Republic Act No. 6713, public officials and
employees are mandated to “provide information on their
policies and procedures in clear and understandable
language, [and] ensure openness of information, public
consultations and hearing whenever appropriate x x x,”
except when “otherwise provided by law or when required
by the public interest.” In particular, the law mandates
free public access, at reasonable hours, to the annual
performance reports of offices and agencies of
government and government-owned or controlled
corporations; and the statements of assets, liabilities and
financial disclosures of all public officials and employees.
In general, writings coming into the hands of public
officers in connection with their official functions must be
accessible to the public, consistent with the policy of
transparency of governmental affairs. This principle is
aimed at affording the people an opportunity to determine
whether those to whom they have entrusted the affairs of
the government are honestly, faithfully and competently
performing their functions as public servants.
Undeniably, the essence of democracy lies in the free-flow
of thought; but thoughts and ideas must be well-informed
so that the public would gain a better perspective of vital
issues confronting them and, thus, be able to criticize as
well as participate in the affairs of the government in a
responsible, reasonable and effective manner. Certainly,
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 .
(Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998,
[Panganiban])
200. What are some of the recognized restrictions to
the right of the people to information on matters of public
concern?
Held:
1) National security matters and intelligence
information. This jurisdiction recognizes the common law
holding that there is a governmental privilege against
public disclosure with respect to state secrets regarding
military, diplomatic and other national security matters.
Likewise, information on inter-government exchanges
prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for
the sake of national interest;
2) Trade or industrial secrets (pursuant to the
Intellectual Property Code [R.A. No. 8293, approved on
June 6, 1997] and other related laws) and banking
transactions (pursuant to the Secrecy of Bank Deposits
Act [R.A. No. 1405, as amended]);
3) Criminal matters, such as those relating to
the apprehension, the prosecution and the detention of
criminals, which courts may not inquire into prior to such
arrest, detention and prosecution;
4) Other confidential information. The Ethical
Standards Act (R.A. No. 6713, enacted on February 20,
1989) further prohibits public officials and employees
from using or divulging “confidential or classified
information officially known to them by reason of their
office and not made available to the public.” (Sec. 7[c],
ibid.) Other acknowledged limitations to information
access include diplomatic correspondence, closed door
Cabinet meetings and executive sessions of either house
of Congress, as well as the internal deliberations of the
Supreme Court.
(Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998
[Panganiban])
201. Is the alleged ill-gotten wealth of the Marcoses a
matter of public concern subject to this right?
Held: With such pronouncements of our government,
whose authority emanates from the people, there is no
doubt that the recovery of the Marcoses' alleged ill-gotten
wealth is a matter of public concern and imbued with
public interest. We may also add that “ill-gotten wealth”
refers to assets and properties purportedly acquired,
directly or indirectly, by former President Marcos, his
immediate family, relatives and close associates through
or as a result of their improper or illegal use of
government funds or properties; or their having taken
undue advantage of their public office; or their use of
powers, influences or relationships, “resulting in their
unjust enrichment and causing grave damage and
prejudice to the Filipino people and the Republic of the
Philippines.” Clearly, the assets and properties referred
to supposedly originated from the government itself. To
all intents and purposes, therefore, they belong to the
people. As such, upon reconveyance they will be returned
to the public treasury, subject only to the satisfaction of
positive claims of certain persons as may be adjudged by
competent courts. Another declared overriding
consideration for the expeditious recovery of ill-gotten
wealth is that it may be used for national economic
recovery.
We believe the foregoing disquisition settles the question
of whether petitioner has a right to respondents'
disclosure of any agreement that may be arrived at
concerning the Marcoses’ purported ill-gotten wealth.
(Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998
[Panganiban])
Freedom of Association
202. Does the right of civil servants to organize include
their right to strike? Clarify.
Held: Specifically, the right of civil servants to organize
themselves was positively recognized in Association of
Court of Appeals Employees (ACAE) v. Ferrer-Calleja (203
SCRA 596, November 15, 1991). But, as in the exercise
of the rights of free expression and of assembly, there are
standards for allowable limitations such as the legitimacy
of the purposes of the association, the overriding
considerations of national security and the preservation
of democratic institutions (People v. Ferrer, 48 SCRA 382,
December 27, 1972, per Castro, J., where the Court, while
upholding the validity of the Anti-Subversion Act which
outlawed the Communist Party of the Philippines and
other "subversive" organizations, clarified, "Whatever
interest in freedom of speech and freedom of association
is infringed by the prohibition against knowing
membership in the Communist Party of the Philippines, is
so indirect and so insubstantial as to be clearly and heavily
outweighed by the overriding considerations of national
security and the preservation of democratic institutions in
this country." It cautioned, though, that "the need for
prudence and circumspection [cannot be
overemphasized] in [the law's] enforcement, operating as
it does in the sensitive area of freedom of expression and
belief.")
As regards the right to strike, the Constitution itself
qualifies its exercise with the proviso "in accordance with
law." This is a clear manifestation that the state may, by
law, regulate the use of this right, or even deny certain
sectors such right. Executive Order No. 180 (Issued by
former President Corazon C. Aquino on June 1, 1987)
which provides guidelines for the exercise of the right of
government workers to organize, for instance, implicitly
endorsed an earlier CSC circular which "enjoins under
pain of administrative sanctions, all government officers
and employees from staging strikes, demonstrations,
mass leaves, walkouts and other forms of mass action
which will result in temporary stoppage or disruption of
public service" (CSC Memorandum Circular No. 6, s. 1987,
dated April 21, 1987) by stating that the Civil Service law
and rules governing concerted activities and strikes in the
government service shall be observed.
It is also settled in jurisprudence that, in general, workers
in the public sector do not enjoy the right to strike.
Alliance of Concerned Government Workers v. Minister of
Labor and Employment (124 SCRA 1, August 3, 1983, also
per Gutierrez, Jr., J.) rationalized the proscription thus:
"The general rule in the past and up to the present is that
the 'terms and conditions of employment in the
Government, including any political subdivision or
instrumentality thereof are governed by law.' X x x. Since
the terms and conditions of government employment are
fixed by law, government workers cannot use the same
weapons employed by the workers in the private sector
to secure concessions from their employers. The principle
behind labor unionism in private industry is that industrial
peace cannot be secured through compulsion by law.
Relations between private employers and their employees
rest on an essentially voluntary basis. Subject to the
minimum requirements of wage laws and other labor and
welfare legislation, the terms and conditions of
employment in the unionized private sector are settled
through the process of collective bargaining. In
government employment, however, it is the legislature
and, where properly given delegated power, the
administrative heads of government which fix the terms
and conditions of employment. And this is effected
through statutes or administrative circulars, rules, and
regulations, not through collective bargaining
agreements." (Ibid., p. 13)
After delving into the intent of the framers of the
Constitution, the Court affirmed the above rule in Social
Security System Employees Association (SSSEA) v. Court
of Appeals (175 SCRA 686, July 28, 1989) and explained:
"Government employees may, therefore, through their
unions or associations, either petition the Congress for the
betterment of the terms and conditions of employment
which are within the ambit of legislation or negotiate with
the appropriate government agencies for the
improvement of those which are not fixed by law. If there
be any unresolved grievances, the dispute may be
referred to the Public Sector Labor-Management Council
for appropriate action. But employees in the civil service
may not resort to strikes, walkouts and other temporary
work stoppages, like workers in the private sector, to
pressure the Government to accede to their demands. As
now provided under Sec. 4, Rule III of the Rules and
Regulations to Govern the Exercise of the Right of
Government Employees to Self-Organization, which took
effect after the instant dispute arose, '[t]he terms and
conditions of employment in the government, including
any political subdivision or instrumentality thereof and
government-owned and controlled corporations with
original charters are governed by law and employees
therein shall not strike for the purpose of securing
changes [thereto].'' (Ibid., p. 698)
(Jacinto v. Court of Appeals, 281 SCRA 657, Nov.
14, 1997, En Banc [Panganiban])
203. Petitioners public school teachers walked out of
their classes and engaged in mass actions during certain
dates in September 1990 protesting the alleged unlawful
withholding of their salaries and other economic benefits.
They also raised national issues, such as the removal of
US bases and the repudiation of foreign debts, in their
mass actions. They refused to return to work despite
orders to do so and subsequently were found guilty of
conduct prejudicial to the best interests of the service for
having absented themselves without proper authority,
from their schools during regular school days, and
penalized. They denied that they engaged in “strike” but
claimed that they merely exercised a constitutionally
guaranteed right – the right to peaceably assemble and
petition the government for redress of grievances - and,
therefore, should not have been penalized. Should their
contention be upheld?
Held: Petitioners, who are public schoolteachers and
thus government employees, do not seek to establish that
they have a right to strike. Rather, they tenaciously insist
that their absences during certain dates in September
1990 were a valid exercise of their constitutional right to
engage in peaceful assembly to petition the government
for a redress of grievances. They claim that their
gathering was not a strike, therefore, their participation
therein did not constitute any offense. MPSTA v. Laguio
(Supra, per Narvasa, J., now CJ.) and ACT v. Carino
(Ibid.), in which this Court declared that "these 'mass
actions' were to all intents and purposes a strike; they
constituted a concerted and unauthorized stoppage of, or
absence from, work which it was the teachers' duty to
perform, undertaken for essentially economic reasons,"
should not principally resolve the present case, as the
underlying facts are allegedly not identical.
Strike, as defined by law, means any temporary stoppage
of work done by the concerted action of employees as a
result of an industrial or labor dispute. A labor dispute
includes any controversy or matter concerning terms and
conditions of employment; or the association or
representation of persons in negotiating, fixing,
maintaining, changing or arranging the terms and
conditions of employment, regardless of whether the
disputants stand in the proximate relation of employers
and employees. With these premises, we now evaluate
the circumstances of the instant petition.
It cannot be denied that the mass action or assembly
staged by the petitioners resulted in the non-holding of
classes in several public schools during the corresponding
period. Petitioners do not dispute that the grievances for
which they sought redress concerned the alleged failure
of public authorities - essentially, their "employers" - to
fully and justly implement certain laws and measures
intended to benefit them materially x x x. And probably
to clothe their action with permissible character (In
justifying their mass actions, petitioners liken their activity
to the pro-bases rally led by former President Corazon C.
Aquino on September 10, 1991, participated in, as well,
by public school teachers who consequently absented
themselves from their classes. No administrative charges
were allegedly instituted against any of the participants.) ,
they also raised national issues such as the removal of the
U.S. bases and the repudiation of foreign debt. In
Balingasan v. Court of Appeals (G.R. No. 124678, July 31,
1997, per Regalado, J.), however, this Court said that the
fact that the conventional term "strike" was not used by
the participants to describe their common course of action
was insignificant, since the substance of the situation, and
not its appearance, was deemed controlling.
Moreover, the petitioners here x x x were not penalized
for the exercise of their right to assemble peacefully and
to petition the government for a redress of grievances.
Rather, the Civil Service Commission found them guilty of
conduct prejudicial to the best interest of the service for
having absented themselves without proper authority,
from their schools during regular school days, in order to
participate in the mass protest, their absence ineluctably
resulting in the non-holding of classes and in the
deprivation of students of education, for which they were
responsible. Had petitioners availed themselves of their
free time - recess, after classes, weekends or holidays -
to dramatize their grievances and to dialogue with the
proper authorities within the bounds of law, no one - not
the DECS, the CSC or even this Court - could have held
them liable for the valid exercise of their constitutionally
guaranteed rights. As it was, the temporary stoppage of
classes resulting from their activity necessarily disrupted
public services, the very evil sought to be forestalled by
the prohibition against strikes by government workers.
Their act by their nature was enjoined by the Civil Service
law, rules and regulations, for which they must, therefore,
be made answerable. (Jacinto v. CA, 281 SCRA 657,
Nov. 14, 1997, En Banc [Panganiban])
The Non-Impairment Clause
204. Is the constitutional prohibition against
impairing contractual obligations absolute?
Held: 1. Nor is there merit in the claim that the
resolution and memorandum circular violate the contract
clause of the Bill of Rights.
The executive order creating the POEA was enacted to
further implement the social justice provisions of the 1973
Constitution, which have been greatly enhanced and
expanded in the 1987 Constitution by placing them under
a separate Article (Article XIII). The Article on Social
Justice was aptly described as the "heart of the new
Charter" by the President of the 1986 Constitutional
Commission, retired Justice Cecilia Munoz Palma . Social
justice is identified with the broad scope of the police
power of the state and requires the extensive use of such
power. X x x.
The constitutional prohibition against impairing
contractual obligations is not absolute and is not to be
read with literal exactness. It is restricted to contracts
with respect to property or some object of value and
which confer rights that may be asserted in a court of
justice; it has no application to statutes relating to public
subjects within the domain of the general legislative
powers of the State and involving the public rights and
public welfare of the entire community affected by it. It
does not prevent a proper exercise by the State of its
police power by enacting regulations reasonably
necessary to secure the health, safety, morals, comfort,
or general welfare of the community, even though
contracts may thereby be affected, for such matters
cannot be placed by contract beyond the power of the
State to regulate and control them.
Verily, the freedom to contract is not absolute; all
contracts and all rights are subject to the police power of
the State and not only may regulations which affect them
be established by the State, but all such regulations must
be subject to change from time to time, as the general
well-being of the community may require, or as the
circumstances may change, or as experience may
demonstrate the necessity. And under the Civil Code,
contracts of labor are explicitly subject to the police power
of the State because they are not ordinary contracts but
are impressed with public interest. Article 1700 thereof
expressly provides:
Art. 1700. The relations between capital and labor are
not merely contractual. They are so impressed with
public interest that labor contracts must yield to the
common good. Therefore, such contracts are subject to
the special laws on labor unions, collective bargaining,
strikes and lockouts, closed shop, wages, working
conditions, hours of labor and similar subjects.
The challenged resolution and memorandum circular
being valid implementations of E.O. No. 797 (Creating the
POEA), which was enacted under the police power of the
State, they cannot be struck down on the ground that
they violate the contract clause. To hold otherwise is to
alter long-established constitutional doctrine and to
subordinate the police power to the contract clause. (The
Conference of Maritime Manning Agencies, Inc. v.
POEA, 243 SCRA 666, April 21, 1995 [Davide, Jr.])
2. Petitioners pray that the present action should be
barred, because private respondents have voluntarily
executed quitclaims and releases and received their
separation pay. Petitioners claim that the present suit is
a "grave derogation of the fundamental principle that
obligations arising from a valid contract have the force of
law between the parties and must be complied with in
good faith."
The Court disagrees. Jurisprudence holds that the
constitutional guarantee of non-impairment of contract is
subject to the police power of the state and to reasonable
legislative regulations promoting health, morals, safety
and welfare. Not all quitclaims are per se invalid or
against public policy, except (1) where there is clear proof
that the waiver was wangled from an unsuspecting or
gullible person, or (2) where the terms of settlement are
unconscionable on their face. In these cases, the law will
step in to annul the questionable transactions. Such
quitclaim and release agreements are regarded as
ineffective to bar the workers from claiming the full
measure of their legal rights.
In the case at bar, the private respondents agreed to the
quitclaim and release in consideration of their separation
pay. Since they were dismissed allegedly for business
losses, they are entitled to separation pay under Article
283 of the Labor Code. And since there was thus no extra
consideration for the private respondents to give up their
employment, such undertakings cannot be allowed to bar
the action for illegal dismissal. (Bogo-Medellin
Sugarcane Planters Association, Inc. v. NLRC, 296
SCRA 108, 124, [Panganiban])
3. Only slightly less abstract but nonetheless hypothetical
is the contention of CREBA that the imposition of the VAT
on the sales and leases of real estate by virtue of
contracts entered prior to the effectivity of the law would
violate the constitutional provision that "No law impairing
the obligation of contracts shall be passed." It is enough
to say that the parties to a contract cannot, through the
exercise of prophetic discernment, fetter the exercise of
the taxing power of the State. For not only are existing
laws read into contracts in order to fix obligations as
between parties, but the reservation of essential
attributes of sovereign power is also read into contracts
as a basic postulate of the legal order. The policy of
protecting contracts against impairment presupposes the
maintenance of a government which retains adequate
authority to secure the peace and good order of society.
In truth, the Contract Clause has never been thought as
a limitation on the exercise of the State's power of
taxation save only where a tax exemption has been
granted for a valid consideration. X x x. (Tolentino v.
Secretary of Finance, 235 SCRA 630, 685-686,
Aug. 25, 1994, En Banc [Mendoza])
4. Since timber licenses are not contracts, the non-
impairment clause x x x cannot be invoked.
X x x, even if it is to be assumed that the same are
contracts, the instant case does not involve a law or even
an executive issuance declaring the cancellation or
modification of existing timber licenses. Hence, the non-
impairment clause cannot as yet be invoked.
Nevertheless, granting further that a law has actually
been passed mandating cancellations or modifications,
the same cannot still be stigmatized as a violation of the
non-impairment clause. This is because by its very nature
and purpose, such a law could have only been passed in
the exercise of the police power of the state for the
purpose of advancing the right of the people to a balanced
and healthful ecology, promoting their health and
enhancing their general welfare. X x x.
In short, the non-impairment clause must yield to the
police power of the state.
Finally, it is difficult to imagine x x x how the non-
impairment clause could apply with respect to the prayer
to enjoin the respondent Secretary from receiving,
accepting, processing, renewing or approving new timber
license for, save in cases of renewal, no contract would
have as yet existed in the other instances. Moreover, with
respect to renewal, the holder is not entitled to it as a
matter of right. (Oposa v. Factoran, Jr., 224 SCRA
792 [1993])
5. Anent petitioners' contention that the forcible refund
of incentive benefits is an unconstitutional impairment of
a contractual obligation, suffice it to state that "[n]ot all
contracts entered into by the government will operate as
a waiver of its non-suability; distinction must be made
between its sovereign and proprietary acts. The acts
involved in this case are governmental. Besides, the
Court is in agreement with the Solicitor General that the
incentive pay or benefit is in the nature of a bonus which
is not a demandable or enforceable obligation.
(Blaquera v. Alcala, 295 SCRA 366, 446, Sept. 11,
1998, En Banc [Purisima])
The In-Custodial Investigation Rights of an Accused
Person
205. State the procedure, guidelines and duties which
the arresting, detaining, inviting, or investigating officer
or his companions must do and observe at the time of
making an arrest and again at and during the time of the
custodial interrogation.
Held: Lastly, considering the heavy penalty of death and
in order to ensure that the evidence against an accused
were obtained through lawful means, the Court, as
guardian of the rights of the people lays down the
procedure, guidelines and duties which the arresting,
detaining, inviting, or investigating officer or his
companions must do and observe at the time of making
an arrest and again at and during the time of the custodial
interrogation in accordance with the Constitution,
jurisprudence and Republic Act No. 7438 (An Act Defining
Certain Rights of Person Arrested, Detained or Under
Custodial Investigation as well as the Duties of the
Arresting, Detaining, and Investigating Officers and
Providing Penalties for Violations Thereof). It is high-time
to educate our law-enforcement agencies who neglect
either by ignorance or indifference the so-called Miranda
rights which had become insufficient and which the Court
must update in the light of new legal developments:
1) The person arrested, detained, invited or
under custodial investigation must be informed in a
language known to and understood by him of the reason
for the arrest and he must be shown the warrant of arrest,
if any. Every other warnings, information or
communication must be in a language known to and
understood by said person;
2) He must be warned that he has a right to
remain silent and that any statement he makes may be
used as evidence against him;
3) He must be informed that he has the right to
be assisted at all times and have the presence of an
independent and competent lawyer, preferably of his own
choice;
4) He must be informed that if he has no lawyer
or cannot afford the services of a lawyer, one will be
provided for him; and that a lawyer may also be engaged
by any person in his behalf, or may be appointed by the
court upon petition of the person arrested or one acting
on his behalf;
5) That whether or not the person arrested has
a lawyer, he must be informed that no custodial
investigation in any form shall be conducted except in the
presence of his counsel of after a valid waiver has been
made;
6) The person arrested must be informed that,
at any time, he has the right to communicate or confer
by the most expedient means - telephone, radio, letter or
messenger - with his lawyer (either retained or
appointed), any member of his immediate family, or any
medical doctor, priest or minister chosen by him or by any
one from his immediate family or by his counsel, or be
visited by/confer with duly accredited national or
international non-government organization. It shall be
the responsibility of the officer to ensure that this is
accomplished;
7) He must be informed that he has the right to
waive any of said rights provided it is made voluntarily,
knowingly and intelligently and ensure that he understood
the same;
8) In addition, if the person arrested waives his
right to a lawyer, he must be informed that it must be
done in writing and in the presence of counsel, otherwise,
he must be warned that the waiver is void even if he insist
on his waiver and chooses to speak;
9) That the person arrested must be informed
that he may indicate in any manner at any time or stage
of the process that he does not wish to be questioned
with warning that once he makes such indication, the
police may not interrogate him if the same had not yet
commenced, or the interrogation must cease if it has
already begun;
10) The person arrested must be informed that
his initial waiver of his right to remain silent, the right to
counsel or any of his rights does not bar him from
invoking it at any time during the process, regardless of
whether he may have answered some questions or
volunteered some statements;
11) He must also be informed that any statement
or evidence, as the case may be, obtained in violation of
any of the foregoing, whether inculpatory or exculpatory,
in whole or in part, shall be admissible in evidence.
(People v. Mahinay, 302 SCRA 455, Feb. 1, 1999,
En Banc [Per Curiam])
206. Explain the kind of information that is required to
be given by law enforcement officers to suspect during
custodial investigation.
Held: [I]t is settled that one’s right to be informed of the
right to remain silent and to counsel contemplates the
transmission of meaningful information rather just the
ceremonial and perfunctory recitation of an abstract
constitutional principle. It is not enough for the
interrogator to merely repeat to the person under
investigation the provisions of Section 12, Article III of the
1987 Constitution; the former must also explain the
effects of such provision in practical terms – e.g., what
the person under investigation may or may not do – and
in a language the subject fairly understands. The right to
be informed carries with it a correlative obligation on the
part of the police investigator to explain, and
contemplates effective communication which results in
the subject’s understanding of what is conveyed. Since it
is comprehension that is sought to be attained, the
degree of explanation required will necessarily vary and
depend on the education, intelligence, and other relevant
personal circumstances of the person undergoing
investigation. In further ensuring the right to counsel, it
is not enough that the subject is informed of such right;
he should also be asked if he wants to avail of the same
and should be told that he could ask for counsel if he so
desired or that one could be provided him at his request.
If he decides not to retain a counsel of his choice or avail
of one to be provided for him and, therefore, chooses to
waive his right to counsel, such waiver, to be valid and
effective, must still be made with the assistance of
counsel, who, under prevailing jurisprudence, must be a
lawyer. (People v. Canoy, 328 SCRA 385, March 17,
2000, 1st Div. [Davide, CJ])
207. What is the meaning of “competent counsel”
under Section 12 of the Bill of Rights?
Held: The meaning of “competent counsel” was
explained in People v. Deniega (251 SCRA 626, 637) as
follows:
“x x x [T]he lawyer called to be present during such
investigation should be as far as reasonably possible, the
choice of the individual undergoing questioning. If the
lawyer were one furnished in the accused’s behalf, it is
important that he should be competent and independent,
i.e., that he is willing to fully safeguard the constitutional
rights of the accused, as distinguished from one who
would merely be giving a routine, peremptory and
meaningless recital of the individual’s rights. In People v.
Basay (219 SCRA 404, 418), this Court stressed that an
accused’s right to be informed of the right to remain silent
and to counsel ‘contemplates the transmission of
meaningful information rather than just the ceremonial
and perfunctory recitation of an abstract constitutional
principle.’
“Ideally therefore, a lawyer engaged for an individual
facing custodial investigation (if the latter could not afford
one) ‘should be engaged by the accused (himself), or by
the latter’s relative or person authorized by him to engage
an attorney or by the court, upon proper petition of the
accused or person authorized by the accused to file such
petition.’ Lawyers engaged by the police, whatever
testimonials are given as proof of their probity and
supposed independence, are generally suspect, as in
many areas, the relationship between lawyers and law
enforcement authorities can be symbiotic.
“x x x The competent or independent lawyer so engaged
should be present from the beginning to end, i.e., at all
stages of the interview, counseling or advising caution
reasonably at every turn of the investigation, and
stopping the interrogation once in a while either to give
advice to the accused that he may either continue, choose
to remain silent or terminate the interview.”
(People v. Espiritu, 302 SCRA 533, Feb. 2, 1999, 3rd
Div. [Panganiban])
208. Can a PAO lawyer be considered an independent
counsel within the contemplation of Section 12, Article III,
1987 Constitution?
Held: In People v. Oracoy, 224 SCRA 759 [1993]; People
v. Bandula, 232 SCRA 566 [1994], the SC has held that a
PAO lawyer can be considered an independent counsel
within the contemplation of the Constitution considering
that he is not a special counsel, public or private
prosecutor, counsel of the police, or a municipal attorney
whose interest is admittedly adverse to that of the
accused-appellant. Thus, the assistance of a PAO lawyer
satisfies the constitutional requirement of a competent
and independent counsel for the accused. (People v.
Bacor, 306 SCRA 522, April 30, 1999, 2nd Div.
[Mendoza])
209. Is the confession of an accused given
spontaneously, freely and voluntarily to the Mayor
admissible in evidence, considering that the Mayor has
“operational supervision and control” over the local police
and may arguably be deemed a law enforcement officer?
Held: While it is true that a municipal mayor has
“operational supervision and control” over the local police
and may arguably be deemed a law enforcement officer
for purposes of applying Section 12(1) and (3) of Article
III of the Constitution, however, appellant’s confession to
the mayor was not made in response to any interrogation
by the latter. In fact, the mayor did not question the
appellant at all. No police authority ordered appellant to
talk to the mayor. It was appellant himself who
spontaneously, freely and voluntarily sought the mayor
for a private meeting. The mayor did not know that
appellant was going to confess his guilt to him. When
appellant talked with the mayor as a confidant and not as
a law enforcement officer, his uncounselled confession to
him did not violate his constitutional rights. Thus, it has
been held that the constitutional procedures on custodial
investigation do not apply to a spontaneous statement,
not elicited through questioning by the authorities, but
given in an ordinary manner whereby appellant orally
admitted having committed the crime. What the
Constitution bars is the compulsory disclosure of
incriminating facts or confessions. The rights under
Section 12 are guaranteed to preclude the slightest use
of coercion by the State as would lead the accused to
admit something false, not to prevent him from freely and
voluntarily telling the truth. (People v. Andan, 269
SCRA 95, March 3, 1997)
210. Are confessions made in response to questions by
news reporters admissible in evidence?
Answer: Yes. Confessions made in response to
questions by news reporters, not by the police or any
other investigating officer, are admissible. In People v.
Vizcarra, 115 SCRA 743, 752 [1982], where the accused,
under custody, gave spontaneous answers to a televised
interview by several press reporters in the office of the
chief of the CIS, it was held that statements
spontaneously made by a suspect to news reporters on a
televised interview are deemed voluntary and are
admissible in evidence. In People v. Andan, 269 SCRA
95, March 3, 1997, it was held that appellant’s
confessions to the news reporters were given free from
any undue influence from the police authorities. The
news reporters acted as news reporters when they
interviewed appellant. They were not acting under the
direction and control of the police. They did not force
appellant to grant them an interview and reenact the
commission of the crime. In fact, they asked his
permission before interviewing him. The Supreme Court
further ruled that appellant’s verbal confessions to the
newsmen are not covered by Section 12(1) and (3) of
Article III of the Constitution and, therefore, admissible in
evidence.
211. Discuss why lower court’s should act with
extreme caution in admitting in evidence accused’s
videotaped media confessions.
Held: Apropos the court a quo’s admission of accused-
appellant’s videotaped confession, we find such
admission proper. The interview was recorded on video
and it showed accused-appellant unburdening his guilt
willingly, openly and publicly in the presence of
newsmen. Such confession does not form part of
custodial investigation as it was not given to police
officers but to media men in an attempt to elicit
sympathy and forgiveness from the public. Besides, if
he had indeed been forced into confessing, he could
have easily sought succor from the newsmen who, in all
likelihood, would have been sympathetic with him. X x x
X x x However, because of the inherent danger
in the use of television as a medium for admitting one’s
guilt, and the recurrence of this phenomenon in several
cases (People v. Vizcarra, No. L-38859, 30 July 1982, 115
SCRA 743; others omitted), it is prudent that trial courts
are reminded that extreme caution must be taken in
further admitting similar confessions. For in all
probability, the police, with the connivance of
unscrupulous media practitioners, may attempt to
legitimize coerced extrajudicial confessions and place
them beyond the exclusionary rule by having an accused
admit an offense on television. Such a situation would be
detrimental to the guaranteed rights of the accused and
thus imperil our criminal justice system.
We do not suggest that videotaped confessions given
before media men by an accused with the knowledge of
and in the presence of police officers are impermissible.
Indeed, the line between proper and invalid police
techniques and conduct is a difficult one to draw,
particularly in cases such as this where it is essential to
make sharp judgments in determining whether a
confession was given under coercive physical or
psychological atmosphere.
A word of caution then to lower courts: we should never
presume that all media confessions described as
voluntary have been freely given. This type of confession
always remains suspect and therefore should be
thoroughly examined and scrutinized. Detection of
coerced confessions is admittedly a difficult and arduous
task for the courts to make. It requires persistence and
determination in separating polluted confessions from
untainted ones. We have a sworn duty to be vigilant and
protective of the rights guaranteed by the Constitution.
(People v. Endino, 353 SCRA 307, Feb. 20, 2001,
2nd Div. [Bellosillo])
212. Discuss the two kinds of involuntary or coerced
confessions under Section 12, Article III of the 1987
Constitution. Illustrate how the Court should appreciate
said involuntary or coerced confessions.
Held: There are two kinds of involuntary or coerced
confessions treated in this constitutional provision: (1)
those which are the product of third degree methods such
as torture, force, violence, threat, intimidation, which are
dealt with in paragraph 2 of Section 12, and (2) those
which are given without the benefit of Miranda warnings,
which are the subject of paragraph 1 of the same Section
12.
Accused-appellant claims that his confession was
obtained by force and threat. Aside from this bare
assertion, he has shown no proof of the use of force and
violence on him. He did not seek medical treatment nor
even a physical examination. His allegation that the fact
that he was made to sign the confession five times is
proof that he refused to sign it.
Xxx
We discern no sign that the confession was involuntarily
executed from the fact that it was signed by accused-
appellant five times.
Xxx
Extrajudicial confessions are presumed voluntary, and, in
the absence of conclusive evidence showing the
declarant’s consent in executing the same has been
vitiated, such confession will be sustained.
Moreover, the confession contains details that only the
perpetrator of the crime could have given. X x x. It has
been held that voluntariness of a confession may be
inferred from its being replete with details which could
possibly be supplied only by the accused, reflecting
spontaneity and coherence which cannot be said of a
mind on which violence and torture have been applied .
When the details narrated in an extrajudicial confession
are such that they could not have been concocted by one
who did not take part in the acts narrated, where the
claim of maltreatment in the extraction of the confession
is unsubstantiated and where abundant evidence exists
showing that the statement was voluntarily executed, the
confession is admissible against the declarant. There is
greater reason for finding a confession to be voluntary
where it is corroborated by evidence aliunde which
dovetails with the essential facts contained in such
confession.
But what renders the confession of accused-appellant
inadmissible is the fact that accused-appellant was not
given the Miranda warnings effectively. Under the
Constitution, an uncounseled statement, such as it is
called in the United States from which Article III, Section
12(1) was derived, is presumed to be psychologically
coerced. Swept into an unfamiliar environment and
surrounded by intimidating figures typical of the
atmosphere of police interrogation, the suspect really
needs the guiding hand of counsel.
Now, under the first paragraph of this provision, it is
required that the suspect in custodial interrogation must
be given the following warnings: (1) he must be informed
of his right to remain silent; (2) he must be warned that
anything he says can and will be used against him; and
(3) he must be told that he has a right to counsel, and
that if he is indigent, a lawyer will be appointed to
represent him.
Xxx
There was thus only a perfunctory reading of the Miranda
rights to accused-appellant without any effort to find out
from him whether he wanted to have counsel and, if so,
whether he had his own counsel or he wanted the police
to appoint one for him. This kind of giving of warnings,
in several decisions of this Court, has been found to be
merely ceremonial and inadequate to transmit meaningful
information to the suspect. Especially in this case, care
should have been scrupulously observed by the police
investigator that accused-appellant was specifically asked
these questions considering that he only finished the
fourth grade of the elementary school. X x x
Moreover, Article III, Section 12(1) requires that counsel
assisting suspects in custodial interrogations be
competent and independent. Here, accused-appellant
was assisted by Atty. De los Reyes, who, though
presumably competent, cannot be considered an
“independent counsel” as contemplated by the law for the
reason that he was station commander of the WPD at the
time he assisted accused-appellant. X x x.
This is error. As observed in People v. Bandula (232 SCRA
566 [1994]), the independent counsel required by Article
III, Section 12(1) cannot be special counsel, public or
private prosecutor, municipal attorney, or counsel of the
police whose interest is admittedly adverse to the
accused. In this case, Atty. De los Reyes, as PC Captain
and Station Commander of the WPD, was part of the
police force who could not be expected to have effectively
and scrupulously assisted accused-appellant in the
investigation. To allow such a happenstance would
render illusory the protection given to the suspect during
custodial investigation. (People v. Obrero, 332 SCRA
190, 220 – 208, May 17, 2000, 2nd Div. [Mendoza])
213. What are the requirements for an extra-judicial
confession of an accused to be admissible in evidence?
Held: 1. In jurisprudence, no confession can be
admitted in evidence unless it is given:
1) Freely and voluntarily, without compulsion,
inducement or trickery;
2) Knowingly based on an effective
communication to the individual under custodial
investigation of his constitutional rights; and
3) Intelligently with full appreciation of its
importance and comprehension of its consequences.
Once admitted, the confession must inspire credibility or
be one which the normal experience of mankind can
accept as being within the realm of probability.
A confession meeting all the foregoing requisites
constitutes evidence of a high order since it is supported
by the strong presumption that no person of normal mind
will knowingly, freely and deliberately confess that he is
the perpetrator of a crime unless prompted by truth and
conscience. When all these requirements are met and the
confession is admitted in evidence, the burden of proof
that it was obtained by undue pressure, threat or
intimidation rests upon the accused. (People v. Fabro,
277 SCRA 19, Aug. 11, 1997 [Panganiban])
2. Numerous decisions of this Court rule that for an
extrajudicial confession to be admissible, it must be: 1)
voluntary; 2) made with the assistance of competent and
independent counsel; 3) express; and 4) in writing.
The mantle of protection afforded by the above-quoted
constitutional provision covers the period from the time a
person is taken into custody for the investigation of his
possible participation in the commission of a crime or from
the time he is singled out as a suspect in the commission
of the offense although not yet in custody. The
exclusionary rule is premised on the presumption that the
defendant is thrust into an unfamiliar atmosphere running
through menacing police interrogation procedures where
the potentiality for compulsion, physical or psychological
is forcefully apparent.
However, the rule is not intended as a deterrent to the
accused from confessing guilt if he voluntarily and
intelligently so desires but to protect the accused from
admitting what he is coerced to admit although untrue .
(People v. Base, 329 SCRA 158, 169-171, March
30, 2000, 1st Div. [Ynares-Santiago])
214. Is the choice of a lawyer by a person under
custodial investigation who cannot afford the services of
a counsel exclusive as to preclude other equally
competent and independent attorneys from handling his
defense?
Held: It must be remembered in this regard that while
the right to counsel is immutable, the option to secure the
services of counsel de parte is not absolute. Indeed –
The phrase “competent and independent” and “preferably
of his own choice” were explicit details which were added
upon the persistence of human rights lawyers in the 1986
Constitutional Commission who pointed out cases where,
during the martial law period, the lawyers made available
to the detainee would be one appointed by the military
and therefore beholden to the military. (Citing I Record of
the Constitutional Commission 731-734; I Bernas, The
Constitution of the Republic of the Philippines, 1987 1st
ed., p. 347)
Xxx xxx xxx
Withal, the word “preferably” under Section 12(1), Article
3 of the 1987 Constitution does not convey the message
that the choice of a lawyer by a person under
investigation is exclusive as to preclude other equally
competent and independent attorneys from handling his
defense. If the rule were otherwise, then, the tempo of
a custodial investigation will be solely in the hands of the
accused who can impede, nay, obstruct the progress of
the interrogation by simply selecting a lawyer who for one
reason or another, is not available to protect his interest.
This absurd scenario could not have been contemplated
by the framers of the charter.
While the initial choice in cases where a person under
custodial investigation cannot afford the services of a
lawyer is naturally lodged in the police investigators, the
accused really has the final choice as he may reject the
counsel chosen for him and ask for another one. A lawyer
provided by the investigators is deemed engaged by the
accused where he never raised any objection against the
former’s appointment during the course of the
investigation and the accused thereafter subscribes to the
veracity of his statement before the swearing officer.
Verily, to be an effective counsel “[a] lawyer need not
challenge all the questions being propounded to his client.
The presence of a lawyer is not intended to stop an
accused from saying anything which might incriminate
him but, rather, it was adopted in our Constitution to
preclude the slightest coercion as would lead the accused
to admit something false (People v. Layuso, 175 SCRA 47
[1989]). The counsel, however, should never prevent an
accused from freely and voluntarily telling the truth.”
(People v. Base, 329 SCRA 158, 169-171, March
30, 2000, 1st Div. [Ynares-Santiago])
215. Should courts be allowed to distinguish between
preliminary questioning and custodial investigation proper
when applying the exclusionary rule?
Held: The exclusionary rule sprang from a recognition
that police interrogatory procedures lay fertile grounds for
coercion, physical and psychological, of the suspect to
admit responsibility for the crime under investigation. It
was not intended as a deterrent to the accused from
confessing guilt, if he voluntarily and intelligently so
desires but to protect the accused from admitting what
he is coerced to admit although untrue . Law enforcement
agencies are required to effectively communicate the
rights of a person under investigation and to insure that
it is fully understood. Any measure short of this
requirement is considered a denial of such right. Courts
are not allowed to distinguish between preliminary
questioning and custodial investigation proper when
applying the exclusionary rule. Any information or
admission given by a person while in custody which may
appear harmless or innocuous at the time without the
competent assistance of an independent counsel should
be struck down as inadmissible. It has been held,
however, that an admission made to news reporters or to
a confidant of the accused is not covered by the
exclusionary rule.
The admission allegedly made by the appellant is not in
the form of a written extra-judicial confession; the
admission was allegedly made to the arresting officer
during an “informal talk” at the police station after his
arrest as a prime suspect in the rape and killing of x x x.
The arresting policeman testified that the appellant
admitted that he was with the victim on the evening of
January 12, 1994, the probable time of the commission of
the crime and that he carried her on his shoulder but that
he was too drunk to remember what subsequently
happened. The arresting policeman admitted that he did
not inform the appellant of his constitutional rights to
remain silent and to counsel. We note that the alleged
admission is incriminating because it places the accused
in the company of the victim at the time the crime was
probably committed.
The exclusionary rule applies.
The accused was under arrest for the rape and killing of
x x x and any statement allegedly made by him pertaining
to his possible complicity in the crime without prior
notification of his constitutional rights is inadmissible in
evidence. The policeman’s apparent attempt to
circumvent the rule by insisting that the admission was
made during an “informal talk” prior to custodial
investigation prior is not tenable. The appellant was not
invited to the police station as part of a general inquiry
for any possible lead to the perpetrators of the crime
under investigation. At the time the alleged admission
was made the appellant was in custody and had been
arrested as the prime suspect in the rape and killing of x
x x. The exclusionary rule presumes that the alleged
admission was coerced, the very evil the rule stands to
avoid. Supportive of such presumption is the absence of
a written extra-judicial confession to that effect and the
appellant’s denial in court of the alleged oral admission.
The alleged admission should be struck down as
inadmissible. (People v. Bravo, 318 SCRA 812, Nov.
22, 1999, En Banc [Gonzaga-Reyes])
216. Explain the procedure for out-of-court
identification of suspects and the test to determine the
admissibility of such identification.
Held: 1. In People v. Teehankee, Jr. (249 SCRA 54,
October 6, 1995), the Court x x x explained the procedure
for out-of-court identification and the test to determine
the admissibility of such identification. It listed the
following ways of identifying the suspects during custodial
investigation: show-up, mug shots and line-ups. The
Court there ruled:
“x x x. Out-of-court identification is conducted by the
police in various ways. It is done thru show-ups where
the suspect alone is brought face to face with the witness
for identification. It is done thru mug shots where
photographs are shown to the witness to identify the
suspect. It is also done thru line ups where a witness
identifies the suspect from a group of persons lined up for
the purpose. Since corruption of out-of-court
identification contaminates the integrity of in court
identification during the trial of the case, courts have
fashioned out rules to assure its fairness and its
compliance with the requirements of constitutional due
process. In resolving the admissibility of and relying on
out-of- court identification of suspects, courts have
adopted the totality of circumstances test where they
consider the following factors, viz: (1) the witness’
opportunity to view the criminal at the time of the crime;
(2) the witness’ degree of attention at that time; (3) the
accuracy of any prior description given by the witness; (4)
the level of certainty demonstrated by the witness at the
identification; (5) the length of time between the crime
and the identification; and (6) the suggestiveness of the
identification procedure.” (Ibid., p. 95) (People v.
Timon, 281 SCRA 577, Nov. 12, 1997
[Panganiban])
2. x x x. The totality test has been fashioned precisely
to assure fairness as well as compliance with
constitutional requirements of due process in regard to
out-of-court identification. These cited factors must be
considered to prevent contamination of the integrity of in-
court identifications better. (People v. Gamer, 326
SCRA 660, Feb. 29, 2000, 2nd Div. [Quisumbing])
217. Does the prohibition for custodial investigation
conducted without the assistance of counsel extend to a
person in a police line-up? Consequently, is the
identification by private complainant of accused who was
not assisted by counsel during police line-up admissible in
evidence?
Held: The prohibition x x x does not extend to a person
in a police line-up because that stage of an investigation
is not yet a part of custodial investigation. It has been
repeatedly held that custodial investigation commences
when a person is taken into custody and is singled out as
a suspect in the commission of the crime under
investigation and the police officers begin to ask questions
on the suspect’s participation therein and which tend to
elicit an admission. The stage of an investigation wherein
a person is asked to stand in a police line-up has been
held to be outside the mantle of protection of the right to
counsel because it involves a general inquiry into an
unsolved crime and is purely investigatory in nature. It
has also been held that an uncounseled identification at
the police line-up does not preclude the admissibility of
an in-court identification. The identification made by the
private complainant in the police line-up pointing to
Pavillare as one of his abductors is admissible in evidence
although the accused-appellant was not assisted by
counsel. X x x (People v. Pavillare, 329 SCRA 684,
694-695, April 5, 2000, En Banc [Per Curiam])
218. Petitioner in a case “x x x posits the theory that
since he had no counsel during the custodial investigation
when his urine sample was taken and chemically
examined, Exhibits “L” and “M,” x x x are also inadmissible
in evidence since his urine sample was derived in effect
from an uncounselled extra-judicial confession. Petitioner
claims that the taking of his urine sample allegedly
violates Article III, Section 2 of the Constitution x x x.”
Should his contentions be upheld?
Held: We are not persuaded. The right to counsel begins
from the time a person is taken into custody and placed
under investigation for the commission of a crime, i.e.,
when the investigating officer starts to ask questions to
elicit information and/or confession or admissions from
the accused. Such right is guaranteed by the Constitution
and cannot be waived except in writing and in the
presence of counsel. However, what the Constitution
prohibits is the use of physical or moral compulsion to
extort communication from the accused, but not an
inclusion of his body in evidence, when it may be material.
In fact, an accused may validly be compelled to be
photographed or measured, or his garments or shoes
removed or replaced, or to move his body to enable the
foregoing things to be done, without running afoul of the
proscription against testimonial compulsion . The
situation in the case at bar falls within the exemption
under the freedom from testimonial compulsion since
what was sought to be examined came from the body of
the accused. This was a mechanical act the accused was
made to undergo which was not meant to unearth
undisclosed facts but to ascertain physical attributes
determinable by simple observation. In fact, the record
shows that petitioner and his co-accused were not
compelled to give samples of their urine but they in fact
voluntarily gave the same when they were requested to
undergo a drug test. (Gutang v. People, 335 SCRA
479, July 11, 2000, 2nd Div. [De Leon])
The Right to Bail
219. In bail application where the accused is charged
with a capital offense, will it be proper for the judge to
grant bail without conducting hearing if the prosecutor
interposes no objection to such application? Why?
Held: Jurisprudence is replete with decisions compelling
judges to conduct the required hearings in bail
applications, in which the accused stands charged with a
capital offense. The absence of objection from the
prosecution is never a basis for the grant of bail in such
cases, for the judge has no right to presume that the
prosecutor knows what he is doing on account of
familiarity with the case. "Said reasoning is tantamount
to ceding to the prosecutor the duty of exercising judicial
discretion to determine whether the guilt of the accused
is strong. Judicial discretion is the domain of the judge
before whom the petition for provisional liberty will be
decided. The mandated duty to exercise discretion has
never been reposed upon the prosecutor."
Imposed in Baylon v. Sison (243 SCRA 284, April 6, 1995)
was this mandatory duty to conduct a hearing despite the
prosecution's refusal to adduce evidence in opposition to
the application to grant and fix bail. (Joselito V.
Narciso v. Flor Marie Sta. Romana-Cruz, G.R. No.
134504, March 17, 2000, 3rd Div. [Panganiban])
220. What are the duties of the judge in cases of bail
applications where the accused is charged with capital
offense?
Held: Basco v. Rapatalo (269 SCRA 220, March 5, 1997)
enunciated the following duties of the trial judge in such
petition for bail:
1) Notify the prosecutor of the hearing of the
application for bail or require him to submit his
recommendation;
2) Conduct a hearing of the application for bail
regardless of whether or not the prosecution refuses to
present evidence to show that the guilt of the accused is
strong for the purpose of enabling the court to exercise
its sound discretion;
3) Decide whether the evidence of guilt of the
accused is strong based on the summary of evidence of
the prosecution;
4) If the guilt of the accused is not strong,
discharge the accused upon the approval of the bailbond.
Otherwise, petition should be denied.
The Court added: "The above-enumerated procedure
should now leave no room for doubt as to the duties of
the trial judge in cases of bail applications. So basic and
fundamental is it to conduct a hearing in connection with
the grant of bail in the proper cases that it would amount
to judicial apostasy for any member of the judiciary to
disclaim knowledge or awareness thereof."
Additionally, the court's grant or refusal of bail must
contain a summary of the evidence for the prosecution,
on the basis of which should be formulated the judge's
own conclusion on whether such evidence is strong
enough to indicate the guilt of the accused. The summary
thereof is considered an aspect of procedural due process
for both the prosecution and the defense; its absence will
invalidate the grant or the denial of the application for
bail. (Joselito V. Narciso v. Flor Marie Sta. Romana-
Cruz, G.R. No. 134504, March 17, 2000, 3rd Div.
[Panganiban])
221. Should the accused who remained at large after
their conviction be allowed provisional liberty? Can the
bail bond that the accused previously posted be used
during the entire period of appeal?
Held: Despite an order of arrest from the trial court and
two warnings from the Court of Appeals, petitioners had
remained at large. It is axiomatic that for one to be
entitled to bail, he should be in the custody of the law, or
otherwise, deprived of liberty. The purpose of bail is to
secure one’s release and it would be incongruous to grant
bail to one who is free. Petitioners’ Compliance and
Motion x x x came short of an unconditional submission
to respondent court’s lawful order and to its jurisdiction.
The trial court correctly denied petitioners’ motion that
they be allowed provisional liberty after their conviction,
under their respective bail bonds. Apart from the fact that
they were at large, Section 5, Rule 114 of the Rules of
Court, as amended by Supreme Court Administrative
Circular 12-94, provides that:
Xxx
The Court, in its discretion, may allow the accused to
continue on provisional liberty under the same bail bond
during the period to appeal subject to the consent of the
bondsman.
The bail bond that the accused previously posted can only
be used during the 15-day period to appeal (Rule 122)
and not during the entire period of appeal. This is
consistent with Section 2(a) of Rule 114 which provides
that the bail “shall be effective upon approval and remain
in force at all stages of the case, unless sooner cancelled,
until the promulgation of the judgment of the Regional
Trial Court, irrespective of whether the case was originally
filed in or appealed to it.” This amendment, introduced
by SC Administrative Circular 12-94 is a departure from
the old rules which then provided that bail shall be
effective and remain in force at all stages of the case until
its full determination, and thus even during the period of
appeal. Moreover, under the present rule, for the accused
to continue his provisional liberty on the same bail bond
during the period to appeal, consent of the bondsman is
necessary. From the record, it appears that the
bondsman x x x filed a motion in the trial court x x x for
the cancellation of petitioners’ bail bond for the latter’s
failure to renew the same upon its expiration. Obtaining
the consent of the bondsman was, thus, foreclosed.
(Maguddatu v. Court of Appeals, 326 SCRA 362,
Feb. 23, 2000, 1st Div. [Kapunan])
223. Is a condition in an application for bail that
accused be first arraigned before he could be granted bail
valid?
Held: In requiring that petitioner be first arraigned
before he could be granted bail, the trial court
apprehended that if petitioner were released on bail he
could, by being absent, prevent his early arraignment and
thereby delay his trial until the complainants got tired and
lost interest in their cases. Hence, to ensure his presence
at the arraignment, approval of petitioner’s bail bonds
should be deferred until he could be arraigned. After that,
even if petitioner does not appear, trial can proceed as
long as he is notified of the date of the hearing and his
failure to appear is unjustified, since under Art. III, Sec.
14(2) of the Constitution, trial in absencia is authorized.
This seems to be the theory of the trial court in its x x x
order conditioning the grant of bail to petitioner on his
arraignment.
This theory is mistaken. In the first place x x x in cases
where it is authorized, bail should be granted before
arraignment, otherwise the accused may be precluded
from filing a motion to quash. For if the information is
quashed and the case is dismissed, there would then be
no need for the arraignment of the accused. In the
second place, the trial court could ensure the presence of
petitioner at the arraignment precisely by granting bail
and ordering his presence at any stage of the
proceedings, such as arraignment. Under Rule 114, Sec.
2(b) of the Rules on Criminal Procedure, one of the
conditions of bail is that “the accused shall appear before
the proper court whenever so required by the court or
these Rules,” while under Rule 116, Sec. 1(b) the
presence of the accused at the arraignment is required.
On the other hand, to condition the grant of bail to an
accused on his arraignment would be to place him in a
position where he has to choose between (1) filing a
motion to quash and thus delay his release on bail
because until his motion to quash can be resolved, his
arraignment cannot be held, and (2) foregoing the filing
of a motion to quash so that he can be arraigned at once
and thereafter be released on bail. These scenarios
certainly undermine the accused’s constitutional right not
to be put on trial except upon valid complaint or
information sufficient to charge him with a crime and his
right to bail. (Lavides v. CA, 324 SCRA 321, Feb. 1,
2000, 2 nd
Div. [Mendoza])
The Right to be Informed of the Nature and Cause
of Accusation against the Accused
224. What are the objectives of the right to be
informed of the nature and cause of accusations against
the accused?
Held: Instructive in this regard is Section 6, Rule 110 of
the Rules of Court x x x.
The purpose of the above-quoted rule is to inform the
accused of the nature and cause of the accusation against
him, a right guaranteed by no less than the fundamental
law of the land (Article III, Section 14[2], 1987
Constitution). Elaborating on the defendant’s right to be
informed, the Court held in Pecho v. People (262 SCRA
518) that the objectives of this right are:
1) To furnish the accused with such a
description of the charge against him as will enable him
to make the defense;
2) To avail himself of his conviction or acquittal
for protection against a further prosecution for the same
cause; and
3) To inform the court of the facts alleged, so
that it may decide whether they are sufficient in law to
support a conviction, if one should be had.
It is thus imperative that the Information filed with the
trial court be complete – to the end that the accused may
suitably prepare for his defense. Corollary to this, an
indictment must fully state the elements of the specific
offense alleged to have been committed as it is the recital
of the essentials of a crime which delineates the nature
and cause of accusation against the accused.
Xxx
In the case under scrutiny, the information does not
allege the minority of the victim x x x although the same
was proven during the trial x x x. The omission is not
merely formal in nature since doctrinally, an accused
cannot be held liable for more than what he is indicted
for. It matters not how conclusive and convincing the
evidence of guilt may be, but an accused cannot be
convicted of any offense, not charged in the Complaint or
Information on which he is tried or therein necessarily
included. He has a right to be informed of the nature of
the offense with which he is charged before he is put on
trial. To convict an accused of an offense higher than that
charged in the Complaint or Information on which he is
tried would constitute unauthorized denial of that right.
(People v. Bayya, 327 SCRA 771, March 10, 2000,
En Banc [Purisima])
The Right to a Fair Trial
225. What is the purpose of the rule barring trial or
sentence of an insane person? What are the reasons
underlying it?
Held: The rule barring trial or sentence of an insane
person is for the protection of the accused, rather than of
the public. It has been held that it is inhuman to require
an accused disabled by God to make a just defense for
his life or liberty. To put a legally incompetent person on
trial or to convict and sentence him is a violation of the
constitutional rights to a fair trial; and this has several
reasons underlying it. For one, the accuracy of the
proceedings may not be assured, as an incompetent
defendant who cannot comprehend the proceedings may
not appreciate what information is relevant to the proof
of his innocence. Moreover, he is not in a position to
exercise many of the rights afforded a defendant in a
criminal case, e.g., the right to effectively consult with
counsel, the right to testify in his own behalf, and the
right to confront opposing witnesses, which rights are
safeguards for the accuracy of the trial result. Second,
the fairness of the proceedings may be questioned, as
there are certain basic decisions in the course of a criminal
proceeding which a defendant is expected to make for
himself, and one of these is his plea. Third, the dignity of
the proceedings may be disrupted, for an incompetent
defendant is likely to conduct himself in the courtroom in
a manner which may destroy the decorum of the court.
Even if the defendant remains passive, his lack of
comprehension fundamentally impairs the functioning of
the trial process. A criminal proceeding is essentially an
adversarial proceeding. If the defendant is not a
conscious and intelligent participant, the adjudication
loses its character as a reasoned interaction between an
individual and his community and becomes and invective
against an insensible object. Fourth, it is important that
the defendant knows why he is being punished, a
comprehension which is greatly dependent upon his
understanding of what occurs at trial. An incompetent
defendant may not realize the moral reprehensibility of
his conduct. The societal goal of institutionalized
retribution may be frustrated when the force of the state
is brought to bear against one who cannot comprehend
its significance. (People v. Estrada, 333 SCRA 699,
718-719, June 19, 2000, En Banc [Puno])
The Right to an Impartial Trial
226. What are the two principal legal and philosophical
schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of
high profile cases?
Held: There are two (2) principal legal and philosophical
schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of
high profile cases. The British approach the problem with
the presumption that publicity will prejudice a jury. Thus,
English courts readily stay and stop criminal trials when
the right of an accused to fair trial suffers a threat . The
American approach is different. US courts assume a
skeptical approach about the potential effect of pervasive
publicity on the right of an accused to a fair trial. They
have developed different strains of tests to resolve this
issue, i.e., substantial probability of irreparable harm,
strong likelihood, clear and present danger, etc. (Estrada
v. Desierto, G.R. Nos. 146710-15, March 2, 2001,
En Banc [Puno])
227. Should the Ombudsman be stopped from
conducting the investigation of the cases filed against
petitioner (former President) Estrada due to the barrage
of prejudicial publicity on his guilt?
Held: Petitioner x x x contends that the respondent
Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the
barrage of prejudicial publicity on his guilt. He submits
that the respondent Ombudsman has developed bias and
is all set to file the criminal cases in violation of his right
to due process.
Xxx
This is not the first time the issue of trial by
publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases. In People
v. Teehankee, Jr. (249 SCRA 54 [1995]) , later reiterated
in the case of Larranaga v. Court of Appeals, et al. (287
SCRA 581 at pp. 596-597 [1998]), we laid down the
doctrine that:
“We cannot sustain appellant’s claim that he was denied
the right to impartial trial due to prejudicial publicity. It
is true that the print and broadcast media gave the case
at bar pervasive publicity, just like all high profile and high
stake criminal trials. Then and now, we rule that the right
of an accused to a fair trial is not incompatible to a free
press. To be sure, responsible reporting enhances an
accused’s right to a fair trial for, as well pointed out, a
responsible press has always been regarded as the
handmaiden of effective judicial administration, especially
in the criminal field x x x. The press does not simply
publish information about trials but guards against the
miscarriage of justice by subjecting the police,
prosecutors, and judicial processes to extensive public
scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of
an accused to fair trial. The mere fact that the trial of
appellant was given a day-to-day, gavel-to-gavel
coverage does not by itself prove that the publicity so
permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of
members of the bench from pre-trial and other off-court
publicity of sensational criminal cases. The state of the
art of our communication system brings news as they
happen straight to our breakfast tables and right to our
bedrooms. These news form part of our everyday menu
of the facts and fictions of life. For another, our idea of a
fair and impartial judge is not that of a hermit who is out
of touch with the world. We have not installed the jury
system whose members are overly protected from
publicity lest they lose their impartiality. x x x. Our judges
are learned in the law and trained to disregard off-court
evidence and on-camera performances of parties to a
litigation. Their mere exposure to publications and
publicity stunts does not per se fatally infect their
impartiality.
At best, appellant can only conjure possibility of prejudice
on the part of the trial judge due to the barrage of
publicity that characterized the investigation and trial of
the case. In Martelino, et al. v. Alejandro, et al., we
rejected this standard of possibility of prejudice and
adopted the test of actual prejudice as we ruled that to
warrant a finding of prejudicial publicity, there must be
allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage
of publicity. In the case at bar, the records do not show
that the trial judge developed actual bias against
appellant as a consequence of the extensive media
coverage of the pre-trial and trial of his case. The totality
of circumstances of the case does not prove that the trial
judge acquired a fixed opinion as a result of prejudicial
publicity which is incapable of change even by evidence
presented during the trial. Appellant has the burden to
prove this actual bias and he has not discharged the
burden.”
We expounded further on this doctrine in the
subsequent case of Webb v. Hon. Raul de Leon, etc. (247
SCRA 652 [1995]) and its companion cases, viz.:
“Again, petitioners raise the effect of prejudicial publicity
on their right to due process while undergoing preliminary
investigation. We find no procedural impediment to its
early invocation considering the substantial risk to their
liberty whole undergoing a preliminary investigation.
Xxx
The democratic settings, media coverage of trials of
sensational cases cannot be avoided and oftentimes, its
excessiveness has been aggravated by kinetic
developments in the telecommunications industry. For
sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary
investigation of the case at bar. Our daily diet of facts
and fiction about the case continues unabated even
today. Commentators still bombard the public with views
not too many of which are sober and sublime. Indeed,
even the principal actors in the case – the NBI, the
respondents, their lawyers and their sympathizers – have
participated in this media blitz. The possibility of media
abuses and their threat to a fair trial notwithstanding,
criminal trials cannot be completely closed to the press
and public. In the seminal case of Richmond Newspapers,
Inc. v. Virginia, it was wisely held:
‘x x x
(a) The historical evidence of the evolution of the criminal
trial in Anglo-American justice demonstrates conclusively
that at the time this Nation’s organic laws were adopted,
criminal trials both here and in England had long been
presumptively open, thus giving assurance that the
proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or
decisions based on secret bias or partiality. In addition,
the significant community therapeutic value of public
trials was recognized: when a shocking crime occurs, a
community reaction of outrage and public protest often
follows, and thereafter the open processes of justice serve
an important prophylactic purpose, providing an outlet for
community concern, hostility, and emotion. To work
effectively, it is important that society’s criminal process
‘satisfy the appearance of justice,’ Offutt v. United States,
348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be
provided by allowing people to observe such process.
From this unbroken, uncontradicted history, supported by
reasons as valid today as in centuries past, it must be
concluded that a presumption of openness inheres in the
very nature of a criminal trial under this Nation’s system
of justice, Cf., e.g., Levine v. United States, 362 US 610,
4 L Ed 2d 989, 80 S Ct 1038.
(b) The freedoms of speech, press, and assembly,
expressly guaranteed by the First Amendment, share a
common core purpose of assuring freedom of
communication on matters relating to the functioning of
government. In guaranteeing freedoms such as those of
speech and press, the First Amendment can be read as
protecting the right of everyone to attend trials so as give
meaning to those explicit guarantees; the First
Amendment right to receive information and ideas means,
in the context of trials, that the guarantees of speech and
press, standing alone, prohibit government from
summarily closing courtroom doors which had long been
open to the public at the time the First Amendment was
adopted. Moreover, the right of assembly is also relevant,
having been regarded not only as an independent right
but also as a catalyst to augment the free exercise of the
other First Amendment rights with which it was
deliberately linked by the draftsmen. A trial courtroom is
a public place where the people generally – and
representatives of the media – have a right to be present,
and where their presence historically has been thought to
enhance the integrity and quality of what takes place.
(c) Even though the Constitution contains no provision
which by its terms guarantees to the public the right to
attend criminal trials, various fundamental rights, not
expressly guaranteed, have been recognized as
indispensable to the enjoyment of enumerated rights.
The right to attend criminal trial is implicit in the
guarantees of the First Amendment: without the freedom
to attend such trials, which people have exercised for
centuries, important aspects of freedom of speech and of
the press could be eviscerated.’
Be that as it may, we recognize that pervasive and
prejudicial publicity under certain circumstances can
deprive an accused of his due process right to fair trial.
Thus, in Martelino, et al. v. Alejandro, et al., we held that
to warrant a finding of prejudicial publicity there must be
allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage
of publicity. In the case at bar, we find nothing in the
records that will prove that the tone and content of the
publicity that attended the investigation of petitioners
fatally infected the fairness and impartiality of the DOJ
Panel. Petitioners cannot just rely on the subliminal
effects of publicity on the sense of fairness of the DOJ
Panel, for these are basically unbeknown and beyond
knowing. To be sure, the DOJ Panel is composed of an
Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal
investigation is a factor to consider in determining
whether they can easily be blinded by the klieg lights of
publicity. Indeed, their 26-page Resolution carries no
indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence
properly adduced by the parties. The length of time the
investigation was conducted despite it summary nature
and the generosity with which they accommodated the
discovery motions of petitioners speak well of their
fairness. At no instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel on the
ground of bias resulting from their bombardment of
prejudicial publicity.”
Applying the above ruling, we hold that there is not
enough evidence to warrant this Court to enjoin the
preliminary investigation of the petitioner by the
respondent Ombudsman. Petitioner needs to offer more
than hostile headlines to discharge his burden of proof.
He needs to show more than weighty social science
evidence to successfully prove the impaired capacity of a
judge to render a bias-free decision. Well to note, the
cases against the petitioner are still undergoing
preliminary investigation by a special panel of prosecutors
in the office of the respondent Ombudsman. No
allegation whatsoever has been made by the petitioner
that the minds of the members of this special panel have
already been infected by bias because of the pervasive
prejudicial publicity against him. Indeed, the special
panel has yet to come out with its findings and the Court
cannot second guess whether its recommendation will be
unfavorable to the petitioner. (Estrada v. Desierto,
G.R. Nos. 146710-15, March 2, 2001, En Banc
[Puno])
The Right against Self-Incrimination
228. Discuss the types of immunity statutes. Which
has broader scope of protection?
Held: Our immunity statutes are of American origin. In
the United States, there are two types of statutory
immunity granted to a witness. They are the
transactional immunity and the use-and-derivative-use
immunity. Transactional immunity is broader in the scope
of its protection. By its grant, a witness can no longer be
prosecuted for any offense whatsoever arising out of the
act or transaction. In contrast, by the grant of use-and-
derivative-use immunity, a witness is only assured that
his or her particular testimony and evidence derived from
it will not be used against him or her in a subsequent
prosecution. (Mapa, Jr. v. Sandiganbayan, 231
SCRA 783, 797-798, April 26, 1994, En Banc
[Puno])
229. Is the grant of immunity to an accused willing to
testify for the government a special privilege and
therefore must be strictly construed against the accused?
Held: [W]e reject respondent court’s ruling that the
grant of section 5 immunity must be strictly construed
against the petitioners. It simplistically characterized the
grant as a special privilege, as if it was gifted by the
government, ex gratia. In taking this posture, it misread
the raison d’ etre and the long pedigree of the right
against self-incrimination vis-à-vis immunity statutes.
The days of inquisition brought about the most despicable
abuses against human rights. Not the least of these
abuses is the expert use of coerced confessions to send
to the guillotine even the guiltless. To guard against the
recurrence of this totalitarian method, the right against
self-incrimination was ensconced in the fundamental laws
of all civilized countries. Over the years, however, came
the need to assist government in its task of containing
crime for peace and order is a necessary matrix of public
welfare. To accommodate the need, the right against
self-incrimination was stripped of its absoluteness.
Immunity statutes in varying shapes were enacted which
would allow government to compel a witness to testify
despite his plea of the right against self-incrimination. To
insulate these statutes from the virus of
unconstitutionality, a witness is given what has come to
be known as transactional or a use-derivative-use
immunity x x x. Quite clearly, these immunity statutes
are not a bonanza from government. Those given the
privilege of immunity paid a high price for it – the
surrender of their precious right to be silent. Our
hierarchy of values demands that the right against self-
incrimination and the right to be silent should be accorded
greater respect and protection. Laws that tend to erode
the force of these preeminent rights must necessarily be
given a liberal interpretation in favor of the individual.
The government has a right to solve crimes but it must
do it, rightly. (Mapa, Jr. v. Sandiganbayan, 231
SCRA 783, 805-806, April 26, 1994, En Banc
[Puno])
230. May the right against self-incrimination be validly
invoked during inquiry in aid of legislation?
Held: Now to another matter. It has been held
that “a congressional committee’s right to inquire is
‘subject to all relevant limitations placed by the
Constitution on governmental action,’ including ‘the
relevant limitations of the Bill of Rights’.” (Maurice A.
Hutcheson v. U.S., 369 US 599)
In another case –
“x x x the mere semblance of legislative purpose would
not justify an inquiry in the face of the Bill of Rights. The
critical element is the existence of, and the weight to be
ascribed to, the interest of the Congress in demanding
disclosures from an unwilling witness. We cannot simply
assume, however, that every congressional investigation
is justified by a public need that over-balances any private
rights affected. To do so would be to abdicate the
responsibility placed by the Constitution upon the
judiciary to insure that the Congress does not unjustifiably
encroach upon an individual’s right to privacy nor abridge
his liberty of speech, press, religion or assembly.”
(Watkins v. US, 354 USS 178 citing US v. Rumely, 345 US
41)
One of the basic rights guaranteed by the
Constitution to an individual is the right against self-
incrimination (Sec. 17, Art. III of the Constitution). This
right construed as the right to remain completely silent
may be availed of by the accused in a criminal case; but
it may be invoked by other witnesses only as questions
are asked of them.
This distinction is enunciated by the Court in
Romeo Chavez v. The Honorable Court of Appeals, et al.
(G.R. No. L-29169, August 19, 1968, 24 SCRA 663) thus
– sentence prohibits double jeopardy of punishment for the
“Petitioner, as accused, occupies a different tier of
protection from an ordinary witness. Whereas an
ordinary witness may be compelled to take the witness
stand and claim the privilege as each question requiring
an incriminating answer is shot at him, an accused may
altogether refuse to take the witness stand and refuse to
answer any and all questions.”
Moreover, this right of the accused is extended to
respondents in administrative investigations but only if
they partake of the nature of a criminal proceeding or
analogous to a criminal proceeding. In Galman v.
Pamaran (G.R. Nos. 71208-09, August 30, 1985, 138
SCRA 294), the Court reiterated the doctrine in Cabal v.
Kapunan (6 SCRA 1059) to illustrate the right of witnesses
to invoke the right against self-incrimination not only in
criminal proceedings but also in all other types of suit.
It was held that:
“We did not therein state that since he is not an accused
and the case is not a criminal case, Cabal cannot refuse
to take the witness stand and testify, and that he can
invoke his right against self-incrimination only when a
question which tends to elicit an answer that will
incriminate him is propounded to him. Clearly then, it is
not the character of the suit involved but the nature of
the proceedings that controls. The privilege has
consistently been held to extend to all proceedings
sanctioned by law and to all cases in which punishment is
sought to be visited upon a witness, whether a party or
not.”
We do not here modify these doctrines. If we
presently rule that petitioners may not be compelled by
the respondent Committee to appear, testify and produce
evidence before it, it is only because we hold that the
questioned inquiry is not in aid of legislation and, if
pursued, would be violative of the principle of separation
of powers between the legislative and the judicial
departments of government, ordained by the
Constitution. (Bengzon, Jr. v. Senate Blue Ribbon
Committee, 203 SCRA 767, Nov. 20, 1991, En Banc
[Padilla])
The Right against Double Jeopardy
231. Discuss the two kinds of double jeopardy.
Held: Our Bill of Rights deals with two (2) kinds of double
jeopardy. The first sentence of Clause 20, Section 1,
Article III of the Constitution ordains that “no person shall
be twice put in jeopardy of punishment for the same
offense.” The second sentence of said clause provides
that “if an act is punishable by a law and an ordinance,
conviction or acquittal under either shall constitute a bar
to another prosecution for the same act.” Thus, the first
same offense whereas, the second contemplates double
jeopardy of punishment for the same act. Under the first
sentence, one may be twice put in jeopardy of
punishment of the same act, provided that he is charged
with different offenses, or the offense charged in one case
is not included in, or does not include, the crime charged
in the other case. The second sentence applies, even if
the offense charged are not the same, owing to the fact
that one constitutes a violation of an ordinance and the
other a violation of statute. If the two charges are based
on one and the same act, conviction or acquittal under
either the law or the ordinance shall bar a prosecution
under the other. Incidentally, such conviction or acquittal
is not indispensable to sustain the plea of double jeopardy
of punishment or the same offense. So long as jeopardy
has been attached under one of the informations charging
said offense, the defense may be availed of in the other
case involving the same offense, even if there has been
neither conviction nor acquittal in either case.
Elsewhere stated, where the offense charged are
penalized either by different sections of the same statute
or by different statutes, the important inquiry relates to
the identity of offenses charged. The constitutional
protection against double jeopardy is available only where
an identity is shown to exist between the earlier and the
subsequent offenses charged. The question of identity or
lack of identity of offenses is addressed by examining the
essential elements of each of the two offenses charged,
as such elements are set out in the respective legislative
definitions of the offenses involved. (People v.
Quijada, 259 SCRA 191, July 24, 1996)
232. What must be proved to substantiate a claim of
double jeopardy? When may legal jeopardy attach?
Held: To substantiate a claim of double jeopardy, the
following must be proven:
(1) A first jeopardy must have attached prior to the
second; (2) the first jeopardy must have been validly
terminated; (3) the second jeopardy must be for the same
offense, or the second offense includes or is necessarily
included in the offense charged in the first information, or
is an attempt to commit the same or is a frustration
thereof.
Legal jeopardy attaches only: (1) upon a valid indictment;
(b) before a competent court; (c) after arraignment; (d)
when a valid plea has been entered; and (e) the case was
dismissed or otherwise terminated without the express
consent of the accused. (Cuison v. CA, 289 SCRA 159,
April 15, 1998 [Panganiban])
233. In its decision in a criminal case, the Judge
promulgated only the civil aspect of the case, but not the
criminal. Will the promulgation of the criminal aspect
later constitute double jeopardy?
Held: Petitioner contends that "the promulgation by
Judge Ramos on April 4, 1995 of the Respondent Court's
decision of June 30, 1991 by reading its dispositive
portion has effectively terminated the criminal cases
against the petitioner x x x." In other words, petitioner
claims that the first jeopardy attached at that point.
The Court is not persuaded. As a rule, a criminal
prosecution includes a civil action for the recovery of
indemnity. Hence, a decision in such case disposes of
both the criminal as well as the civil liabilities of an
accused. Here, trial court promulgated only the civil
aspect of the case, but not the criminal.
[T]he promulgation of the CA Decision was not complete.
In fact and in truth, the promulgation was not merely
incomplete; it was also void. In excess of its jurisdiction,
the trial judge rendered a substantially incomplete
promulgation on April 4, 1995, and he repeated his
mistake in his April 12, 1996 Order. We emphasize that
grave abuse of discretion rendered the aforementioned
act of the trial court void. Since the criminal cases have
not yet been terminated, the first jeopardy has not yet
attached. Hence, double jeopardy cannot prosper as a
defense.
We must stress that Respondent Court's questioned
Decision did not modify or amend its July 30, 1991
Decision. It merely ordered the promulgation of the
judgment of conviction and the full execution of the
penalty it had earlier imposed on petitioner. (Cuison v.
CA, 289 SCRA 159, April 15, 1998 [Panganiban])
234. What are the exceptions to the rule that the
dismissal of a criminal case resulting in acquittal made
with the express consent of the accused or upon his own
motion will not place the accused in double jeopardy?
Held: In the cases at bar, the order of
dismissal based on a violation of the right to speedy trial
was made upon motion by counsel for petitioner before
the trial court. It was made at the instance of the
accused before the trial court, and with his express
consent. Generally, the dismissal of a criminal case
resulting in acquittal made with the express consent of
the accused or upon his own motion will not place the
accused in double jeopardy. However, this rule admits
of two exceptions, namely: insufficiency of evidence and
denial of the right to speedy trial (People v. Bans, 239
SCRA 48, 55 [1994]). Double jeopardy may attach
when the proceedings have been prolonged
unreasonably, in violation of the accused’s right to
speedy trial (Commission on Elections v. Court of
Appeals, 229 SCRA 501, 507 [1994]). (Almario v.
Court of Appeals, 355 SCRA 1, Mar. 22, 2001, 2nd
Div. [Quisumbing]
235. If the criminal case was dismissed predicated on
the right of the accused to speedy trial, but later the trial
court reconsidered its decision and allowed the case to be
reinstated as it noted that the delay in the trial was due
to circumstances beyond the control of the parties and of
the trial court, i.e., the presiding judge was promoted to
the Court of Appeals, and his successor as trial judge was
not immediately appointed, nor another judge detailed to
his sala, is there violation of the accused’s right against
double jeopardy?
Held: Here we must inquire whether there was
unreasonable delay in the conduct of the trial so that
violation of the right to speedy trial of the accused x x x
resulted. For it must be recalled that in the application of
the constitutional guaranty of the right to speedy
disposition of cases, particular regard must also be taken
of the facts and circumstances peculiar to each case
(Socrates v. Sandiganbayan, 253 SCRA 773, 788 [1996]).
Both the trial court and the appellate court noted that
after pre-trial of petitioner’s case was terminated x x x
continuous trial was set x x x. The scheduled hearings,
however, were cancelled when the presiding judge was
promoted to the Court of Appeals, and his successor as
trial judge was not immediately appointed, nor another
judge detailed to his sala.
Xxx
As observed by respondent appellate court, delay
in the trial was due to circumstances beyond the control
of the parties and of the trial court. X x x. Thus, after a
closer analysis of these successive events, the trial court
realized that the dates of the hearings were transferred
for valid grounds. Hence, the trial court set aside its initial
order and reinstated the cases against petitioner, which
order the appellate court later sustained.
That there was no unreasonable delay of the
proceedings is apparent from the chronology of the
hearings with the reasons for their postponements or
transfers. X x x
There being no oppressive delay in the
proceedings, and no postponements unjustifiably sought,
we concur with the conclusion reached by the Court of
Appeals that petitioner’s right to speedy trial had not been
infringed. Where the right of the accused to speedy trial
had not been violated, there was no reason to support the
initial order of dismissal.
It follows that petitioner cannot invoke the
constitutional right against double jeopardy when that
order was reconsidered seasonably (People v. Leviste,
255 SCRA 238, 249 [1996]). For as petitioner’s right to
speedy trial was not transgressed, this exception to the
fifth element of double jeopardy – that the defendant was
acquitted or convicted, or the case was dismissed or
otherwise terminated without the express consent of the
accused – was not met. The trial court’s initial order of
dismissal was upon motion of petitioner’s counsel, hence
made with the express consent of petitioner. That being
the case, despite the reconsideration of said order, double
jeopardy did not attach. As this Court had occasion to
rule in People v. Tampal (244 SCRA 202), reiterated in
People v. Leviste (Ibid.), where we overturned an order
of dismissal by the trial court predicated on the right to
speedy trial –
It is true that in an unbroken line of cases, we have held
that the dismissal of cases on the ground of failure to
prosecute is equivalent to an acquittal that would bar
further prosecution of the accused for the same offense.
It must be stressed, however, that these dismissals were
predicated on the clear right of the accused to speedy
trial. These cases are not applicable to the petition at
bench considering that the right of the private
respondents to speedy trial has not been violated by the
State. For this reason, private respondents cannot invoke
their right against double jeopardy.
Both the trial court and the Court of Appeals
were thus not in error when they allowed reinstatement
of the cases against petitioner. (Almario v. Court of
Appeals, 355 SCRA 1, Mar. 22, 2001, 2nd Div.
[Quisumbing]
236. Is there double jeopardy when an accused was
acquitted in a criminal case for reckless imprudence but
the civil aspect of the case was elevated to the Court of
Appeals and the latter found him liable for indemnity
and damages?
Held: Petitioner opines that the Court of Appeals
should not have disturbed the findings of the trial court
on the lack of negligence or reckless imprudence under
the guise of determining his civil liability. He argues that
the trial court’s finding that he was neither imprudent
nor negligent was the basis for his acquittal, and not
reasonable doubt. He submits that in finding him liable
for indemnity and damages, the appellate court not only
placed his acquittal in suspicion, but also put him in
“double jeopardy.”
Private respondents contend that while the trial court
found that petitioner’s guilt had not been proven beyond
reasonable doubt, it did not state in clear and
unequivocal terms that petitioner was not recklessly
imprudent or negligent. Hence, impliedly the trial court
acquitted him on reasonable doubt. Since civil liability is
not extinguished in criminal cases, if the acquittal is
based on reasonable doubt, the Court of Appeals had to
review the findings of the trial court to determine if
there was a basis for awarding indemnity and damages.
Preliminarily, petitioner’s claim that the decision of the
appellate court awarding indemnity placed him in double
jeopardy is misplaced. X x x. When a person is charged
with an offense and the case is terminated either by
acquittal or conviction or in any manner without the
consent of the accused, the latter cannot again be
charged with the same or identical offense (Melo v.
People, 85 Phil. 766, 768 [1950]). This is double
jeopardy. For double jeopardy to exist, the following
elements must be established: (1) a first jeopardy must
have attached prior to the second; (2) the first jeopardy
must have terminated; and (3) the second jeopardy
must be for the same offense as the first (People v.
Bocar, 138 SCRA 166, 171 [1985]). In the instant case,
petitioner had once been placed in jeopardy by the filing
of Criminal Case No. 066 and the jeopardy was
terminated by his discharge. The judgment of acquittal
became immediately final. Note, however, that what
was elevated to the Court of Appeals by private
respondents was the civil aspect of Criminal Case No.
066. Petitioner was not charged anew in CA-G.R. CV
No. 19240 with a second criminal offense identical to the
first offense. The records clearly show that no second
criminal offense was being imputed to petitioner on
appeal. In modifying the lower court’s judgment, the
appellate court did not modify the judgment of acquittal.
Nor did it order the filing of a second criminal cases
against petitioner for the same offense. Obviously,
therefore, there was no second jeopardy to speak of.
Petitioner’s claim of having been placed in double
jeopardy is incorrect.
Our law recognizes two kinds of acquittal, with different
effects on the civil liability of the accused. First is an
acquittal on the ground that the accused is not the
author of the act or omission complained of. This
instance closes the door to civil liability, for a person
who has been found to be not the perpetrator of any act
or omission cannot and can never be held liable for such
or omission (Almeida, et al. v. Abaroa, 8 Phil. 178, 181
[1907]; other citations omitted.) There being no delict,
civil liability ex delicto is out of the question, and the civil
action, if any, which may be instituted must be based on
grounds other than the delict complained of. This is the
situation contemplated in Rule 111 of the Rules of Court.
The second instance is an acquittal based on reasonable
doubt on the guilt of the accused. In this case, even if
the guilt of the accused has not been satisfactorily
established, he is not exempt from civil liability which
may be proved by preponderance of evidence only
(Manahan, Jr. v. Court of Appeals, 255 SCRA 202, 214
[1996], citing Padilla v. Court of Appeals, 129 SCRA 558
[1984]). This is the situation contemplated in Article 29
of the Civil Code, where the civil action for damages is
“for the same act or omission.” Although the two
actions have different purposes, the matters discussed in
the civil case are similar to those discussed in the
criminal case. However, the judgment in the criminal
proceeding cannot be read in evidence in the civil action
to establish any fact there determined, even though
both actions involve the same act or omission (Almeida
Chantangco and Lete v. Abaroa, supra note 13, at
1061). The reason for this rule is that the parties are
not the same and secondarily, different rules of evidence
are applicable. Hence, notwithstanding herein
petitioner’s acquittal, the Court of Appeals in
determining whether Article 29 applied, was not
precluded from looking into the question of petitioner’s
negligence or reckless imprudence. (Manantan v.
Court of Appeals, 350 SCRA 387, Jan. 29, 2001,
2nd Div. [Quisumbing])
The Right against Ex Post Facto Laws and Bills of
Attainder
237. What is a bill of attainder? Is P.D. 1866 a bill of
attainder?
Held: [T]he Court, in People v. Ferrer (G.R. Nos. L-
32613-14, December 27, 1972, 48 SCRA 382), defined a
bill of attainder as a legislative act which inflicts
punishment on individuals or members of a particular
group without a judicial trial. Essential to a bill of
attainder are a specification of certain individuals or a
group of individuals, the imposition of a punishment,
penal or otherwise, and the lack of judicial trial. This last
element, the total lack of court intervention in the finding
of guilt and the determination of the actual penalty to be
imposed, is the most essential. P.D. No. 1866 does not
possess the elements of a bill of attainder. It does not
seek to inflict punishment without a judicial trial.
Nowhere in the measure is there a finding of guilt and an
imposition of a corresponding punishment. What the
decree does is to define the offense and provide for the
penalty that may be imposed, specifying the qualifying
circumstances that would aggravate the offense. There
is no encroachment on the power of the court to
determine after due hearing whether the prosecution has
proved beyond reasonable doubt that the offense of
illegal possession of firearms has been committed and
that the qualifying circumstances attached to it has been
established also beyond reasonable doubt as the
Constitution and judicial precedents require. (Misolas v.
Panga, 181 SCRA 648, 659-660, Jan. 30, 1990, En
Banc [Cortes])
238. What is an ex post facto law? Is R.A. No. 8249
an ex post facto law?
Held: Ex post facto law, generally, prohibits
retrospectivity of penal laws. R.A. 8249 is not a penal law.
It is a substantive law on jurisdiction which is not penal in
character. Penal laws are those acts of the Legislature
which prohibit certain acts and establish penalties for their
violations; or those that define crimes, treat of their
nature, and provide for their punishment. R.A. 7975,
which amended P.D. 1606 as regards the
Sandiganbayan’s jurisdiction, its mode of appeal and
other procedural matters, has been declared by the Court
as not a penal law, but clearly a procedural statute, i.e.,
one which prescribes rules of procedure by which courts
applying laws of all kinds can properly administer justice.
Not being a penal law, the retroactive application of R.A.
8249 cannot be challenged as unconstitutional.
Petitioner’s and intervenors’ contention that their right to
a two-tiered appeal which they acquired under R.A. 7975
has been diluted by the enactment of R.A. 8249, is
incorrect. The same contention has already been rejected
by the court several times considering that the right to
appeal is not a natural right but statutory in nature that
can be regulated by law. The mode of procedure
provided for in the statutory right of appeal is not included
in the prohibition against ex post facto laws. R.A. 8249
pertains only to matters of procedure, and being merely
an amendatory statute it does not partake the nature of
an ex post facto law. It does not mete out a penalty and,
therefore, does not come within the prohibition.
Moreover, the law did not alter the rules of evidence or
the mode of trial. It has been ruled that adjective statutes
may be made applicable to actions pending and
unresolved at the time of their passage.
At any rate, R.A. 8249 has preserved the accused’s right
to appeal to the Supreme Court to review questions of
law. On the removal of the intermediate review of facts,
the Supreme Court still has the power of review to
determine if the presumption of innocence has been
convincingly overcome. (Panfilo M. Lacson v. The
Executive Secretary, et. al., G.R. No. 128096, Jan.
20, 1999 [Martinez])
ADMINISTRATIVE LAW
239. Describe the Administrative Code of 1987
Held: The Code is a general law and “incorporates in a
unified document the major structural, functional and
procedural principles of governance (Third Whereas
Clause, Administrative Code of 1987) and “embodies
changes in administrative structures and procedures
designed to serve the people.” (Fourth Whereas Clause,
Administrative Code of 1987) The Code is divided into
seven (7) books. These books contain provisions on the
organization, powers and general administration of
departments, bureaus and offices under the executive
branch, the organization and functions of the
Constitutional Commissions and other constitutional
bodies, the rules on the national government budget, as
well as guidelines for the exercise by administrative
agencies of quasi-legislative and quasi-judicial powers.
The Code covers both the internal administration, i.e.,
internal organization, personnel and recruitment,
supervision and discipline, and the effects of the functions
performed by administrative officials on private
individuals or parties outside government. (Ople v.
Torres, G.R. No. 127685, July 23, 1998 [Puno])
240. What is administrative power?
Held: Administrative power is concerned with the work
of applying policies and enforcing orders as determined
by proper governmental organs. It enables the President
to fix a uniform standard of administrative efficiency and
check the official conduct of his agents. To this end, he
can issue administrative orders, rules and regulations.
(Ople v. Torres, G.R. No. 127685, July 23, 1998
[Puno])
241. What is an administrative order?
Held: An administrative order is an ordinance issued by
the President which relates to specific aspects in the
administrative operation of government. It must be in
harmony with the law and should be for the sole purpose
of implementing the law and carrying out the legislative
policy. (Ople v. Torres, G.R. No. 127685, July 23,
1998 [Puno])
242. What is the Government of the Republic of the
Philippines?
Answer: The Government of the Republic of the
Philippines refers to the corporate governmental entity
through which the functions of the government are
exercised throughout the Philippines, including, save as
the contrary appears from the context, the various arms
through which political authority is made effective in the
Philippines, whether pertaining to the autonomous
regions, the provincial, city, municipal or barangay
subdivisions or other forms of local government. (Sec.
2[1], Introductory Provisions, Executive Order No.
292)
243. What is a government instrumentality? What are
included in the term government instrumentality?
Answer: A government instrumentality refers to any
agency of the national government, not integrated within
the department framework, vested with special functions
or jurisdiction by law, endowed with some if not all
corporate powers, administering special funds, enjoying
operational autonomy, usually through a charter. The
term includes regulatory agencies, chartered institutions
and government-owned or controlled corporations. (Sec.
2[10], Introductory Provisions, Executive Order
No. 292)
244. What is a regulatory agency?
Answer: A regulatory agency refers to any agency
expressly vested with jurisdiction to regulate, administer
or adjudicate matters affecting substantial rights and
interest of private persons, the principal powers of which
are exercised by a collective body, such as a commission,
board or council. (Sec. 2[11], Introductory
Provisions, Executive Order No. 292)
245. What is a chartered institution?
Answer: A chartered institution refers to any agency
organized or operating under a special charter, and
vested by law with functions relating to specific
constitutional policies or objectives. This term includes
state universities and colleges and the monetary authority
of the State. (Section 2[12], Introductory
Provisions, Executive Order No. 292)
246. When is a government-owned or controlled
corporation deemed to be performing proprietary
function? When is it deemed to be performing
governmental function?
Held: Government-owned or controlled corporations
may perform governmental or proprietary functions or
both, depending on the purpose for which they have been
created. If the purpose is to obtain special corporate
benefits or earn pecuniary profit, the function is
proprietary. If it is in the interest of health, safety and for
the advancement of public good and welfare, affecting
the public in general, the function is governmental.
Powers classified as “proprietary” are those intended for
private advantage and benefit. (Blaquera v. Alcala,
295 SCRA 366, 425, Sept. 11, 1998, En Banc
[Purisima])
247. Does the petition for annulment of proclamation
of a candidate merely involve the exercise by the
COMELEC of its administrative power to review, revise
and reverse the actions of the board of canvassers and,
therefore, justifies non-observance of procedural due
process, or does it involve the exercise of the COMELEC's
quasi-judicial function?
Held: Taking cognizance of private respondent's
petitions for annulment of petitioner's proclamation,
COMELEC was not merely performing an administrative
function. The administrative powers of the COMELEC
include the power to determine the number and location
of polling places, appoint election officials and inspectors,
conduct registration of voters, deputize law enforcement
agencies and governmental instrumentalities to ensure
free, orderly, honest, peaceful and credible elections,
register political parties, organizations or coalition,
accredit citizen's arms of the Commission, prosecute
election offenses, and recommend to the President the
removal of or imposition of any other disciplinary action
upon any officer or employee it has deputized for violation
or disregard of its directive, order or decision. In addition,
the Commission also has direct control and supervision
over all personnel involved in the conduct of election.
However, the resolution of the adverse claims of private
respondent and petitioner as regards the existence of a
manifest error in the questioned certificate of canvass
requires the COMELEC to act as an arbiter. It behooves
the Commission to hear both parties to determine the
veracity of their allegations and to decide whether the
alleged error is a manifest error. Hence, the resolution of
this issue calls for the exercise by the COMELEC of its
quasi-judicial power. It has been said that where a power
rests in judgment or discretion, so that it is of judicial
nature or character, but does not involve the exercise of
functions of a judge, or is conferred upon an officer other
than a judicial officer, it is deemed quasi-judicial. The
COMELEC therefore, acting as quasi-judicial tribunal,
cannot ignore the requirements of procedural due process
in resolving the petitions filed by private respondent.
(Federico S. Sandoval v. COMELEC, G.R. No.
133842, Jan. 26, 2000 [Puno])
248. Discuss the Doctrine of Primary Jurisdiction (or
Prior Resort).
Held: Courts cannot and will not resolve a controversy
involving a question which is within the jurisdiction of an
administrative tribunal, especially where the question
demands the exercise of sound administrative discretion
requiring the special knowledge, experience and services
of the administrative tribunal to determine technical and
intricate matters of fact.
In recent years, it has been the jurisprudential trend to
apply this doctrine to cases involving matters that
demand the special competence of administrative
agencies even if the question involved is also judicial in
character. It applies “where a claim is originally
cognizable in the courts, and comes into play whenever
enforcement of the claim requires the resolution of issues
which, under a regulatory scheme, have been placed
within the special competence of an administrative body;
in such case, the judicial process is suspended pending
referral of such issues to the administrative body for its
view.”
In cases where the doctrine of primary jurisdiction is
clearly applicable, the court cannot arrogate unto itself
the authority to resolve a controversy, the jurisdiction
over which is lodged with an administrative body of
special competence. (Villaflor v. CA, 280 SCRA 287)
249. Discuss the Doctrine of Exhaustion of
Administrative Remedies. Enumerate exceptions thereto.
Held: 1. Before a party is allowed to seek the
intervention of the court, it is a pre-condition that he
should have availed of all the means of administrative
processes afforded him. Hence, if a remedy within the
administrative machinery can still be resorted to by giving
the administrative officer concerned every opportunity to
decide on a matter that comes within his jurisdiction then
such remedy should be exhausted first before the court’s
judicial power can be sought. The premature invocation
of court’s jurisdiction is fatal to one’s cause of action.
Accordingly, absent any finding of waiver or estoppel the
case is susceptible of dismissal for lack of cause of action.
This doctrine of exhaustion of administrative remedies
was not without its practical and legal reasons, for one
thing, availment of administrative remedy entails lesser
expenses and provides for a speedier disposition of
controversies. It is no less true to state that the courts of
justice for reasons of comity and convenience will shy
away from a dispute until the system of administrative
redress has been completed and complied with so as to
give the administrative agency concerned every
opportunity to correct its error and to dispose of the case.
This doctrine is disregarded:
1) when there is a violation of due process;
2) when the issue involved is purely a legal
question;
3) when the administrative action is patently
illegal amounting to lack or excess of jurisdiction;
4) when there is estoppel on the part of the
administrative agency concerned;
5) when there is irreparable injury;
6) when the respondent is a department
secretary whose acts as an alter ego of the President
bears the implied and assumed approval of the latter;
7) when to require exhaustion of administrative
remedies would be unreasonable;
8) when it would amount to a nullification of a
claim;
9) when the subject matter is a private land in
land case proceeding;
10) when the rule does not provide a plain,
speedy and adequate remedy, and
11) when there are circumstances indicating the
urgency of judicial intervention.
(Paat v. CA, 266 SCRA 167 [1997])
2. Non-exhaustion of administrative remedies is not
jurisdictional. It only renders the action premature, i.e.,
claimed cause of action is not ripe for judicial
determination and for that reason a party has no cause of
action to ventilate in court. (Carale v. Abarintos, 269
SCRA 132)
250. When may the Government not validly invoke the
rule that prescription does not run against the State?
Held: While it is true that prescription does not run
against the State, the same may not be invoked by the
government in this case since it is no longer interested in
the subject matter. While Camp Wallace may have
belonged to the government at the time Rafael Galvez’s
title was ordered cancelled in Land Registration Case No.
N-361, the same no longer holds true today.
Republic Act No. 7227, otherwise known as the Base
Conversion and Development Act of 1992, created the
Bases Conversion and Development Authority. X x x
Xxx
With the transfer of Camp Wallace to the BCDA, the
government no longer has a right or interest to protect.
Consequently, the Republic is not a real party in interest
and it may not institute the instant action. Nor may it
raise the defense of imprescriptibility, the same being
applicable only in cases where the government is a party
in interest. X x x. Being the owner of the areas covered
by Camp Wallace, it is the Bases Conversion and
Development Authority, not the Government, which
stands to be benefited if the land covered by TCT No. T-
5710 issued in the name of petitioner is cancelled.
Nonetheless, it has been posited that the transfer of
military reservations and their extensions to the BCDA is
basically for the purpose of accelerating the sound and
balanced conversion of these military reservations into
alternative productive uses and to enhance the benefits
to be derived from such property as a measure of
promoting the economic and social development,
particularly of Central Luzon and, in general, the country’s
goal for enhancement (Section 2, Republic Act No. 7227).
It is contended that the transfer of these military
reservations to the Conversion Authority does not amount
to an abdication on the part of the Republic of its
interests, but simply a recognition of the need to create a
body corporate which will act as its agent for the
realization of its program. It is consequently asserted that
the Republic remains to be the real party in interest and
the Conversion Authority merely its agent.
We, however, must not lose sight of the fact that the
BCDA is an entity invested with a personality separate and
distinct from the government. X x x
It may not be amiss to state at this point that the
functions of government have been classified into
governmental or constituent and proprietary or
ministrant. While public benefit and public welfare,
particularly, the promotion of the economic and social
development of Central Luzon, may be attributable to the
operation of the BCDA, yet it is certain that the functions
performed by the BCDA are basically proprietary in
nature. The promotion of economic and social
development of Central Luzon, in particular, and the
country’s goal for enhancement, in general, do not make
the BCDA equivalent to the Government. Other
corporations have been created by government to act as
its agents for the realization of its programs, the SSS,
GSIS, NAWASA and the NIA, to count a few, and yet, the
Court has ruled that these entities, although performing
functions aimed at promoting public interest and public
welfare, are not government-function corporations
invested with governmental attributes. It may thus be
said that the BCDA is not a mere agency of the
Government but a corporate body performing proprietary
functions.
Xxx
Having the capacity to sue or be sued, it should thus be
the BCDA which may file an action to cancel petitioner’s
title, not the Republic, the former being the real party in
interest. One having no right or interest to protect cannot
invoke the jurisdiction of the court as a party plaintiff in
an action (Ralla v. Ralla, 199 SCRA 495 [1991]). A suit
may be dismissed if the plaintiff or the defendant is not a
real party in interest. X x x.
However, E.B. Marcha Transport Co., Inc. v. IAC (147
SCRA 276 [1987]) is cited as authority that the Republic
is the proper party to sue for the recovery of possession
of property which at the time of the installation of the suit
was no longer held by the national government body but
by the Philippine Ports Authrotiy. In E.B. Marcha, the
Court ruled:
It can be said that in suing for the recovery of the rentals,
the Republic of the Philippines, acted as principal of the
Philippine Ports Authority, directly exercising the
commission it had earlier conferred on the latter as its
agent. We may presume that, by doing so, the Republic
of the Philippines did not intend to retain the said rentals
for its own use, considering that by its voluntary act it had
transferred the land in question to the Philippine Ports
Authority effective July 11, 1974. The Republic of the
Philippines had simply sought to assist, not supplant, the
Philippine Ports Authority, whose title to the disputed
property it continues to recognize. We may expect the
that the said rentals, once collected by the Republic of the
Philippines, shall be turned over by it to the Philippine
Ports Authority conformably to the purposes of P.D. No.
857.
E.B. Marcha is, however, not on all fours with the case at
bar. In the former, the Court considered the Republic a
proper party to sue since the claims of the Republic and
the Philippine Ports Authority against the petitioner
therein were the same. To dismiss the complaint in E.B.
Marcha would have brought needless delay in the
settlement of the matter since the PPA would have to
refile the case on the same claim already litigated upon.
Such is not the case here since to allow the government
to sue herein enables it to raise the issue of
imprescriptibility, a claim which is not available to the
BCDA. The rule that prescription does not run against the
State does not apply to corporations or artificial bodies
created by the State for special purposes, it being said
that when the title of the Republic has been divested, its
grantees, although artificial bodies of its own creation, are
in the same category as ordinary persons (Kingston v.
LeHigh Valley Coal Co., 241 Pa 469). By raising the claim
of imprescriptibility, a claim which cannot be raised by the
BCDA, the Government not only assists the BCDA, as it
did in E.B. Marcha, it even supplants the latter, a course
of action proscribed by said case.
Moreover, to recognize the Government as a proper party
to sue in this case would set a bad precedent as it would
allow the Republic to prosecute, on behalf of government-
owned or controlled corporations, causes of action which
have already prescribed, on the pretext that the
Government is the real party in interest against whom
prescription does not run, said corporations having been
created merely as agents for the realization of
government programs.
It should also be noted that petitioner is unquestionably
a buyer in good faith and for value, having acquired the
property in 1963, or 5 years after the issuance of the
original certificate of title, as a third transferee. If only
not to do violence and to give some measure of respect
to the Torrens System, petitioner must be afforded some
measure of protection. (Shipside Incorporated v.
Court of Appeals, 352 SCRA 334, Feb. 20, 2001, 3rd
Div. [Melo])
251. Discuss the nature and functions of the NTC,
and analyze its powers and authority as well as the laws,
rules and regulations that govern its existence and
operations.
Held: The NTC was created pursuant to
Executive Order No. 546, promulgated on July 23, 1979.
It assumed the functions formerly assigned to the Board
of Communications and the Communications Control
Bureau, which were both abolished under the said
Executive Order. Previously, the NTC’s function were
merely those of the defunct Public Service Commission
(PSC), created under Commonwealth Act No. 146, as
amended, otherwise known as the Public Service Act,
considering that the Board of Communications was the
successor-in-interest of the PSC. Under Executive Order
No. 125-A, issued in April 1987, the NTC became an
attached agency of the Department of Transportation
and Communications.
In the regulatory communications industry, the
NTC has the sole authority to issue Certificates of Public
Convenience and Necessity (CPCN) for the installation,
operation, and maintenance of communications facilities
and services, radio communications systems, telephone
and telegraph systems. Such power includes the
authority to determine the areas of operations of
applicants for telecommunications services. Specifically,
Section 16 of the Public Service Act authorizes the then
PSC, upon notice and hearing, to issue Certificates of
Public Convenience for the operation of public services
within the Philippines “whenever the Commission finds
that the operation of the public service proposed and the
authorization to do business will promote the public
interests in a proper and suitable manner.”
(Commonwealth Act No. 146, Section 16[a]) The
procedure governing the issuance of such authorizations
is set forth in Section 29 of the said Act x x x.
(Republic v. Express Telecommunication Co., Inc.,
373 SCRA 316, Jan. 15, 2002, 1st Div. [Ynares-
Santiago])
252. Is the filing of the administrative rules and
regulations with the UP Law Center the operative act
that gives the rules force and effect?
Held: In granting Bayantel the provisional
authority to operate a CMTS, the NTC applied Rule 15,
Section 3 of its 1978 Rules of Practice and Procedure,
which provides:
Sec. 3. Provisional Relief. – Upon the filing of an
application, complaint or petition or at any stage
thereafter, the Board may grant on motion of the
pleader or on its own initiative, the relief prayed for,
based on the pleading, together with the affidavits and
supporting documents attached thereto, without
prejudice to a final decision after completion of the
hearing which shall be called within thirty (30) days from
grant of authority asked for. (italics ours)
Respondent Extelcom, however, contends that
the NTC should have applied the Revised Rules which
were filed with the Office of the National Administrative
Register on February 3, 1993. These Revised Rules
deleted the phrase “on its own initiative”; accordingly, a
provisional authority may be issued only upon filing of
the proper motion before the Commission.
In answer to this argument, the NTC, through
the Secretary of the Commission, issued a certification to
the effect that inasmuch as the 1993 Revised Rules have
not been published in a newspaper of general
circulation, the NTC has been applying the 1978 Rules.
 The absence of publication, coupled with the
certification by the Commissioner of the NTC stating that
the NTC was still governed by the 1987 Rules, clearly
indicate that the 1993 Revised Rules have not taken
effect at the time of the grant of the provisional
authority to Bayantel. The fact that the 1993 Revised
Rules were filed with the UP Law Center on February 3,
1993 is of no moment. There is nothing in the
Administrative Code of 1987 which implies that the filing
of the rules with the UP Law Center is the operative act
that gives the rules force and effect. Book VII, Chapter
2, Section 3 thereof merely states:
Filing. – (1) Every agency shall file with the University of
the Philippines Law Center three (3) certified copies of
every rule adopted by it. Rules in force on the date of
effectivity of this Code which are not filed within three
(3) months from the date shall not thereafter be the
basis of any sanction against any party or persons.
(2) The records officer of the agency, or his equivalent
functionary, shall carry out the requirements of this
section under pain of disciplinary action.
(3) A permanent register of all rules shall be kept by the
issuing agency and shall be open to public inspection.
The National Administrative Register is merely a
bulletin of codified rules and it is furnished only to the
Office of the President, Congress, all appellate courts,
the National Library, other public offices or agencies as
the Congress may select, and to other persons at a price
sufficient to cover publication and mailing or distribution
costs (Administrative Code of 1987, Book VII, Chapter 2,
Section 7). In a similar case, we held:
This does not imply, however, that the subject
Administrative Order is a valid exercise of such quasi-
legislative power. The original Administrative Order
issued on August 30, 1989, under which the
respondents filed their applications for importations, was
not published in the Official Gazette or in a newspaper
of general circulation. The questioned Administrative
Order, legally, until it is published, is invalid within the
context of Article 2 of Civil Code, which reads:
“Article 2. Laws shall take effect after fifteen days
following the completion of their publication in the
Official Gazette (or in a newspaper of general circulation
in the Philippines), unless it is otherwise provided. X x x”
The fact that the amendments to Administrative Order
No. SOCPEC 89-08-01 were filed with, and published by
the UP Law Center in the National Administrative
Register, does not cure the defect related to the
effectivity of the Administrative Order.
This Court, in Tanada v. Tuvera (G.R. No. L-63915,
December 29, 1986, 146 SCRA 446) stated, thus:
“We hold therefore that all statutes, including those of
local application and private laws, shall be published as
a condition for their effectivity, which shall begin fifteen
days after publication unless a different effectivity is
fixed by the legislature.
Covered by this rule are presidential decrees and
executive orders promulgated by the President in the
exercise of legislative power or, at present, directly
conferred by the Constitution. Administrative Rules and
Regulations must also be published if their purpose is to
enforce or implement existing law pursuant also to a
valid delegation.
Interpretative regulations and those merely internal in
nature, that is, regulating only the personnel of the
administrative agency and not the public, need not be
published. Neither is publication required of the so-
called letters of instructions issued by administrative
superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of
their duties.
Xxx
We agree that the publication must be in full or it is no
publication at all since its purpose is to inform the public
of the contents of the laws.”
The Administrative Order under consideration is one of
those issuances which should be published for its
effectivity, since its purpose is to enforce and implement
an existing law pursuant to a valid delegation, i.e., P.D.
1071, in relation to LOI 444 and EO 133 (Philippine
International Trading Corp. v. Angeles, 263 SCRA 421,
446-447 [1996]).
Thus, publication in the Official Gazette or a
newspaper of general circulation is a condition sine qua
non before statutes, rules or regulations can take effect.
This is explicit from Executive Order No. 200, which
repealed Article 2 of the Civil Code, and which states
that:
Laws shall take effect after fifteen days following the
completion of their publication either in the Official
Gazette or in a newspaper of general circulation in the
Philippines, unless it is otherwise provided (E.O. 200,
Section 1).
The Rules of Practice and Procedure of the NTC,
which implements Section 29 of the Public Service Act
(C.A. 146, as amended), fall squarely within the scope of
these laws, as explicitly mentioned in the case of Tanada
v. Tuvera (146 SCRA 446 [1986]).
Our pronouncement in Tanada v. Tuvera is clear and
categorical. Administrative rules and regulations must
be published if their purpose is to enforce or implement
existing law pursuant to a valid delegation. The only
exception are interpretative regulations, those merely
internal in nature, or those so-called letters of
instructions issued by administrative superiors
concerning the rules and guidelines to be followed by
their subordinates in the performance of their duties
(PHILSA International Placement & Services Corp. v.
Secretary of Labor, G.R. No. 103144, April 4, 2001, 356
SCRA 174).
Hence, the 1993 Revised Rules should be
published in the Official Gazette or in a newspaper of
general circulation before it can take effect. Even the
1993 Revised Rules itself mandates that said Rules shall
take effect only after their publication in a newspaper of
general circulation (Section 20 thereof). In the absence
of such publication, therefore, it is the 1978 Rules that
governs. (Republic v. Express Telecommunication
Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1st Div.
[Ynares-Santiago])
253. May a person be held liable for violation of an
administrative regulation which was not published?
Held: Petitioner insists, however, that it cannot
be held liable for illegal exaction as POEA Memorandum
Circular No. II, Series of 1983, which enumerated the
allowable fees which may be collected from applicants,
is void for lack of publication.
There is merit in the argument.
In Tanada v. Tuvera (136 SCRA 27 [1985]), the
Court held, as follows:
“We hold therefore that all statutes, including those of
local application and private laws, shall be published as
a condition for their effectivity, which shall begin fifteen
days after publication unless a different effectivity date
is fixed by the legislature.
Covered by this rule are presidential decrees and
executive orders promulgated by the President in the
exercise of legislative powers whenever the same are
validly delegated by the legislature or, at present,
directly conferred by the Constitution. Administrative
rules and regulations must also be published if their
purpose is to enforce or implement existing law pursuant
to a valid delegation.
Interpretative regulations and those merely internal in
nature, that is, regulating only the personnel of the
administrative agency and the public, need not be
published. Neither is publication required of the so-
called letter of instructions issued by the administrative
superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of
their duties.”
Applying this doctrine, we have previously
declared as having no force and effect the following
administrative issuances: a) Rules and Regulations
issued by the Joint Ministry of Health-Ministry of Labor
and Employment Accreditation Committee regarding the
accreditation of hospitals, medical clinics and
laboratories (Joint Ministry of Health-Ministry of Labor
and Employment Accreditation Committee v. Court of
Appeals, 196 SCRA 263 [1991]); b) Letter of Instruction
No. 416 ordering the suspension of payments due and
payable by distressed copper mining companies to the
national government (Caltex Philippines, Inc. v. Court of
Appeals, 208 SCRA 726 [1992]); c) Memorandum
Circulars issued by the POEA regulating the recruitment
of domestic helpers to Hong Kong (Phil. Association of
Service Exporters v. Torres, 212 SCRA 298 [1992]); d)
Administrative Order No. SOCPEC 89-08-01 issued by
the Philippine International Trading Corporation
regulating applications for importation from the People’s
Republic of China (Philippine International Trading
Corporation v. Angeles, 263 SCRA 421 [1996]); and e)
Corporate Compensation Circular No. 10 issued by the
Department of Budget and Management discontinuing
the payment of other allowances and fringe benefits to
government officials and employees (De Jesus v.
Commission on Audit, 294 SCRA 152 [1998). In all
these cited cases, the administrative issuances
questioned therein were uniformly struck down as they
were not published or filed with the National
Administrative Register as required by the Administrative
Code of 1987 (Administrative Code of 1987, Book VII,
chapter 2, Section 3).
POEA memorandum Circular No. 2, Series of
1983 must likewise be declared ineffective as the same
was never published or filed with the National
Administrative Register.
POEA Memorandum Circular No. 2, Series of
1983 provides for the applicable schedule of placement
and documentation fees for private employment
agencies or authority holders. Under the said Order, the
maximum amount which may be collected from
prospective Filipino overseas workers is P2,500.00. The
said circular was apparently issued in compliance with
the provisions of Article 32 of the Labor Code x x x.
It is thus clear that the administrative circular
under consideration is one of those issuances which
should be published for its effectivity, since its purpose
is to enforce and implement an existing law pursuant to
a valid delegation (Philippine International Trading
Corporation v. Angeles, supra.). Considering that POEA
Administrative Circular No. 2, Series of 1983 has not as
yet been published or filed with the National
Administrative Register, the same is ineffective and may
not be enforced. (Philsa International Placement
and Services Corporation v. Secretary of Labor
and Employment, 356 SCRA 174, April 4, 2001, 3rd
Div., [Gonzaga-Reyes])
254. Does the publication requirement apply as well
to administrative regulations addressed only to a specific
group and not to the general public?
Held: The Office of the Solicitor General
likewise argues that the questioned administrative
circular is not among those requiring publication
contemplated by Tanada v. Tuvera as it is addressed
only to a specific group of persons and not to the
general public.
Again, there is no merit in this argument.
The fact that the said circular is addressed only
to a specified group, namely private employment
agencies or authority holders, does not take it away
from the ambit of our ruling in Tanada v. Tuvera. In the
case of Phil. Association of Service Exporters v. Torres
((212 SCRA 298 [1992]), the administrative circulars
questioned therein were addressed to an even smaller
group, namely Philippine and Hong Kong agencies
engaged in the recruitment of workers for Hong Kong,
and still the Court ruled therein that, for lack of proper
publication, the said circulars may not be enforced or
implemented.
Our pronouncement in Tanada v. Tuvera is clear
and categorical. Administrative rules and regulations
must be published if their purpose is to enforce or
implement existing law pursuant to a valid delegation.
The only exceptions are interpretative regulations, those
merely internal in nature, or those so-called letters of
instructions issued by administrative superiors
concerning the rules and guidelines to be followed by
their subordinates in the performance of their duties.
Administrative Circular No. 2, Series of 1983 has not
been shown to fall under any of these exceptions.
In this regard, the Solicitor General’s reliance on the
case of Yaokasin v. Commissioner of Customs (180
SCRA 599 [1989]) is misplaced. In the said case, the
validity of certain Customs Memorandum Orders were
upheld despite their lack of publication as they were
addressed to a particular class of persons, the customs
collectors, who were also the subordinates of the
Commissioner of the Bureau of Customs. As such, the
said Memorandum Orders clearly fall under one of the
exceptions to the publication requirement, namely those
dealing with instructions from an administrative superior
to a subordinate regarding the performance of their
duties, a circumstance which does not obtain in the case
at bench.
Xxx
To summarize, petitioner should be absolved from the
three (3) counts of exaction as POEA Administrative
Circular No. 2, Series of 1983 could not be the basis of
administrative sanctions against petitioner for lack of
publication. (Philsa International Placement and
Services Corporation v. Secretary of Labor and
Employment, 356 SCRA 174, April 4, 2001, 3rd
Div., [Gonzaga-Reyes])
255. May a successful bidder compel a government
agency to formalize a contract with it notwithstanding
that its bid exceeds the amount appropriated by
Congress for the project?
Held: Enshrined in the 1987 Philippine Constitution is
the mandate that “no money shall be paid out of the
Treasury except in pursuance of an appropriation made
by law.” (Sec. 29[1], Article VI of the 1987 Constitution)
Thus, in the execution of government contracts, the
precise import of this constitutional restriction is to
require the various agencies to limit their expenditures
within the appropriations made by law for each fiscal
year.
Xxx
It is quite evident from the tenor of the
language of the law that the existence of appropriations
and the availability of funds are indispensable pre-
requisites to or conditions sine qua non for the execution
of government contracts. The obvious intent is to
impose such conditions as a priori requisites to the
validity of the proposed contract (Fernandez, A Treatise
on Government Contracts Under Philippine Law, 2001,
pp. 40-41). Using this as our premise, we cannot
accede to PHOTOKINA’s contention that there is already
a perfected contract. While we held in Metropolitan
Manila Development Authority v. Jancom Environmental
Corporation (Supra) that “the effect of an unqualified
acceptance of the offer or proposal of the bidder is to
perfect a contract, upon notice of the award to the
bidder,” however, such statement would be
inconsequential in a government where the acceptance
referred to is yet to meet certain conditions. To hold
otherwise is to allow a public officer to execute a binding
contract that would obligate the government in an
amount in excess of the appropriations for the purpose
for which the contract was attempted to be made (64
Am Jur 2d Sec. 11). This is a dangerous precedent.
In the case at bar, there seems to be an
oversight of the legal requirements as early as the
bidding stage. The first step of a Bids and Awards
Committee (BAC) is to determine whether the bids
comply with the requirements. The BAC shall rate a bid
“passed” only if it complies with all the requirements and
the submitted price does not exceed the approved
budget for the contract.” (Implementing Rules and
Regulations [IRR] for Executive Order No. 262, supra.)

Extant on the record is the fact that the VRIS
Project was awarded to PHOTOKINA on account of its
bid in the amount of P6.588 Billion Pesos. However,
under Republic Act No. 8760 (General Appropriations
Act, FY 2000, p. 1018, supra.), the only fund
appropriated for the project was P1 Billion Pesos and
under the Certification of Available Funds (CAF) only
P1.2 Billion Pesos was available. Clearly, the amount
appropriated is insufficient to cover the cost of the entire
VRIS Project. There is no way that the COMELEC could
enter into a contract with PHOTOKINA whose accepted
bid was way beyond the amount appropriated by law for
the project. This being the case, the BAC should have
rejected the bid for being excessive or should have
withdrawn the Notice of Award on the ground that in the
eyes of the law, the same is null and void.
Xxx
Even the draft contract submitted by
Commissioner Sadain, that provides for a contract price
in the amount of P1.2 Billion Pesos is unacceptable. X x
x While the contract price under the draft contract is
only P1.2 Billion and, thus, within the certified available
funds, the same covers only Phase I of the VRIS Project,
i.e., the issuance of identification cards for only
1,000,000 voters in specified areas (Ibid., p. 382). In
effect, the implementation of the VRIS Project will be
“segmented” or “chopped” into several phases. Not only
is such arrangement disallowed by our budgetary laws
and practices, it is also disadvantageous to the
COMELEC because of the uncertainty that will loom over
its modernization project for an indefinite period of time.
Should Congress fail to appropriate the amount
necessary for the completion of the entire project, what
good will the accomplished Phase I serve? As expected,
the project failed “to sell” with the Department of
Budget and Management. Thus, Secretary Benjamin
Diokno, per his letter of December 1, 2000, declined the
COMELEC’s request for the issuance of the Notice of
Cash Availability (NCA) and a multi-year obligatory
authority to assume payment of the total VRIS Project
for lack of legal basis. Corollarily, under Section 33 of
R.A. No. 8760, no agency shall enter into a multi-year
contract without a multi-year obligational authority,
thus:
“SECTION 33. Contracting Multi-Year Projects. - In the
implementation of multi-year projects, no agency shall
enter into a multi-year contract without a multi-year
Obligational Authority issued by the Department of
Budget and Management for the purpose.
Notwithstanding the issuance of the multi-year
Obligational Authority, the obligation to be incurred in
any given calendar year, shall in no case exceed the
amount programmed for implementation during said
calendar year.”
Petitioners are justified in refusing to formalize the
contract with PHOTOKINA. Prudence dictated them not
to enter into a contract not backed up by sufficient
appropriation and available funds. Definitely, to act
otherwise would be a futile exercise for the contract
would inevitably suffer the vice of nullity. X x x
Xxx
Verily, the contract, as expressly declared by
law, is inexistent and void ab initio (Article 1409 of the
Civil Code of the Philippines). This is to say that the
proposed contract is without force and effect from the
very beginning or from its incipiency, as if it had never
been entered into, and hence, cannot be validated either
by lapse of time or ratification (Manila Lodge v. Court of
Appeals, 73 SCRA 162 [1976]; See also Tongoy v. Court
of Appeals, 123 SCRA 99 [1983]).
Xxx
In fine, we rule that PHOTOKINA, though the winning
bidder, cannot compel the COMELEC to formalize the
contract. Since PHOTOKINA’s bid is beyond the amount
appropriated by Congress for the VRIS Project, the
proposed contract is not binding upon the COMELEC and
is considered void x x x. (Commission on Elections
v. Judge Ma. Luisa Quijano-Padilla, G.R. No.
151992, Sept. 18, 2002, En Banc [Sandoval-
Gutierrez])
256. What is the remedy available to a party who
contracts with the government contrary to the
requirements of the law and, therefore, void ab initio?
Held: Of course, we are not saying that the party who
contracts with the government has no other recourse in
law. The law itself affords him the remedy. Section 48
of E.O. No. 292 explicitly provides that any contract
entered into contrary to the above-mentioned
requirements shall be void, and “the officers entering
into the contract shall be liable to the Government or
other contracting party for any consequent damage to
the same as if the transaction had been wholly between
private parties.” So when the contracting officer
transcends his lawful and legitimate powers by acting in
excess of or beyond the limits of his contracting
authority, the Government is not bound under the
contract. It would be as if the contract in such case
were a private one, whereupon, he binds himself, and
thus, assumes personal liability thereunder. (Fernandez,
a Treatise on Government Contracts Under Philippine
Law, 2001, supra., pp. 22-23). Otherwise stated, the
proposed contract is unenforceable as to the
Government.
While this is not the proceeding to determine
where the culpability lies, however, the constitutional
mandate cited above constrains us to remind all public
officers that public office is a public trust and all public
officers must at all times be accountable to the people.
The authority of public officers to enter into government
contracts is circumscribed with a heavy burden of
responsibility. In the exercise of their contracting
prerogative, they should be the first judges of the
legality, propriety and wisdom of the contract they
entered into. They must exercise a high degree of
caution so that the Government may not be the victim of
ill-advised or improvident action (Rivera v. Maclang, 7
SCRA 57 [1963]). (Commission on Elections v.
Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992,
Sept. 18, 2002, En Banc [Sandoval-Gutierrez])
257. Does the Commission on Human Rights have the
power to adjudicate?
Held: In its Order x x x denying petitioners’
motion to dismiss, the CHR theorizes that the intention of
the members of the Constitutional Commission is to make
CHR a quasi-judicial body. This view, however, has not
heretofore been shared by this Court. In Carino v.
Commission on Human Rights (204 SCRA 483, 492), the
Court x x x has observed that it is “only the first of the
enumerated powers and functions that bears any
resemblance to adjudication of adjudgment,” but that
resemblance can in no way be synonymous to the
adjudicatory power itself. The Court explained:
“x x x [T]he Commission on Human Rights x x x was not
meant by the fundamental law to be another court or
quasi-judicial agency in this country, or duplicate much
less take over the functions of the latter.
“The most that may be conceded to the Commission in
the way of adjudicative power is that it may investigate,
i.e., receive evidence and make findings of fact as regards
claimed human rights violations involving civil and political
rights. But fact finding is not adjudication, and cannot be
likened to the judicial function of a court of justice, or
even a quasi-judicial agency or official. The function of
receiving evidence and ascertaining therefrom the facts
of a controversy is not a judicial function, properly
speaking. To be considered such, the faculty of receiving
evidence and making factual conclusions in a controversy
must be accompanied by the authority of applying the law
to those factual conclusions to the end that the
controversy may be decided or determined
authoritatively, finally and definitively, subject to such
appeals or modes of review as may be provided by law.
This function, to repeat, the Commission does not have.
(Simon, Jr. v. Commission on Human Rights, 229
SCRA 117, 125, Jan. 5, 1994, En Banc [Vitug, J.])
258. Does the Commission on Human Rights have
jurisdiction to issue TRO or writ of preliminary injunction?
Held: In Export Processing Zone Authority v.
Commission on Human rights (208 SCRA 125, 131), the
Court x x x explained:
“The constitutional provision directing the CHR to ‘provide
for preventive measures and legal aid services to the
underprivileged whose human rights have been violated
or need protection’ may not be construed to confer
jurisdiction on the Commission to issue a restraining order
or writ of injunction for, if that were the intention, the
Constitution would have expressly said so. ‘Jurisdiction is
conferred only by the Constitution or by law.’ It is never
derived by implication.”
“Evidently, the ‘preventive measures and legal aid
services’ mentioned in the Constitution refer to
extrajudicial and judicial remedies (including a writ of
preliminary injunction) which the CHR may seek from the
proper courts on behalf of the victims of human rights
violations. Not being a court of justice, the CHR itself
has no jurisdiction to issue the writ, for a writ of
preliminary injunction may only be issued ‘by the judge of
any court in which the action is pending [within his
district], or by a Justice of the Court of Appeals, or of the
Supreme Court. x x x. A writ of preliminary injunction is
an ancillary remedy. It is available only in a pending
principal action, for the preservation or protection of the
rights and interest of a party thereto, and for no other
purpose.”
The Commission does have legal standing to indorse, for
appropriate action, its findings and recommendations to
any appropriate agency of government (See Export
Processing Zone Authority v. Commission on Human
Rights, 208 SCRA 125). (Simon, Jr. v. Commission on
Human Rights, 229 SCRA 117, 134-135, Jan. 5,
1994, En Banc [Vitug, J.])
259. Discuss the contempt power of the Commission
on Human Rights (CHR). When may it be validly
exercised?
Held: On its contempt powers, the CHR is
constitutionally authorized to “adopt its operational
guidelines and rules of procedure, and cite for contempt
for violations thereof in accordance with the Rules of
Court.” Accordingly, the CHR acted within its authority in
providing in its revised rules, its power “to cite or hold any
person in direct or indirect contempt, and to impose the
appropriate penalties in accordance with the procedure
and sanctions provided for in the Rules of Court.” That
power to cite for contempt, however, should be
understood to apply only to violations of its adopted
operational guidelines and rules of procedure essential to
carry out its investigatorial powers. To exemplify, the
power to cite for contempt could be exercised against
persons who refuse to cooperate with the said body, or
who unduly withhold relevant information, or who decline
to honor summons, and the like, in pursuing its
investigative work. The “order to desist” (a semantic
interplay for a restraining order) in the instance before us,
however, is not investigatorial in character but prescinds
from an adjudicative power that it does not possess. x x
x (Simon, Jr. v. Commission on Human Rights, 229
SCRA 117, 134, Jan. 5, 1994, En Banc [Vitug, J.])
THE LAW OF PUBLIC OFFICERS
260. How are positions in the Civil Service classified?
Discuss the characteristics of each.
Ans.: Positions in the Civil Service may be
classified into: 1) Career Positions, and 2) Non-Career
Positions.
Career Positions are characterized by (1) entrance based
on merit and fitness to be determined as far as
practicable by competitive examination, or based on
highly technical qualifications; (2) opportunity for
advancement to higher career positions; and (3) security
of tenure (Sec. 7, Chap. 2, Subtitle A, Title I, Bk. V,
E.O. No. 292).
The Non-Career Service shall be characterized by (1)
entrance on bases other than of the usual tests of merit
or fitness utilized for the career service; and (2) tenure
which is limited to a period specified by law, or which is
coterminous with that of the appointing authority or
subject to his pleasure, or which is limited to the
duration of a particular project for which purpose
employment was made (Sec. 9, Chap. 2, Subtitle A,
Title I, Bk. V, E.O. No. 292).
261. Define Appointment. Discuss its nature.
Held: An “appointment” to a public office is the
unequivocal act of designating or selecting by one having
the authority therefor of an individual to discharge and
perform the duties and functions of an office or trust. The
appointment is deemed complete once the last act
required of the appointing authority has been complied
with and its acceptance thereafter by the appointee in
order to render it effective. Appointment necessarily calls
for an exercise of discretion on the part of the appointing
authority. In Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court (140 SCRA 22), reiterated in
Flores v. Drilon (223 SCRA 568), this Court has held:
“The power to appoint is, in essence, discretionary. The
appointing power has the right of choice which he may
exercise freely according to his judgment, deciding for
himself who is best qualified among those who have the
necessary qualifications and eligibilities. It is a
prerogative of the appointing power x x x.” (At p. 579)
Indeed, it may rightly be said that the right of choice is
the heart of the power to appoint. In the exercise of the
power of appointment, discretion is an integral thereof.
(Bermudez v. Torres, 311 SCRA 733, Aug. 4, 1999,
3rd Div. [Vitug])
262. May the Civil Service Commission, or the
Supreme Court, validly nullify an appointment on the
ground that somebody else is better qualified?
Held: The head of an agency who is the appointing
power is the one most knowledgeable to decide who can
best perform the functions of the office. Appointment is
an essentially discretionary power and must be performed
by the officer vested with such power according to his
best lights, the only condition being that the appointee
should possess the qualifications required by law. If he
does, then the appointment cannot be faulted on the
ground that there are others better qualified who should
have been preferred. Indeed, this is a prerogative of the
appointing authority which he alone can decide. The
choice of an appointee from among those who possess
the required qualifications is a political and administrative
decision calling for considerations of wisdom,
convenience, utility and the interests of the service which
can best be made by the head of the office concerned,
the person most familiar with the organizational structure
and environmental circumstances within which the
appointee must function.
As long as the appointee is qualified the Civil Service
Commission has no choice but to attest to and respect the
appointment even if it be proved that there are others
with superior credentials. The law limits the Commission’s
authority only to whether or not the appointees possess
the legal qualifications and the appropriate civil service
eligibility, nothing else. If they do then the appointments
are approved because the Commission cannot exceed its
power by substituting its will for that of the appointing
authority. Neither can we. (Rimonte v. CSC, 244
SCRA 504-505, May 29, 1995, En Banc [Bellosillo,
J.])
263. Does the “next-in-rank” rule import any
mandatory or peremptory requirement that the person
next-in-rank must be appointed to the vacancy?
Held: The “next-in-rank rule is not absolute; it only
applies in cases of promotion, a process which denotes a
scalar ascent of an officer to another position higher
either in rank or salary. And even in promotions, it can
be disregarded for sound reasons made known to the
next-in-rank, as the concept does not import any
mandatory or peremptory requirement that the person
next-in-rank must be appointed to the vacancy. The
appointing authority, under the Civil Service Law, is
allowed to fill vacancies by promotion, transfer of present
employees, reinstatement, reemployment, and
appointment of outsiders who have appropriate civil
service eligibility, not necessarily in that order. There is
no legal fiat that a vacancy must be filled only by
promotion; the appointing authority is given wide
discretion to fill a vacancy from among the several
alternatives provided by law.
What the Civil Service Law provides is that if a vacancy is
filled by promotion, the person holding the position next
in rank thereto “shall be considered for promotion.”
In Taduran v. Civil Service Commission (131 SCRA 66
[1984]), the Court construed that phrase to mean that the
person next-in-rank “would be among the first to be
considered for the vacancy, if qualified.” In Santiago, Jr.
v. Civil Service Commission (178 SCRA 733 [1989]), the
Court elaborated the import of the rule in the following
manner:
“One who is next-in-rank is entitled to preferential
consideration for promotion to the higher vacancy but it
does not necessarily follow that he and no one else can
be appointed. The rule neither grants a vested right to
the holder nor imposes a ministerial duty on the
appointing authority to promote such person to the next
higher position x x x”
(Abila v. CSC, 198 SCRA 102, June 3, 1991, En Banc
[Feliciano])
263. Can a person who lacks the necessary
qualifications for a public position be appointed to it in a
permanent capacity? Illustrative case.
Held: At the outset, it must be stressed that
the position of Ministry Legal Counsel-CESO IV is
embraced in the Career Executive Service. X x x
In the case at bar, there is no question that
private respondent does not have the required CES
eligibility. As admitted by private respondent in his
Comment, he is “not a CESO or a member of the Career
Executive Service.”
In the case of Achacoso v. Macaraig, et al. (195
SCRA 235, 239-240 [1991]), the Court held:
It is settled that a permanent appointment can be issued
only “to a person who meets all the requirements for the
position to which he s being appointed, including the
appropriate eligibility prescribed.” Achacoso did not. At
best, therefore, his appointment could be regarded only
as temporary. And being so, it could be withdrawn at
will by the appointing authority and “at a moment’s
notice,” conformably to established jurisprudence.
The Court, having considered these submissions and the
additional arguments of the parties in the petitioner’s
Reply and of the Solicitor-General’s Rejoinder, must find
for the respondents.
The mere fact that a position belongs to the Career
Service does not automatically confer security of tenure
in its occupant even if he does not possess the required
qualifications. Such right will have to depend on the
nature of his appointment, which in turn depends on his
eligibility or lack of it. A person who does not have the
requisite qualifications for the position cannot be
appointed to it in the first place or, only as an exception
to the rule, may be appointed to it merely in an acting
capacity in the absence of appropriate eligibles. The
appointment extended to him cannot be regarded as
permanent even if it may be so designated.
Evidently, private respondent’s appointment did
not attain permanency. Not having taken the necessary
Career Executive Service examination to obtain the
requisite eligibility, he did not at the time of his
appointment and up to the present, possess the needed
eligibility for a position in the Career Executive Service.
Consequently, his appointment as Ministry Legal
Counsel-CESO IV/Department Legal Counsel and/or
Director III, was merely temporary. Such being the
case, he could be transferred or reassigned without
violating the constitutionally guaranteed right to security
of tenure.
Private respondent capitalizes on his lack of CES
eligibility by adamantly contending that the mobility and
flexibility concepts in the assignment of personnels
under the Career Executive Service do not apply to him
because he s not a Career Executive Service Officer.
Obviously, the contention is without merit. As correctly
pointed out by the Solicitor General, non-eligibles
holding permanent appointments to CES positions were
never meant to remain immobile in their status.
Otherwise, their lack of eligibility would be a premium
vesting them with permanency in the CES positions, a
privilege even their eligible counterparts do not enjoy.
Then too, the cases on unconsented transfer
invoked by private respondent find no application in the
present case. To reiterate, private respondent’s
appointment is merely temporary; hence, he could be
transferred or reassigned to other positions without
violating his right to security of tenure. (De Leon v.
Court of Appeals, 350 SCRA 1, Jan. 22, 2001, En
Banc [Ynares-Santiago])
264. In the career executive service, is a career
executive service (CES) eligibility all that an employee
needs to acquire security of tenure? Is appointment to
a CES rank necessary for the acquisition of such security
of tenure?
Held: The petitions are impressed with merit.
In the career executive service, the acquisition
of security of tenure which presupposes a permanent
appointment is governed by the rules and regulations
promulgated by the CES Board x x x.
As clearly set forth in the foregoing provisions, two
requisites must concur in order that an employee in the
career executive service may attain security of tenure, to
wit:
a) CES eligibility; and
b) Appointment to the appropriate CES rank.
In addition, it must be stressed that the security of
tenure of employees in the career executive service
(except first and second level employees in the civil
service), pertains only to rank and not to the office or to
the position to which they may be appointed. Thus, a
career executive service officer may be transferred or
reassigned from one position to another without losing
his rank which follows him wherever he is transferred or
reassigned. In fact, a CESO suffers no diminution of
salary even if assigned to a CES position with lower
salary grade, as he is compensated according to his CES
rank and not on the basis of the position or office he
occupies.
In the case at bar, there is no question that respondent
Ramon S. Roco, though a CES eligible, does not possess
the appropriate CES rank, which is – CES rank level V,
for the position of Regional Director of the LTO (Region
V). Falling short of one of the qualifications that would
complete his membership in the CES, respondent cannot
successfully interpose violation of security of tenure.
Accordingly, he could be validly reassigned to other
positions in the career executive service. X x x
Moreover, under the mobility and flexibility principles of
the Integrated Reorganization Plan, CES personnel may
be reassigned or transferred from one position to
another x x x.
One last point. Respondent capitalizes on the fact that
petitioner Luis Mario M. General is not a CES eligible.
The absence, however, of such CES eligibility is of no
moment. As stated in Part III, Chapter I, Article IV,
paragraph 5(c), of the Integrated Reorganization Plan –
“x x x the President may, in exceptional cases, appoint
any person who is not a Career Executive Service
eligible; provided that such appointee shall subsequently
take the required Career Executive Service examination
and that he shall not be promoted to a higher class until
he qualified in such examination.”
Evidently, the law allows appointment of those who are
not CES eligible, subject to the obtention of said eligibility,
in the same manner that the appointment of respondent
who does not possess the required CES rank (CES rank
level V) for the position of Regional Director of the LTO,
is permitted in a temporary capacity. (General v. Roco,
350 SCRA 528, Jan. 29, 2001, 1st Div. [Ynares-
Santiago])
265. May an elective public official be validly
appointed or designated to any public office or position
during his tenure?
Ans.: No elective official shall be eligible for
appointment or designation in any capacity to any public
office or position during his tenure. (Sec. 7, 1st par.,
Art. IX-B, 1987 Constitution)
266. May an appointive public official hold any other
office or employment?
Ans.: Unless otherwise allowed by law or by the
primary functions of his position, no appointive official
shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality
thereof, including government-owned or controlled
corporation. (Sec. 7, 2nd par., Art. IX-B, 1987
Constitution)
267. May the President, Vice-President, Members of
the Cabinet, their deputies or assistants hold any other
office or employment?
Ans.: The President, Vice-President, the
Members of the Cabinet, and their deputies or assistants
shall not, unless otherwise provided in this Constitution,
hold any other office or employment during their tenure.
(Sec. 13, Art. VII, 1987 Constitution)
268. Does the prohibition in Section 13, Article VII of
the 1987 Constitution insofar as Cabinet members, their
deputies or assistants are concerned admit of the broad
exceptions made for appointive officials in general under
Section 7, par. (2), Article IX-B?
Held: The threshold question therefore is: does
the prohibition in Section 13, Article VII of the 1987
Constitution insofar as Cabinet members, their deputies
or assistants are concerned admit of the broad exceptions
made for appointive officials in general under Section 7,
par. (2), Article IX-B which, for easy reference is quoted
anew, thus: “Unless otherwise allowed by law or by the
primary functions of his position, no appointive official
shall hold any other office or employment in the
government or any subdivision, agency or instrumentality
thereof, including government-owned or controlled
corporation or their subsidiaries.”
We rule in the negative.
Xxx
The practice of designating members of the
Cabinet, their deputies and assistants as members of the
governing bodies or boards of various government
agencies and instrumentalities, including government-
owned and controlled corporations, became prevalent
during the time legislative powers in this country were
exercised by former President Ferdinand E. Marcos
pursuant to his martial law authority. There was a
proliferation of newly-created agencies, instrumentalities
and government-owned and controlled corporations
created by presidential decrees and other modes of
presidential issuances where Cabinet members, their
deputies or assistants were designated to head or sit as
members of the board with the corresponding salaries,
emoluments, per diems, allowances and other perquisites
of office. X x x
This practice of holding multiple offices or
positions in the government soon led to abuses by
unscrupulous public officials who took advantage of this
scheme for purposes of self-enrichment. X x x
Particularly odious and revolting to the people’s
sense of propriety and morality in government service
were the data contained therein that Roberto v. Ongpin
was a member of the governing boards of twenty-nine
(29) governmental agencies, instrumentalities and
corporations; Imelda R. Marcos of twenty-three (23);
Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr.
of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco,
of fourteen each (14); Cesar C. Zalamea of thirteen (13);
Ruben B. Ancheta and Jose A. Rono of twelve (12) each;
Manuel P. Alba, Gilberto O. Teodoro, and Edgardo
Tordesillas of eleven (11) each; and Lilia Bautista and
Teodoro Q. Pena of ten (10) each.
The blatant betrayal of public trust evolved into
one of the serious causes of discontent with the Marcos
regime. It was therefore quite inevitable and in
consonance with the overwhelming sentiment of the
people that the 1986 Constitutional Commission,
convened as it was after the people successfully unseated
former President Marcos, should draft into its proposed
Constitution the provisions under consideration which are
envisioned to remedy, if not correct, the evils that flow
from the holding of multiple governmental offices and
employment. X x x
But what is indeed significant is the fact that
although Section 7, Article IX-B already contains a blanket
prohibition against the holding of multiple offices or
employment in the government subsuming both elective
and appointive public officials, the Constitutional
Commission should see it fit to formulate another
provision, Sec. 13, Article VII, specifically prohibiting the
President, Vice-President, members of the Cabinet, their
deputies and assistants from holding any other office or
employment during their tenure, unless otherwise
provided in the Constitution itself.
Evidently, from this move as well as in the
different phraseologies of the constitutional provisions in
question, the intent of the framers of the Constitution was
to impose a stricter prohibition on the President and his
official family in so far as holding other offices or
employment in the government or elsewhere is
concerned.
Moreover, such intent is underscored by a
comparison of Section 13, Article VII with other provisions
of the Constitution on the disqualifications of certain
public officials or employees from holding other offices or
employment. Under Section 13, Article VI, “[N]o Senator
or Member of the House of Representatives may hold any
other office or employment in the Government x x x.”
Under section 5(4), Article XVI, “[N]o member of the
armed forces in the active service shall, at any time, be
appointed in any capacity to a civilian position in the
Government, including government-owned or controlled
corporations or any of their subsidiaries.” Even Section
7(2), Article IX-B, relied upon by respondents provides
“[U]nless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold
any other office or employment in the Government.”
It is quite notable that in all these provisions on
disqualifications to hold other office or employment, the
prohibition pertains to an office or employment in the
government and government-owned or controlled
corporations or their subsidiaries. In striking contrast is
the wording of Section 13, Article VII which states that
“[T]he President, Vice-President, the Members of the
Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other
office or employment during their tenure.” In the latter
provision, the disqualification is absolute, not being
qualified by the phrase “in the Government.” The
prohibition imposed on the President and his official
family is therefore all-embracing and covers both public
and private office or employment.
Going further into Section 13, Article VII, the
second sentence provides: “They shall not, during said
tenure, directly or indirectly, practice any other
profession, participate in any business, or be financially
interested in any contract with, or in any franchise, or
special privilege granted by the Government or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries.” These sweeping, all-embracing prohibitions
imposed on the President and his official family, which
prohibitions are not similarly imposed on other public
officials or employees such as the Members of Congress,
members of the civil service in general and members of
the armed forces, are proof of the intent of the 1987
Constitution to treat the President and his official family
as a class by itself and to impose upon said class stricter
prohibitions.
Xxx
 Thus, while all other appointive officials in the
civil service are allowed to hold other office or
employment in the government during their tenure when
such is allowed by law or by the primary functions of their
positions, members of the Cabinet, their deputies and
assistants may do so only when expressly authorized by
the Constitution itself. In other words, Section 7, Article
IX-B is meant to lay down the general rule applicable to
all elective and appointive public officials and employees,
while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice-President,
Members of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase “unless
otherwise provided in this Constitution” in Section 13,
Article VII cannot possibly refer to the broad exceptions
provided under Section 7, Article IX-B of the 1987
Constitution. To construe said qualifying phrase as
respondents would have us to do, would render nugatory
and meaningless the manifest intent and purpose of the
framers of the Constitution to impose a stricter prohibition
on the President, Vice-President, Members of the Cabinet,
their deputies and assistants with respect to holding other
offices or employment in the government during their
tenure. Respondents’ interpretation that Section 13 of
Article VII admits of the exceptions found in Section 7,
par. (2) of Article IX-B would obliterate the distinction so
carefully set by the framers of the Constitution as to when
the high-ranking officials of the Executive Branch from the
President to assistant Secretary, on the one hand, and the
generality of civil servants from the rank immediately
below Assistant Secretary downwards, on the other, may
hold any other office or position in the government during
their tenure.
Moreover, respondents’ reading of the provisions
in question would render certain parts of the Constitution
inoperative. This observation applies particularly to the
Vice-President who, under Section 13 of Article VII is
allowed to hold other office or employment when so
authorized by the Constitution, but who as an elective
public official under Sec. 7, par. (1) of Article IX-B is
absolutely ineligible “for appointment or designation in
any capacity to any public office or position during his
tenure.” Surely, to say that the phrase “unless otherwise
provided in this Constitution” found in Section 13, Article
VII has reference to Section 7, par. (1) of Article IX-B
would render meaningless the specific provisions of the
Constitution authorizing the Vice-President to become a
member of the Cabinet (Sec. 3, Ibid.), and to act as
President without relinquishing the Vice-Presidency where
the President shall not have been chosen or fails to qualify
(Sec. 7, Article VII). Such absurd consequence can be
avoided only by interpreting the two provisions under
consideration as one, i.e., Section 7, par. (1) of Article IX-
B providing the general rule and the other, i.e., Section
13, Article VII as constituting the exception thereto. In
the same manner must Section 7, par. (2) of Article IX-B
be construed vis-à-vis Section 13, Article VII.
Xxx
Since the evident purpose of the framers of the
1987 Constitution is to impose a stricter prohibition on the
President, Vice-President, members of the Cabinet, their
deputies and assistants with respect to holding multiple
offices or employment in the government during their
tenure, the exception to this prohibition must be read with
equal severity. On its face, the language of Section 13,
Article VII is prohibitory so that it must be understood as
intended to be a positive and unequivocal negation of the
privilege of holding multiple government offices and
employment. Verily, wherever the language used in the
constitution is prohibitory, it is to be understood as
intended to be a positive and unequivocal negation
(Varney v. Justice, 86 Ky 596; 6 S.W. 457; Hunt v. State,
22 Tex. App. 396, 3 S.W. 233). The phrase “unless
otherwise provided in this Constitution” must be given a
literal interpretation to refer only to those particular
instances cited in the Constitution itself, to wit: the Vice-
President being appointed as a member of the Cabinet
under Section 3, par. (2), Article VII; or acting as
President in those instances provided under Section 7,
pars. (2) and (3), Article VII; and, the Secretary of Justice
being ex-officio member of the Judicial and Bar Council
by virtue of Section 8 (1), Article VIII.
Xxx
It being clear x x x that the 1987 Constitution
seeks to prohibit the President, Vice-President, members
of the Cabinet, their deputies or assistants from holding
during their tenure multiple offices or employment in the
government, except in those cases specified in the
Constitution itself and as above clarified with respect to
posts held without additional compensation in an ex-
officio capacity as provided by law and as required by the
primary functions of their office, the citation of Cabinet
members (then called Ministers) as examples during the
debate and deliberation on the general rule laid down for
all appointive officials should be considered as mere
personal opinions which cannot override the constitution’s
manifest intent and the people’s understanding thereof.
In the light of the construction given to Section
13, Article VII in relation to Section 7, par. (2), Article IX-
B of the 1987 Constitution, Executive Order No. 284 dated
July 23, 1987 is unconstitutional. Ostensibly restricting
the number of positions that Cabinet members,
undersecretaries or assistant secretaries may hold in
addition to their primary position to not more than two
(2) positions in the government and government
corporations, Executive Order No. 284 actually allows
them to hold multiple offices or employment in direct
contravention of the express mandate of Section 13,
Article VII of the 1987 Constitution prohibiting them from
doing so, unless otherwise provided in the 1987
Constitution itself.

The Court is alerted by respondents to the
impractical consequences that will result from a strict
application of the prohibition mandated under Section 13,
Article VII on the operations of the Government,
considering that Cabinet members would be stripped of
their offices held in an ex-officio capacity, by reason of
their primary positions or by virtue of legislation. As
earlier clarified in this decision, ex-officio posts held by
the executive official concerned without additional
compensation as provided by law and as required by the
primary functions of his office do not fall under the
definition of “any other office” within the contemplation
of the constitutional prohibition. With respect to other
offices or employment held by virtue of legislation,
including chairmanships or directorships in government-
owned or controlled corporations and their subsidiaries,
suffice it to say that the feared impractical consequences
are more apparent than real. Being head of an executive
department is no mean job. It is more than a full-time
job, requiring full attention, specialized knowledge, skills
and expertise. If maximum benefits are to be derived
from a department head’s ability and expertise, he should
be allowed to attend to his duties and responsibilities
without the distraction of other governmental offices or
employment. He should be precluded from dissipating his
efforts, attention and energy among too many positions
and responsibility, which may result in haphazardness and
inefficiency. Surely the advantages to be derived from
this concentration of attention, knowledge and expertise,
particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may
be gained from a department head spreading himself too
thin and taking in more than what he can handle.
Finding Executive Order No. 284 to be
constitutionally infirm, the Court hereby orders
respondents x x x to immediately relinquish their other
offices or employment, as herein defined, in the
government, including government-owned or controlled
corporations and their subsidiaries. (Civil Liberties
Union v. Executive Secretary, 194 SCRA 317, Feb.
22, 1991, En Banc [Fernan, CJ])
269. Does the prohibition against holding dual or
multiple offices or employment under Section 13, Article
VII of the Constitution apply to posts occupied by the
Executive officials specified therein without additional
compensation in an ex-officio capacity as provided by law
and as required by the primary functions of said officials’
office?
Held: The prohibition against holding dual or
multiple offices or employment under Section 13, Article
VII of the Constitution must not, however, be construed
as applying to posts occupied by the Executive officials
specified therein without additional compensation in an
ex-officio capacity as provided by law and as required (As
opposed to the term “allowed” used in Section 7, par. (2),
Article IX-B of the Constitution, which is permissive.
“Required” suggests an imposition, and therefore,
obligatory in nature) by the primary functions of said
officials’ office. The reason is that these posts do not
comprise “any other office” within the contemplation of
the constitutional prohibition but are properly an
imposition of additional duties and functions on said
officials (Martin v. Smith, 140 A.L.R. 1073; Ashmore v.
Greater Greenville Sewer District, 173 A.L.R. 407). To
characterize these posts otherwise would lead to absurd
consequences, among which are: The President of the
Philippines cannot chair the National Security Council
reorganized under Executive Order No. 115 (December
24, 1986). Neither can the Vice-President, the Executive
Secretary, and the Secretaries of National Defense,
Justice, Labor and Employment and Local Government sit
in this Council, which would then have no reason to exist
for lack of a chairperson and members. The respective
undersecretaries and assistant secretaries, would also be
prohibited.
Xxx
Indeed, the framers of our Constitution could not
have intended such absurd consequences. A
Constitution, viewed as a continuously operative charter
of government, is not to be interpreted as demanding the
impossible or the impracticable; and unreasonable or
absurd consequences, if possible, should be avoided
(Hirabayashi v. United States, 320 U.S. 81, 87 L. Ed. 1774,
63 S. Ct. 1375; others omitted).
To reiterate, the prohibition under Section 13,
Article VII is not to be interpreted as covering positions
held without additional compensation in ex-officio
capacities as provided by law and as required by the
primary functions of the concerned official’s office. The
term ex-officio means “from office; by virtue of office.” It
refers to an “authority derived from official character
merely, not expressly conferred upon the individual
character, but rather annexed to the official position.” Ex
officio likewise denotes an “act done in an official
character, or as a consequence of office, and without any
other appointment or authority than that conferred by the
office.” (Black’s Law Dictionary, p. 516; 15A Words and
Phrases, p. 392) An ex-officio member of a board is one
who is a member by virtue of his title to a certain office,
and without further warrant or appointment (15A Words
and Phrases, p. 392). To illustrate, by express provision
of law, the Secretary of Transportation and
Communications is the ex-officio Chairman of the Board
of the Philippine Ports Authority (Sec. 7, E.O. 778), and
the Light Rail Transit Authority (Sec. 1, E.O. 210).
The Court had occasion to explain the meaning of
an ex-officio position in Rafael v. Embroidery and Apparel
Control and Inspection Board (21 SCRA 336 [1967]),
thus: “An examination of Section 2 of the questioned
statute (R.A. 3137) reveals that for the chairman and
members of the Board to qualify they need only be
designated by the respective department heads. With the
exception of the representative from the private sector,
they sit ex-officio. I order to be designated they must
already be holding positions in the offices mentioned in
the law. Thus, for instance, one who does not hold a
previous appointment in the Bureau of Customs, cannot,
under the act, be designated a representative from that
office. The same is true with respect to the
representatives from the other offices. No new
appointments are necessary. This is as it should be,
because the representatives so designated merely
perform duties in the Board in addition to those already
performed under their original appointments.” (Italics
supplied)
The term “primary” used to describe “functions”
refers to the order of importance and thus means chief or
principal function. The term is not restricted to the
singular but may refer to the plural (33A Words and
Phrases, p. 210, citing Collector of Revenue v. Louisiana
Ready Mix Co., La. App., 197 S. 2d 141, 145). The
additional duties must not only be closely related to, but
must be required by the official’s primary functions.
Examples of designations to positions by virtue of one’s
primary functions are the Secretaries of Finance and
Budget sitting as members of the Monetary Board, and
the Secretary of Transportation and Communications
acting as Chairman of the Maritime Industry Authority
(Sec. 7, P.D. No. 474) and the Civil Aeronautics Board.
If the functions to be performed are merely
incidental, remotely related, inconsistent, incompatible, or
otherwise alien to the primary function of a cabinet
official, such additional functions would fall under the
purview of “any other office” prohibited by the
Constitution. An example would be the Press
Undersecretary sitting as a member of the Board of the
Philippine Amusement and Gaming Corporation. The
same rule applies to such positions which confer on the
cabinet official management functions and/or monetary
compensation, such as but not limited to chairmanships
or directorships in government-owned or controlled
corporations and their subsidiaries.
Mandating additional duties and functions to the
President, Vice-President, Cabinet Members, their
deputies or assistants which are not inconsistent with
those already prescribed by their offices or appointments
by virtue of their special knowledge, expertise and skill in
their respective executive offices is a practice long-
recognized in many jurisdictions. It is a practice justified
by the demands of efficiency, policy direction, continuity
and coordination among the different offices in the
Executive Branch in the discharge of its multifarious tasks
of executing and implementing laws affecting national
interest and general welfare and delivering basic services
to the people. It is consistent with the power vested on
the President and his alter egos, the Cabinet members, to
have control of all the executive departments, bureaus
and offices and to ensure that the laws are faithfully
executed (Section 17, Article VII). Without these
additional duties and functions being assigned to the
President and his official family to sit in the governing
bodies or boards of governmental agencies or
instrumentalities in an ex-officio capacity as provided by
law and as required by their primary functions, they would
be deprived of the means for control and supervision,
thereby resulting in an unwieldy and confused
bureaucracy.
It bears repeating though that in order that such
additional duties or functions may not transgress the
prohibition embodied in Section 13, Article VII of the 1987
Constitution, such additional duties or functions must be
required by the primary functions of the official
concerned, who is to perform the same in an ex-officio
capacity as provided by law, without receiving any
additional compensation therefor.
The ex-officio position being actually and in legal
contemplation part of the principal office, it follows that
the official concerned has no right to receive additional
compensation for his services in the said position. The
reason is that these services are already paid for and
covered by the compensation attached to his principal
office. It should be obvious that if, say, the Secretary of
Finance attends a meeting of the Monetary Board as an
ex-officio member thereof, he is actually and in legal
contemplation performing the primary function of his
principal office in defining policy in monetary and banking
matters, which come under the jurisdiction of his
department. For such attendance, therefore, he is not
entitled to collect any extra compensation, whether it be
in the form of a per diem or an honorarium or an
allowance, or some other such euphemism. By whatever
name it is designated, such additional compensation is
prohibited by the Constitution. (Civil Liberties Union v.
Executive Secretary, 194 SCRA 317, Feb. 22, 1991,
En Banc [Fernan, CJ])
270. Should members of the Cabinet appointed to
other positions in the government pursuant to Executive
Order No. 284 which later was declared unconstitutional
by the SC for being violative of Section 13, Article VII of
the Constitution be made to reimburse the government
for whatever pay and emoluments they received from
holding such other positions?
Held: During their tenure in the questioned
positions, respondents may be considered de facto
officers and as such entitled to emoluments for actual
services rendered (Castillo v.
Arrieta, G.R. No. L-31444,
November 13, 1974, 61 SCRA 55). It has been held that
“in cases where there is no de jure officer, a de facto
officer, who, in good faith has had possession of the office
and has discharged the duties pertaining thereto, is
legally entitled to the emoluments of the office, and may
in an appropriate action recover the salary, fees and other
compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it
seems unjust that the public should benefit by the
services of an officer de facto and then be freed from all
liability to pay any one for such services (Patterson v.
Benson, 112 Pac. 801, 32 L.R.A. [NS] 949). Any per diem,
allowances or other emoluments received by the
respondents by virtue of actual services rendered in the
questioned positions may therefore be retained by them.
(Civil Liberties Union v. Executive Secretary, 194
SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ])
271. May a Senator or Congressman hold any other
office or employment?
Ans.: No Senator or Member of the House of
Representatives may hold any other office or
employment in the government, or any subdivision,
agency, or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries, during his term without forfeiting his seat.
Neither shall he be appointed to any office which may
have been created or the emoluments thereof increased
during the term for which he was elected (Sec. 13, Art.
VI, 1987 Constitution). The first sentence is referred to
as an incompatible office; the second is a forbidden
office.
272. Petitioner claims that Benipayo has no authority
to remove her as Director IV of the EID and reassign her
to the Law Department. Petitioner further argues that
only the COMELEC, acting as a collegial body, can
authorize such reappointment. Moreover, petitioner
maintains that a reassignment without her consent
amounts to removal from office without due process and
therefore illegal.
Held: Petitioner’s posturing will hold water if
Benipayo does not possess any color of title to the office
of Chairman of the COMELEC. We have ruled, however,
that Benipayo is the de jure COMELEC Chairman, and
consequently he has full authority to exercise all the
powers of that office for so long as his ad interim
appointment remains effective. X x x. The Chairman,
as the Chief Executive of the COMELEC, is expressly
empowered on his own authority to transfer or reassign
COMELEC personnel in accordance with the Civil Service
Law. In the exercise of this power, the Chairman is not
required by law to secure the approval of the COMELEC
en banc.
Petitioner’s appointment papers x x x
indisputably show that she held her Director IV position
in the EID only in an acting or temporary capacity.
Petitioner is not a Career Executive Service (CES), and
neither does she hold Career Executive Service Eligibility,
which are necessary qualifications for holding the
position of Director IV as prescribed in the Qualifications
Standards (Revised 1987) issued by the Civil Service
Commission. Obviously, petitioner does not enjoy
security of tenure as Director IV. X x x
Xxx
Having been appointed merely in a temporary or
acting capacity, and not possessed of the necessary
qualifications to hold the position of Director IV,
petitioner has no legal basis in claiming that her
reassignment was contrary to the Civil Service Law. X x
x
Still, petitioner assails her reassignment, carried out
during the election period, as a prohibited act under
Section 261 (h) of the Omnibus Election Code x x x.
Xxx
Petitioner claims that Benipayo failed to secure the
approval of the COMELEC en banc to effect transfers or
reassignments of COMELEC personnel during the
election period. Moreover, petitioner insists that the
COMELEC en banc must concur to every transfer or
reassignment of COMELEC personnel during the election
period.
Contrary to petitioner’s allegation, the COMELEC did in
fact issue COMELEC Resolution No. 3300 dated
November 6, 2000, exempting the COMELEC from
Section 261 (h) of the Omnibus Election Code. X x x
Xxx
The proviso in COMELEC Resolution No. 3300, requiring
due notice and hearing before any transfer or
reassignment can be made within thirty days prior to
election day, refers only to COMELEC field personnel and
not to head office personnel like the petitioner. Under
the Revised Administrative Code (see Section 7 [4],
Chapter 2, Subtitle C, Book V of the Revised
Administrative Code), the COMELEC Chairman is the sole
officer specifically vested with the power to transfer or
reassign COMELEC personnel. The COMELEC Chairman
will logically exercise the authority to transfer or
reassign COMELEC personnel pursuant to COMELEC
Resolution No. 3300. The COMELEC en banc cannot
arrogate unto itself this power because that will mean
amending the Revised Administrative Code, an act the
COMELEC en banc cannot legally do.
COMELEC Resolution No. 3300 does not require that
every transfer or reassignment of COMELEC personnel
should carry the concurrence of the COMELEC as a
collegial body. Interpreting Resolution No. 3300 to
require such concurrence will render the resolution
meaningless since the COMELEC en banc will have to
approve every personnel transfer or reassignment,
making the resolution utterly useless. Resolution No.
3300 should be interpreted for what it is, an approval to
effect transfers and reassignments of personnel, without
need of securing a second approval from the COMELEC
en banc to actually implement such transfer or
reassignment.
The COMELEC Chairman is the official expressly
authorized by law to transfer or reassign COMELEC
personnel. The person holding that office, in a de jure
capacity, is Benipayo. The COMELEC en banc, in
COMELEC Resolution No. 3300, approved the transfer or
reassignment of COMELEC personnel during the election
period. Thus, Benipayo’s order reassigning petitioner
from the EID to the Law Department does not violate
Section 261 (h) of the Omnibus Election Code. For the
same reason, Benipayo’s order designating Cinco
Officer-in-Charge of the EID is legally unassailable.
(Matibag v. Benipayo, 380 SCRA 49, April 2, 2002,
En Banc [Carpio])
273. May the appointment of a person assuming a
position in the civil service under a completed
appointment be validly recalled or revoked?
Held: It has been held that upon the issuance of an
appointment and the appointee’s assumption of the
position in the civil service, “he acquires a legal right
which cannot be taken away either by revocation of the
appointment or by removal except for cause and with
previous notice and hearing.” (Mauna v. Civil Service
Commission, 232 SCRA 388, 398 [1994]) Moreover, it is
well-settled that the person assuming a position in the
civil service under a completed appointment acquires a
legal, not just an equitable, right to the position. This
right is protected not only by statute, but by the
Constitution as well, which right cannot be taken away by
either revocation of the appointment, or by removal,
unless there is valid cause to do so, provided that there is
previous notice and hearing. (Aquino v. Civil Service
Commission, 208 SCRA 240, 248 [1992])
Petitioner admits that his very first official act upon
assuming the position of town mayor was to issue Office
Order No. 95-01 which recalled the appointments of the
private respondents. There was no previous notice, much
less a hearing accorded to the latter. Clearly, it was
petitioner who acted in undue haste to remove the private
respondents without regard for the simple requirements
of due process of law. While he argues that the
appointing power has the sole authority to revoke said
appointments, there is no debate that he does not have
blanket authority to do so. Neither can he question the
CSC’s jurisdiction to affirm or revoke the recall.
Rule V, Section 9 of the Omnibus Implementing
Regulations of the Revised Administrative Code
specifically provides that “an appointment accepted by
the appointee cannot be withdrawn or revoked by the
appointing authority and shall remain in force and in
effect until disapproved by the Commission.” Thus, it is
the CSC that is authorized to recall an appointment
initially approved, but only when such appointment and
approval are proven to be in disregard of applicable
provisions of the civil service law and regulations
(Debulgado v. Civil Service Commission, 237 SCRA
184, 200 [1994]).
Moreover, Section 10 of the same rule provides:
Sec. 10. An appointment issued in accordance with
pertinent laws and rules shall take effect immediately
upon its issuance by the appointing authority, and if the
appointee has assumed the duties of the position, he shall
be entitled to receive his salary at once without awaiting
the approval of his appointment by the Commission. The
appointment shall remain effective until disapproved by
the Commission. In no case shall an appointment take
effect earlier than the date of its issuance.
Section 20 of Rule VI also provides:
Sec. 20. Notwithstanding the initial approval of an
appointment, the same may be recalled on any of the
following grounds:
(a) Non-compliance with the
procedures/criteria provided in the agency’s Merit
Promotion Plan;
(b) Failure to pass through the agency’s
Selection/Promotion Board;
(c) Violation of the existing collective
agreement between management and employees relative
to promotion; or
(d) Violation of other existing civil
service law, rules and regulations.
Accordingly, the appointments of the private respondents
may only be recalled on the above-cited grounds. And
yet, the only reason advanced by the petitioner to justify
the recall was that these were “midnight appointments.”
The CSC correctly ruled, however, that the constitutional
prohibition on so-called “midnight appointments,”
specifically those made within two (2) months
immediately prior to the next presidential elections,
applies only to the President or Acting President. (De
Rama v. Court of Appeals, 353 SCRA 94, Feb. 28,
2001, En Banc [Ynares-Santiago])
274. The Philippine National Red Cross (PNRC) is a
government-owned and controlled corporation with an
original charter under R.A. No. 95, as amended. Its
charter, however, was amended to vest in it the authority
to secure loans, be exempted from payment of all duties,
taxes, fees and other charges, etc. With the amendment
of its charter, has it been “impliedly converted to a private
corporation”?
Held: The test to determine whether a corporation is
government owned or controlled, or private in nature is
simple. Is it created by its own charter for the exercise
of a public function, or by incorporation under the general
corporation law? Those with special charters are
government corporations subject to its provisions, and its
employees are under the jurisdiction of the Civil Service
Commission. The PNRC was not “impliedly converted to
a private corporation” simply because its charter was
amended to vest in it the authority to secure loans, be
exempted from payment of all duties, taxes, fees and
other charges, etc. (Camporedondo v. NLRC, G.R.
No. 129049, Aug. 6, 1999, 1st Div. [Pardo])
275. What is a primarily confidential position? What is
the test to determine whether a position is primarily
confidential or not?
Held: A primarily confidential position is one which
denotes not only confidence in the aptitude of the
appointee for the duties of the office but primarily close
intimacy which ensures freedom from intercourse without
embarrassment or freedom from misgivings or betrayals
of personal trust or confidential matters of state. (De los
Santos v. Mallare, 87 Phil. 289 [1950])
Under the proximity rule, the occupant of a particular
position could be considered a confidential employee if
the predominant reason why he was chosen by the
appointing authority was the latter’s belief that he can
share a close intimate relationship with the occupant
which ensures freedom of discussion without fear or
embarrassment or misgivings of possible betrayal of
personal trust or confidential matters of state. Withal,
where the position occupied is more remote from that of
the appointing authority, the element of trust between
them is no longer predominant. (CSC v. Salas, 274
SCRA 414, June 19, 1997)
276. Does the Civil Service Law contemplate a review
of decisions exonerating officers or employees from
administrative charges?
Held: By this ruling, we now expressly abandon and
overrule extant jurisprudence that “the phrase ‘party
adversely affected by the decision’ refers to the
government employee against whom the administrative
case is filed for the purpose of disciplinary action which
may take the form of suspension, demotion in rank or
salary, transfer, removal or dismissal from office” and not
included are “cases where the penalty imposed is
suspension for not more than thirty (30) days or fine in
an amount not exceeding thirty days salary” (Paredes v.
Civil Service Commission, 192 SCRA 84, 85) or “when
respondent is exonerated of the charges, there is no
occasion for appeal.” (Mendez v. Civil Service
Commission, 204 SCRA 965, 968) In other words, we
overrule prior decisions holding that the Civil Service Law
“does not contemplate a review of decisions exonerating
officers or employees from administrative charges”
enunciated in Paredes v. Civil Service Commission (192
SCRA 84); Mendez v. Civil Service Commission (204 SCRA
965); Magpale v. Civil Service Commission (215 SCRA
398); Navarro v. Civil Service Commission and Export
Processing Zone Authority (226 SCRA 207) and more
recently Del Castillo v. Civil Service Commission (237
SCRA 184). (CSC v. Pedro O. Dacoycoy, G.R. No.
135805, April 29, 1999, En Banc [Pardo])
277. What is preventive suspension? Discuss its
nature.
Held: Imposed during the pendency of an administrative
investigation, preventive suspension is not a penalty in
itself. It is merely a measure of precaution so that the
employee who is charged may be separated, for obvious
reasons, from the scene of his alleged misfeasance while
the same is being investigated. Thus preventive
suspension is distinct from the administrative penalty of
removal from office such as the one mentioned in Sec.
8(d) of P.D. No. 807. While the former may be imposed
on a respondent during the investigation of the charges
against him, the latter is the penalty which may only be
meted upon him at the termination of the investigation or
the final disposition of the case. (Beja, Sr. v. CA, 207
SCRA 689, March 31, 1992 [Romero])
278. Discuss the kinds of preventive suspension under
the Civil Service Law. When may a civil service employee
placed under preventive suspension be entitled to
compensation?
Held: There are two kinds of preventive suspension of
civil service employees who are charged with offenses
punishable by removal or suspension: (1) preventive
suspension pending investigation (Sec. 51, Civil Service
Law, EO No. 292) and (2) preventive suspension pending
appeal if the penalty imposed by the disciplining authority
is suspension or dismissal and, after review, the
respondent is exonerated (Section 47, par. 4, Civil Service
Law, EO No. 292).
Preventive suspension pending investigation is not a
penalty. It is a measure intended to enable the
disciplining authority to investigate charges against
respondent by preventing the latter from intimidating or
in any way influencing witnesses against him. If the
investigation is not finished and a decision is not rendered
within that period, the suspension will be lifted and the
respondent will automatically be reinstated. If after
investigation respondent is found innocent of the charges
and is exonerated, he should be reinstated. However, no
compensation was due for the period of preventive
suspension pending investigation. The Civil Service Act of
1959 (R.A. No. 2260) providing for compensation in such
a case once the respondent was exonerated was revised
in 1975 and the provision on the payment of salaries
during suspension was deleted.
But although it is held that employees who are
preventively suspended pending investigation are not
entitled to the payment of their salaries even if they are
exonerated, they are entitled to compensation for the
period of their suspension pending appeal if eventually
they are found innocent.
Preventive suspension pending investigation x x x is not a
penalty but only a means of enabling the disciplining
authority to conduct an unhampered investigation. On
the other hand, preventive suspension pending appeal is
actually punitive although it is in effect subsequently
considered illegal if respondent is exonerated and the
administrative decision finding him guilty is reversed.
Hence, he should be reinstated with full pay for the period
of the suspension. (Gloria v. CA, G.R. No. 131012,
April 21, 1999, En Banc [Mendoza])
279. Discuss the power of Ombudsman to conduct
administrative investigations, and to impose preventive
suspension.
Held: Worth stressing, to resolve the present
controversy, we must recall that the authority of the
Ombudsman to conduct administrative investigations is
mandated by no less than the Constitution. x x x
R.A. 6770, the Ombudsman Law, further grants the Office
of the Ombudsman the statutory power to conduct
administrative investigations. X x x
Section 21 of R.A. 6770 names the officials subject to the
Ombudsman’s disciplinary authority x x x.
Petitioner is an elective local official accused of grave
misconduct and dishonesty. That the Office of the
Ombudsman may conduct an administrative investigation
into the acts complained of, appears clear from the
foregoing provisions of R.A. 6770.
However, the question of whether or not the Ombudsman
may conduct an investigation over a particular act or
omission, is different from the question of whether or not
petitioner, after investigation, may be held
administratively liable. This distinction ought here to be
kept in mind, even as we must also take note that the
power to investigate is distinct from the power to suspend
preventively an erring public officer.
Likewise worthy of note, the power of the Office of the
Ombudsman to preventively suspend an official subject to
its administrative investigation is provided by specific
provision of law. X x x
We have previously interpreted the phrase “under his
authority” to mean that the Ombudsman can preventively
suspend all officials under investigation by his office,
regardless of the branch of government in which they are
employed (Buenaseda v. Flavier, 226 SCRA 645, 654
[1993]), excepting of course those removable by
impeachment, members of Congress and the Judiciary.
The power to preventively suspend is available not only
to the Ombudsman but also to the Deputy Ombudsman.
This is the clear import of Section 24 of R.A. 6770
abovecited.
There can be no question in this case as to the power and
authority of respondent Deputy Ombudsman to issue an
order of preventive suspension against an official like the
petitioner, to prevent that official from using his office to
intimidate or influence witnesses (Gloria v. CA, et al., G.R.
No. 131012, April 21, 1999, p. 7, 306 SCRA 287) or to
tamper with records that might be vital to the prosecution
of the case against him (Yasay, Jr. v. Desierto, et al., G.R.
No. 134495, December 28, 1998, p. 9, 300 SCRA 494).
In our view, the present controversy simply boils down to
this pivotal question: Given the purpose of preventive
suspension and the circumstances of this case, did
respondent Deputy Ombudsman commit a grave abuse of
discretion when he set the period of preventive
suspension at six months?
Preventive suspension under Sec. 24, R.A. 6770 x x x may
be imposed when, among other factors, the evidence of
guilt is strong. The period for which an official may be
preventively suspended must not exceed six months. In
this case, petitioner was preventively suspended and
ordered to cease and desist from holding office for the
entire period of six months, which is the maximum
provided by law.
The determination of whether or not the evidence of guilt
is strong as to warrant preventive suspension rests with
the Ombudsman (Nera v. Garcia, 106 Phil. 1031 [1960];
others omitted.). The discretion as regards the period of
such suspension also necessarily belongs to the
Ombudsman, except that he cannot extend the period of
suspension beyond that provided by law (Castillo-Co v.
Barbers, supra.). But, in our view, both the strength of
the evidence to warrant said suspension and the propriety
of the length or period of suspension imposed on
petitioner are properly raised in this petition for certiorari
and prohibition. X x x
Xxx
Given these findings, we cannot say now that there is no
evidence sufficiently strong to justify the imposition of
preventive suspension against petitioner. But considering
its purpose and the circumstances in the case brought
before us, it does appear to us that the imposition of the
maximum period of six months is unwarranted.
X x x [G]ranting that now the evidence against petitioner
is already strong, even without conceding that initially it
was weak, it is clear to us that the maximum six-month
period is excessive and definitely longer than necessary
for the Ombudsman to make its legitimate case against
petitioner. We must conclude that the period during
which petitioner was already preventively suspended, has
been sufficient for the lawful purpose of preventing
petitioner from hiding and destroying needed documents,
or harassing and preventing witnesses who wish to
appear against him. (Garcia v. Mojica, 314 SCRA 207,
Sept. 10, 1999, 2nd Div. [Quisumbing])
280. Distinguish preventive suspension under the
Local Government Code from preventive suspension
under the Ombudsman Act.
Held: We reach the foregoing conclusion, however,
without necessarily subscribing to petitioner’s claim that
the Local Government Code, which he averred should
apply to this case of an elective local official, has been
violated. True, under said Code, preventive suspension
may only be imposed after the issues are joined, and only
for a maximum period of sixty days. Here, petitioner was
suspended without having had the chance to refute first
the charges against him, and for the maximum period of
six months provided by the Ombudsman Law. But as
respondents argue, administrative complaints
commenced under the Ombudsman Law are distinct from
those initiated under the Local Government Code.
Respondents point out that the shorter period of
suspension under the Local Government Code is intended
to limit the period of suspension that may be imposed by
a mayor, a governor, or the President, who may be
motivated by partisan political considerations. In contrast
the Ombudsman, who can impose a longer period of
preventive suspension, is not likely to be similarly
motivated because it is a constitutional body. The
distinction is valid but not decisive, in our view, of whether
there has been grave abuse of discretion in a specific case
of preventive suspension.
Xxx
Respondents may be correct in pointing out the
reason for the shorter period of preventive suspension
imposable under the Local Government Code. Political
color could taint the exercise of the power to suspend
local officials by the mayor, governor, or President’s
office. In contrast the Ombudsman, considering the
constitutional origin of his Office, always ought to be
insulated from the vagaries of politics, as respondents
would have us believe.
In Hagad v. Gozo-Dadole (251 SCRA 242 [1995]),
on the matter of whether or not the Ombudsman has
been stripped of his power to investigate local elective
officials by virtue of the Local Government Code, we said:
“Indeed, there is nothing in the Local Government Code
to indicate that it has repealed, whether expressly or
impliedly, the pertinent provisions of the Ombudsman Act.
The two statutes on the specific matter in question are
not so inconsistent, let alone irreconcilable, as to compel
us to only uphold one and strike down the other.” (Hagad
v. Gozo-Dadole, supra, 251-252)
It was also argued in Hagad, that the six-month
preventive suspension under the Ombudsman Law is
“much too repugnant” to the 60-day period that may be
imposed under the Local Government Code. But per J.
Vitug, “the two provisions govern differently.” (Id., at
253-254)
However, petitioner now contends that Hagad did
not settle the question of whether a local elective official
may be preventively suspended even before the issues
could be joined. Indeed it did not, but we have held in
other cases that there could be preventive suspension
even before the charges against the official are heard, or
before the official is given an opportunity to prove his
innocence (supra at note 14, excluding the case of
Buenaseda v. Flavier). Preventive suspension is
merely a preliminary step in an administrative
investigation and is not in any way the final determination
of the guilt of the official concerned.
Petitioner also avers that the suspension order
against him was issued in violation of Section 26[2] of the
Ombudsman Law x x x.
Petitioner argues that before an inquiry may be
converted into a full-blown administrative investigation,
the official concerned must be given 72 hours to answer
the charges against him. In his case, petitioner says the
inquiry was converted into an administrative investigation
without him being given the required number of hours to
answer.
Indeed, it does not appear that petitioner was
given the requisite 72 hours to submit a written answer
to the complaint against him. This, however, does not
make invalid the preventive suspension order issued
against him. As we have earlier stated, a preventive
suspension order may be issued even before the charges
against the official concerned is heard.
Moreover, respondents state that petitioner was given 10
days to submit his counter-affidavit to the complaint filed
by respondent Tagaan. We find this 10-day period is in
keeping with Section 5[a] of the Rules of Procedure of the
Office of the Ombudsman x x x. (Garcia v. Mojica, 314
SCRA 207, Sept. 10, 1999, 2nd Div. [Quisumbing])
281. Does Section 13, Republic Act No. 3019 exclude
from its coverage the members of Congress and,
therefore, the Sandiganbayan erred in decreeing the
preventive suspension order against Senator Miriam
Defensor-Santiago? Will the order of suspension
prescribed by Republic Act No. 3019 not encroach on the
power of Congress to discipline its own ranks under the
Constitution?
Held: The petition assails the authority of the
Sandiganbayan to decree a ninety-day preventive
suspension of Mme. Miriam Defensor-Santiago, a
Senator of the Republic of the Philippines, from any
government position, and furnishing a copy thereof to
the Senate of the Philippines for the implementation of
the suspension order.
The authority of the Sandiganbayan to order the
preventive suspension of an incumbent public official
charged with violation of the provisions of Republic Act
No. 3019 has both legal and jurisprudential support. X x
x hearing, there is no hard and fast rule as to the conduct
In the relatively recent case of Segovia v.
Sandiganbayan (288 SCRA 328 [1998]), the Court
reiterated:
“The validity of Section 13, R.A. 3019, as amended –
treating of the suspension pendente lite of an accused
public officer – may no longer be put at issue, having
been repeatedly upheld by this Court.
“X x x
“The provision of suspension pendente lite applies to all
persons indicted upon a valid information under the Act,
whether they be appointive or elective officials; or
permanent or temporary employees, or pertaining to the
career or non-career service.” (At pp. 336-337)
It would appear, indeed, to be a ministerial duty
of the court to issue an order of suspension upon
determination of the validity of the information filed
before it. Once the information is found to be sufficient
in form and substance, the court is bound to issue an
order of suspension as a matter of course, and there
seems to be “no ifs and buts about it.” (Libanan v.
Sandiganbayan, 163 SCRA 163 [1988]) Explaining the
nature of the preventive suspension, the Court in the
case of Bayot v. Sandiganbayan (128 SCRA 383 [1984])
observed:
“x x x It is not a penalty because it is not imposed as a
result of judicial proceedings. In fact, if acquitted, the
official concerned shall be entitled to reinstatement and
to the salaries and benefits which he failed to receive
during suspension.” (At p. 386)
In issuing the preventive suspension of
petitioner, the Sandiganbayan merely adhered to the
clear and unequivocal mandate of the law, as well as the
jurisprudence in which the Court has, more than once,
upheld Sandiganbayan’s authority to decree the
suspension of public officials and employees indicted
before it.
Section 13 of Republic Act No. 3019 does not
state that the public officer concerned must be
suspended only in the office where he is alleged to have
committed the acts with which he has been charged.
Thus, it has been held that the use of the word “office”
would indicate that it applies to any office which the
officer charged may be holding, and not only the
particular office under which he stands accused. (Bayot
v. Sandiganbayan, supra; Segovia v. Sandiganbayan,
supra.)
En passant, while the imposition of suspension is
not automatic or self-operative as the validity of the
information must be determined in a pre-suspension
thereof. It has been said that –
“ ‘x x x No specific rules need be laid down for such pre-
suspension hearing. Suffice it to state that the accused
should be given a fair and adequate opportunity to
challenge the VALIDITY OF THE CRIMINAL
PROCEEDINGS against him, e.g., that he has not been
afforded the right of due preliminary investigation; that
the acts for which he stands charged do not constitute a
violation of the provisions of Republic Act 3019 or the
bribery provisions of the Revised Penal Code which
would warrant his mandatory suspension from office
under Section 13 of the Act; or he may present a motion
to quash the information on any of the grounds provided
for in Rule 117 of the Rules of Court x x x.’
“x x x
“Likewise, he is accorded the right to challenge the
propriety of his prosecution on the ground that the acts
for which he is charged do not constitute a violation of
Rep. Act 3019, or of the provisions on bribery of the
Revised Penal Code, and the right to present a motion to
quash the information on any other grounds provided in
Rule 117 of the Rules of Court.
“However, a challenge to the validity of the criminal
proceedings on the ground that the acts for which the
accused is charged do not constitute a violation of the
provisions of Rep. Act No. 3019, or of the provisions on
bribery of the Revised Penal Code, should be treated
only in the same manner as a challenge to the criminal
proceeding by way of a motion to quash on the ground
provided in Paragraph (a), Section 2 of Rule 117 of the
Rules of Court, i.e., that the facts charged do not
constitute an offense. In other words, a resolution of
the challenge to the validity of the criminal proceeding,
on such ground, should be limited to an inquiry whether
the facts alleged in the information, if hypothetically
admitted, constitute the elements of an offense
punishable under Rep. Act 3019 or the provisions on
bribery of the Revised Penal Code.” (Luciano v. Mariano,
40 SCRA 187 [1971]; People v. Albano, 163 SCRA 511,
517-519 [1988])
The law does not require that the guilt of the
accused must be established in a pre-suspension
proceeding before trial on the merits proceeds. Neither
does it contemplate a proceeding to determine (1) the
strength of the evidence of culpability against him, (2)
the gravity of the offense charged, or (3) whether or not
his continuance in office could influence the witnesses or
pose a threat to the safety and integrity of the records
and other evidence before the court could have a valid
basis in decreeing preventive suspension pending the
trial of the case. All it secures to the accused is
adequate opportunity to challenge the validity or
regularity of the proceedings against him, such as, that
he has not been afforded the right to due preliminary
investigation, that the acts imputed to him do not
constitute a specific crime warranting his mandatory
suspension from office under Section 13 of Republic Act
No. 3019, or that the information is subject to quashal
on any of the grounds set out in Section 3, Rule 117, of
the Revised Rules on Criminal Procedure (Segovia v.
Sandiganbayan, supra; Resolution of the Supreme Court
in A.M. No. 00-05-03-SC, dated 03 October 2000, which
became effective on 01 December 2000)
Xxx
The pronouncement, upholding the validity of
the information filed against petitioner, behooved
Sandiganbayan to discharge its mandated duty to
forthwith issue the order of preventive suspension.
The order of suspension prescribed by Republic
Act No. 3019 is distinct from the power of Congress to
discipline its own ranks under the Constitution which
provides that each –
“x x x house may determine the rules of its proceedings,
punish its Members for disorderly behavior, and, with
the concurrence of two-thirds of all its Members,
suspend or expel a Member. A penalty of suspension,
when imposed, shall not exceed sixty days.” (Section
16[3], Article VI, 1987 Constitution)
The suspension contemplated in the above
constitutional provision is a punitive measure that is
imposed upon determination by the Senate or the House
of Representatives, as the case may be, upon an erring
member. Thus, in its resolution in the case of Ceferino
Paredes, Jr. v. Sandiganbayan, et al. (G.R. No. 118364,
08 August 1995), the Court affirmed the order of
suspension of Congressman Paredes by the
Sandiganbayan, despite his protestations on the
encroachment by the court on the prerogatives of
Congress. The Court ruled:
“x x x. Petitioner’s invocation of Section 16 (3), Article
VI of the Constitution – which deals with the power of
each House of Congress inter alia to ‘punish its Members
for disorderly behavior,’ and ‘suspend or expel a
Member’ by a vote of two-thirds of all its Members
subject to the qualification that the penalty of
suspension, when imposed, should not exceed sixty days
– in unavailing, as it appears to be quite distinct from
the suspension spoken of in Section 13 of RA 3019,
which is not a penalty but a preliminary, preventive
measure, prescinding from the fact that the latter is not
being imposed on petitioner for misbehavior as a
Member of the House of Representatives.”
The doctrine of separation of powers by itself may not
be deemed to have effectively excluded Members of
Congress from Republic Act No. 3019 nor from its
sanctions. The maxim simply recognizes each of the
three co-equal and independent, albeit coordinate,
branches of the government – the Legislative, the
Executive and the Judiciary – has exclusive prerogatives
and cognizance within its own sphere of influence and
effectively prevents one branch from unduly intruding
into the internal affairs of either branch.
Parenthetically, it might be well to elaborate a bit.
Section 1, Article VIII, of the 1987 Constitution,
empowers the Court to act not only in the settlement of
“actual controversies involving rights which are legally
demandable and enforceable,” but also in the
determination of “whether or not there has been a grave
abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality
of the government.” The provision allowing the Court to
look into any possible grave abuse of discretion
committed by any government instrumentality has
evidently been couched in general terms in order to
make it malleable to judicial interpretation in the light of
any emerging milieu. In its normal concept, the term
has been said to imply an arbitrary, despotic, capricious
or whimsical exercise of judgment amounting to lack or
excess of jurisdiction. When the question, however,
pertains to an affair internal to either of Congress or the
Executive, the Court subscribes to the view that unless
an infringement of any specific Constitutional
proscription thereby inheres the Court should not deign
substitute its own judgment over that of any of the
other two branches of government. It is an impairment
or a clear disregard of a specific constitutional precept or
provision that can unbolt the steel door for judicial
intervention. If any part of the Constitution is not, or
ceases to be, responsive to contemporary needs, it is
the people, not the Court, who must promptly react in
the manner prescribed by the Charter itself.
Republic Act No. 3019 does not exclude from its
coverage the members of Congress and that, therefore,
the Sandiganbayan did not err in thus decreeing the
assailed preventive suspension order.
Attention might be called to the fact that Criminal Case
No. 16698 has been decided by the First Division of the
Sandiganbayan on 06 December 1999, acquitting herein
petitioner. The Court, nevertheless, deems it
appropriate to render this decision for future guidance
on the significant issue raised by petitioner. (Santiago
v. Sandiganbayan, 356 SCRA 636, April 18, 2001,
En Banc [Vitug])
282. What is the doctrine of forgiveness or
condonation? Does it apply to pending criminal cases?
Held: 1. A public official cannot be removed for
administrative misconduct committed during a prior term,
since his re-election to office operates as a condonation
of the officer’s previous misconduct to the extent of
cutting off the right to remove him therefor. The
foregoing rule, however, finds no application to criminal
cases pending against petitioner. (Aguinaldo v.
Santos, 212 SCRA 768, 773 [1992])
2. A reelected local official may not be held
administratively accountable for misconduct committed
during his prior term of office. The rationale for this
holding is that when the electorate put him back into
office, it is presumed that it did so with full knowledge of
his life and character, including his past misconduct. If,
armed with such knowledge, it still reelects him, then such
reelection is considered a condonation of his past
misdeeds. (Mayor Alvin B. Garcia v. Hon. Arturo C.
Mojica, et al., G.R. No. 139043, Sept. 10, 1999
[Quisumbing])
283. What is the Doctrine of Condonation? Illustrative
case.
Held: Petitioner contends that, per our ruling in
Aguinaldo v. Santos (212 SCRA 768 [1992]), his reelection
has rendered the administrative case filed against him
moot and academic. This is because his reelection
operates as a condonation by the electorate of the
misconduct committed by an elective official during his
previous term. Petitioner further cites the ruling of this
Court in Pascual v. Hon. Provincial Board of Nueva Ecija
(106 Phil. 466, 472 [1959], citing Conant v. Brogan, 6
N.Y.S.R. 332 [1887], cited in 17 A.L.R. 281, 63, So. 559,
50 LRA [NS] 553), that
“x x x When the people have elected a man to office, it
must be assumed that they did this with knowledge of his
life and character, and that they disregarded or forgave
his faults or misconduct, if he had been guilty of any. It
is not for the court, by reason of such faults or misconduct
to practically overrule the will of the people.”
Respondents, on the other hand, contend that while the
contract in question was signed during the previous term
of petitioner, it was to commence or be effective only on
September 1998 or during his current term. It is the
respondents’ submission that petitioner “went beyond the
protective confines” of jurisprudence when he “agreed to
extend his act to his current term of office.” Aguinaldo
cannot apply, according to respondents, because what is
involved in this case is a misconduct committed during a
previous term but to be effective during the current term.
Respondents maintain that,
“x x x petitioner performed two acts with respect to the
contract: he provided for a suspensive period making the
supply contract commence or be effective during his
succeeding or current term and during his current term of
office he acceded to the suspensive period making the
contract effective during his current term by causing the
implementation of the contract.”
Hence, petitioner cannot take refuge in the fact
of his reelection, according to respondents.
Further, respondents point out that the contract
in question was signed just four days before the date of
the 1998 election and so it could not be presumed that
when the people of Cebu City voted petitioner to office,
they did so with full knowledge of petitioner’s character.
On this point, petitioner responds that knowledge
of an official’s previous acts is presumed and the court
need not inquire whether, in reelecting him, the electorate
was actually aware of his prior misdeeds.
Petitioner cites our ruling in Salalima v. Guingona
(257 SCRA 55 [1996]), wherein we absolved Albay
governor Ramon R. Salalima of his administrative liability
as regards a retainer agreement he signed in favor of a
law firm during his previous term, although
disbursements of public funds to cover payments under
the agreement were still being done during his
subsequent term. Petitioner argues that, following
Salalima, the doctrine of Aguinaldo applies even where
the effects of the acts complained of are still evident
during the subsequent term of the reelected official. The
implementation of the contract is a mere incident of its
execution. Besides, according to petitioner, the “sole act”
for which he has been administratively charged is the
signing of the contract with F.E. Zuellig. The charge, in
his view, excludes the contract’s execution or
implementation, or any act subsequent to the perfection
of the contract.
In Salalima, we recall that the Solicitor General
maintained that Aguinaldo did not apply to that case
because the administrative case against Governor Rodolfo
Aguinaldo of Cagayan was already pending when he filed
his certificate of candidacy for his reelection bid.
Nevertheless, in Salalima, the Court applied the Aguinaldo
doctrine, even if the administrative case against Governor
Salalima was filed after his reelection.
Xxx
We now come to the concluding inquiry. Granting
that the Office of the Ombudsman may investigate, for
purposes provided for by law, the acts of petitioner
committed prior to his present term of office; and that it
may preventively suspend him for a reasonable period,
can that office hold him administratively liable for said
acts?
In a number of cases, we have repeatedly held
that a reelected local official may not be held
administratively accountable for misconduct committed
during his prior term of office (Pascual v. Hon. Provincial
Board of Nueva Ecija, 106 Phil. 466 [1959]; others
omitted). The rationale for this holding is that when the
electorate put him back into office, it is resumed that it
did so with full knowledge of his life and character,
including his past misconduct. If, armed with such
knowledge, it still reelects him, then such reelection is
considered a condonation of his past misdeeds.
However, in the present case, respondents point
out that the contract entered into by petitioner with F.E.
Zuellig was signed just four days before the date of the
elections. It was not made an issue during the election,
and so the electorate could not be said to have voted for
petitioner with knowledge of this particular aspect of his
life and character.
For his part, petitioner contends that “the only
conclusive determining factor” as regards the people’s
thinking on the matter is an election. On this point we
agree with petitioner. That the people voted for an official
with knowledge of his character is presumed, precisely to
eliminate the need to determine, in factual terms, the
extent of this knowledge. Such an undertaking will
obviously be impossible. Our rulings on the matter do not
distinguish the precise timing or period when the
misconduct was committed, reckoned from the date of
the official’s reelection, except that it must be prior to said
date.
As held in Salalima,
“The rule adopted in Pascual, qualified in Aguinaldo
insofar as criminal cases are concerned, is still a good law.
Such a rule is not only founded on the theory that an
official’s reelection expresses the sovereign will of the
electorate to forgive or condone any act or omission
constituting a ground for administrative discipline which
was committed during his previous term. We may add
that sound policy dictates it. To rule otherwise would
open the floodgates to exacerbating endless partisan
contests between the reelected official and his political
enemies, who may not stop to hound the former during
his new term with administrative cases for acts alleged to
have been committed during his previous term. His
second term may thus be devoted to defending himself in
the said cases to the detriment of public service x x x.”
(Emphasis added.) (Salalima v. Guingona, supra at 115)
The above ruling in Salalima applies to this case.
Petitioner cannot anymore be held administratively liable
for an act done during his previous term, that is, his
signing of the contract with F.E. Zuellig.
The assailed retainer agreement in Salalima was
executed sometime in 1990. Governor Salalima was
reelected in 1992 and payments for the retainer continued
to be made during his succeeding term. This situation is
no different from the one in the present case, wherein
deliveries of the asphalt under the contract with F.E.
Zuellig and the payments therefor were supposed to have
commenced on September 1998, during petitioner’s
second term.
However, respondents argue that the contract,
although signed on May 7, 1998, during petitioner’s prior
term, is to be made effective only during his present term.
We fail to see any difference to justify a valid
distinction in the result. The agreement between
petitioner (representing Cebu City) and F.E. Zuellig was
perfected on the date the contract was signed, during
petitioner’s prior term. At that moment, petitioner already
acceded to the terms of the contract, including
stipulations now alleged to be prejudicial to the city
government. Thus, any culpability petitioner may have in
signing the contract already became extant on the day
the contract was signed. It hardly matters that the
deliveries under the contract are supposed to have been
made months later.
While petitioner can no longer be held
administratively liable for signing the contract with F.E.
Zuellig, however, this should not prejudice the filing of
any case other than administrative against petitioner. Our
ruling in this case, may not be taken to mean the total
exoneration of petitioner for whatever wrongdoing, if any,
might have been committed in signing the subject
contract. The ruling now is limited to the question of
whether or not he may be held administratively liable
therefor, and it is our considered view that he may not.
(Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999,
2nd Div. [Quisumbing])
284. What are the situations covered by the law on
nepotism?
Held: Under the definition of nepotism, one is guilty of
nepotism if an appointment is issued in favor of a relative
within the third civil degree of consanguinity or affinity of
any of the following:

a) appointing authority;
b) recommending authority;
c) chief of the bureau or office; and
d) person exercising immediate supervision over
the appointee.
Clearly, there are four situations covered. In the last two
mentioned situations, it is immaterial who the appointing
or recommending authority is. To constitute a violation
of the law, it suffices that an appointment is extended or
issued in favor of a relative within the third civil degree of
consanguinity or affinity of the chief of the bureau or
office, or the person exercising immediate supervision
over the appointee. (CSC v. Pedro O. Dacoycoy, G.R.
No. 135805, April 29, 1999, En Banc [Pardo])
285. What are the exemptions from the operation of
the rules on nepotism?
Ans.: The following are exempted from the operation of
the rules on nepotism: (a) persons employed in a
confidential capacity, (b) teachers, (c) physicians, and (d)
members of the Armed Forces of the Philippines.
The rules on nepotism shall likewise not be
applicable to the case of a member of any family who,
after his or her appointment to any position in an office
or bureau, contracts marriage with someone in the same
office or bureau, in which event the employment or
retention therein of both husband and wife may be
allowed. (Sec. 59, Chap. 7, Subtitle A, Title I, Bk. V,
E.O. No. 292)
286. Distinguish “term” of office from “tenure” of the
incumbent.
Held: In the law of public officers, there is a settled
distinction between “term” and “tenure.” “[T]he term of
an office must be distinguished from the tenure of the
incumbent. The term means the time during which the
officer may claim to hold office as of right, and fixes the
interval after which the several incumbents shall succeed
one another. The tenure represents the term during
which the incumbent actually holds the office. The term
of office is not affected by the hold-over. The tenure may
be shorter than the term for reasons within or beyond the
power of the incumbent.” (Thelma P. Gaminde v.
COA, G.R. No. 140335, Dec. 13, 2000, En Banc
[Pardo])
287. Discuss the operation of the rotational plan
insofar as the term of office of the Chairman and Members
of the Constitutional Commissions is concerned.
Held: In Republic v. Imperial (96 Phil. 770 [1955]), we
said that “the operation of the rotational plan requires two
conditions, both indispensable to its workability: (1) that
the terms of the first three (3) Commissioners should start
on a common date, and (2) that any vacancy due to
death, resignation or disability before the expiration of the
term should only be filled only for the unexpired balance
of the term.”
Consequently, the terms of the first Chairmen and
Commissioners of the Constitutional Commissions under
the 1987 Constitution must start on a common date,
irrespective of the variations in the dates of appointments
and qualifications of the appointees, in order that the
expiration of the first terms of seven, five and three years
should lead to the regular recurrence of the two-year
interval between the expiration of the terms.
Applying the foregoing conditions x x x, we rule that the
appropriate starting point of the terms of office of the first
appointees to the Constitutional Commissions under the
1987 Constitution must be on February 2, 1987, the date
of the adoption of the 1987 Constitution. In case of a
belated appointment or qualification, the interval between
the start of the term and the actual qualification of the
appointee must be counted against the latter. (Thelma
P. Gaminde v. COA, G.R. No. 140335, Dec. 13,
2000, En Banc [Pardo])
288. What is the hold-over doctrine? What is its
purpose?
Held: 1. The concept of holdover when applied to a
public officer implies that the office has a fixed term and
the incumbent is holding onto the succeeding term. It is
usually provided by law that officers elected or appointed
for a fixed term shall remain in office not only for that
term but until their successors have been elected and
qualified. Where this provision is found, the office does
not become vacant upon the expiration of the term if
there is no successor elected and qualified to assume it,
but the present incumbent will carry over until his
successor is elected and qualified, even though it be
beyond the term fixed by law.
Absent an express or implied constitutional or statutory
provision to the contrary, an officer is entitled to stay in
office until his successor is appointed or chosen and has
qualified. The legislative intent of not allowing holdover
must be clearly expressed or at least implied in the
legislative enactment, otherwise it is reasonable to
assume that the law-making body favors the same.
Indeed, the law abhors a vacuum in public offices, and
courts generally indulge in the strong presumption
against a legislative intent to create, by statute, a
condition which may result in an executive or
administrative office becoming, for any period of time,
wholly vacant or unoccupied by one lawfully authorized to
exercise its functions. This is founded on obvious
considerations of public policy, for the principle of
holdover is specifically intended to prevent public
convenience from suffering because of a vacancy and to
avoid a hiatus in the performance of government
functions. (Lecaroz v. Sandiganbayan, 305 SCRA
397, March 25, 1999, 2nd Div. [Bellosillo])
2. The rule is settled that unless “holding over be
expressly or impliedly prohibited, the incumbent may
continue to hold over until someone else is elected and
qualified to assume the office.” This rule is demanded by
the “most obvious requirements of public policy, for
without it there must frequently be cases where, from a
failure to elect or a refusal or neglect to qualify, the office
would be vacant and the public service entirely
suspended.” Otherwise stated, the purpose is to prevent
a hiatus in the government pending the time when the
successor may be chosen and inducted into office.
(Galarosa v. Valencia, 227 SCRA 728, Nov. 11,
1993, En Banc [Davide, Jr.])
289. What is resignation? What are the requisites of a
valid resignation?
Held: 1. It is the act of giving up or the act of an officer
by which he declines his office and renounces the further
right to use it. It is an expression of the incumbent in
some form, express or implied, of the intention to
surrender, renounce, and relinquish the office and the
acceptance by competent and lawful authority. To
constitute a complete and operative resignation from
public office, there must be: (a) an intention to relinquish
a part of the term; (b) an act of relinquishment; and (c)
an acceptance by the proper authority. The last one is
required by reason of Article 238 of the Revised Penal
Code. (Sangguniang Bayan of San Andres,
Catanduanes v. CA, 284 SCRA 276, Jan. 16, 1998)
2. Resignation x x x is a factual question and its elements
are beyond quibble: there must be an intent to resign and
the intent must be coupled by acts of relinquishment
(Gonzales v. Hernandez, 2 SCRA 228 [1961]). The validity
of a resignation is not governed by any formal
requirement as to form. It can be oral. It can be written.
It can be express. It can be implied. As long as the
resignation is clear, it must be given legal effect.
(Estrada v. Desierto, G.R. Nos. 146710-15, March
2, 2001, en Banc [Puno])
290. What is abandonment of an office? What are its
requisites? How is it distinguished from resignation?
Held: Abandonment of an office has been defined as the
voluntary relinquishment of an office by the holder, with
the intention of terminating his possession and control
thereof. Indeed, abandonment of office is a species of
resignation; while resignation in general is a formal
relinquishment, abandonment is a voluntary
relinquishment through nonuser.
Abandonment springs from and is accompanied by
deliberation and freedom of choice. Its concomitant
effect is that the former holder of an office can no longer
legally repossess it even by forcible reoccupancy.
Clear intention to abandon should be manifested by the
officer concerned. Such intention may be express or
inferred from his own conduct. Thus, the failure to
perform the duties pertaining to the office must be with
the officer’s actual or imputed intention to abandon and
relinquish the office. Abandonment of an office is not
wholly a matter of intention; it results from a complete
abandonment of duties of such continuance that the law
will infer a relinquishment. Therefore, there are two
essential elements of abandonment; first, an intention to
abandon and, second, an overt or “external” act by which
the intention is carried into effect. (Sangguniang
Bayan of San Andres, Catanduanes v. CA, 284
SCRA 276, Jan. 16, 1998)
291. Petitioner claims that Benipayo has no authority
to remove her as Director IV of the EID and reassign her
to the Law Department. Petitioner further argues that
only the COMELEC, acting as a collegial body, can
authorize such reappointment. Moreover, petitioner
maintains that a reassignment without her consent
amounts to removal from office without due process and
therefore illegal.
Held: Petitioner’s posturing will hold water if
Benipayo does not possess any color of title to the office
of Chairman of the COMELEC. We have ruled, however,
that Benipayo is the de jure COMELEC Chairman, and
consequently he has full authority to exercise all the
powers of that office for so long as his ad interim
appointment remains effective. X x x. The Chairman,
as the Chief Executive of the COMELEC, is expressly
empowered on his own authority to transfer or reassign
COMELEC personnel in accordance with the Civil Service
Law. In the exercise of this power, the Chairman is not
required by law to secure the approval of the COMELEC
en banc.
Petitioner’s appointment papers x x x
indisputably show that she held her Director IV position
in the EID only in an acting or temporary capacity.
Petitioner is not a Career Executive Service (CES), and
neither does she hold Career Executive Service Eligibility,
which are necessary qualifications for holding the
position of Director IV as prescribed in the Qualifications
Standards (Revised 1987) issued by the Civil Service
Commission. Obviously, petitioner does not enjoy
security of tenure as Director IV. X x x
Xxx
Having been appointed merely in a temporary or
acting capacity, and not possessed of the necessary
qualifications to hold the position of Director IV,
petitioner has no legal basis in claiming that her
reassignment was contrary to the Civil Service Law. X x
x reassignment of COMELEC personnel during the election
Still, petitioner assails her reassignment, carried out
during the election period, as a prohibited act under
Section 261 (h) of the Omnibus Election Code x x x.
Xxx
Petitioner claims that Benipayo failed to secure the
approval of the COMELEC en banc to effect transfers or
reassignments of COMELEC personnel during the
election period. Moreover, petitioner insists that the
COMELEC en banc must concur to every transfer or
reassignment of COMELEC personnel during the election
period.
Contrary to petitioner’s allegation, the COMELEC did in
fact issue COMELEC Resolution No. 3300 dated
November 6, 2000, exempting the COMELEC from
Section 261 (h) of the Omnibus Election Code. X x x
Xxx
The proviso in COMELEC Resolution No. 3300, requiring
due notice and hearing before any transfer or
reassignment can be made within thirty days prior to
election day, refers only to COMELEC field personnel and
not to head office personnel like the petitioner. Under
the Revised Administrative Code (see Section 7 [4],
Chapter 2, Subtitle C, Book V of the Revised
Administrative Code), the COMELEC Chairman is the sole
officer specifically vested with the power to transfer or
reassign COMELEC personnel. The COMELEC Chairman
will logically exercise the authority to transfer or
reassign COMELEC personnel pursuant to COMELEC
Resolution No. 3300. The COMELEC en banc cannot
arrogate unto itself this power because that will mean
amending the Revised Administrative Code, an act the
COMELEC en banc cannot legally do.
COMELEC Resolution No. 3300 does not require that
every transfer or reassignment of COMELEC personnel
should carry the concurrence of the COMELEC as a
collegial body. Interpreting Resolution No. 3300 to
require such concurrence will render the resolution
meaningless since the COMELEC en banc will have to
approve every personnel transfer or reassignment,
making the resolution utterly useless. Resolution No.
3300 should be interpreted for what it is, an approval to
effect transfers and reassignments of personnel, without
need of securing a second approval from the COMELEC
en banc to actually implement such transfer or
reassignment.
The COMELEC Chairman is the official expressly
authorized by law to transfer or reassign COMELEC
personnel. The person holding that office, in a de jure
capacity, is Benipayo. The COMELEC en banc, in
COMELEC Resolution No. 3300, approved the transfer or
period. Thus, Benipayo’s order reassigning petitioner
from the EID to the Law Department does not violate
Section 261 (h) of the Omnibus Election Code. For the
same reason, Benipayo’s order designating Cinco
Officer-in-Charge of the EID is legally unassailable.
(Matibag v. Benipayo, 380 SCRA 49, April 2, 2002,
En Banc [Carpio])
292. Is a government employee who has been
ordered arrested and detained for a non-bailable offense
and for which he was suspended for his inability to
report for work until the termination of his case, still
required to file a formal application for leave of absence
to ensure his reinstatement upon his acquittal and thus
protect his security of tenure? Concomitantly, will his
prolonged absence from office for more than one (1)
year automatically justify his being dropped from the
rolls without prior notice despite his being allegedly
placed under suspension by his employer until the
termination of his case, which finally resulted in his
acquittal for lack of evidence?
EUSEBIA R. GALZOTE was employed as a lowly
clerk in the service of the City Government of Makati
City. With her meager income she was the lone provider
for her children. But her simple life was disrupted
abruptly when she was arrested without warrant and
detained for more than three (3) years for a crime she
did not commit. Throughout her ordeal she trusted the
city government that the suspension imposed on her
was only until the final disposition of her case. As she
drew near her vindication she never did expect the worst
to come to her. On the third year of her detention the
city government lifted her suspension, dropped her from
the rolls without prior notice and without her knowledge,
much less gave her an opportunity to forthwith correct
the omission of an application for leave of absence
belatedly laid on her.
Upon her acquittal for lack of evidence and her
release from detention she was denied reinstatement to
her position. She was forced to seek recourse in the
Civil Service Commission which ordered her immediate
reinstatement with back wages from 19 October 1994,
the date when she presented herself for reassumption of
duties but was turned back by the city government, up
to the time of her actual reinstatement.
Xxx
Plainly, the case of petitioner City Government
of Makati City revolves around a rotunda of doubt, a
dilemma concerning the legal status and implications of
its suspension of private respondent Eusebia R. Galzote
and the automatic leave of absence espoused by the
Civil Service Commission. Against this concern is the
punctilious adherence to technicality, the requirement
that private respondent should have filed an application
for leave of absence in proper form. The instant case is
therefore a dispute between, at its worst, private
respondent’s substantial compliance with the standing
rules, and the City Government’s insistence that the
lowly clerk should have still gone through the formalities
of applying for leave despite her detention, of which
petitioner had actual notice, and the suspension order
couched in simple language that she was being
suspended until the final disposition of her criminal case.
The meaning of suspension until the final
disposition of her case is that should her case be
dismissed she should be reinstated to her position with
payment of back wages. She did not have to apply for
leave of absence since she was already suspended by
her employer until her case would be terminated. We
have done justice to the workingman in the past; today
we will do no less by resolving all doubts in favor of the
humble employee in faithful obeisance to the
constitutional mandate to afford full protection to labor
(Const., Art. XIII, Sec. 3, par. 1; Art. II, Sec. 18)
Xxx
As may be gleaned from the pleadings of the
parties, the issues are: (1) whether private respondent
Eusebia R. Galzote may be considered absent without
leave; (b) whether due process had been observed
before she was dropped from the rolls; and, (3) whether
she may be deemed to have abandoned her position,
hence, not entitled to reinstatement with back salaries
for not having filed a formal application for leave.
Encapsulated, the issues may be reduced to whether
private respondent may be considered absent without
leave or whether she abandoned her job as to justify
being dropped from the service for not filing a formal
application for leave.
Petitioner would have private respondent
declared on AWOL and faults her for failing to file an
application for leave of absence under Secs. 20 (Now
Sec. 52 of Rule XVI, Leave of Absence, of Res. No. 91-
1631 dated 27 December 1991, as amended by CSC MC
No. 41, s. 1998) and 35 (Now Sec. 63 of Rule XVI, Leave
of Absence, of Res. No. 91-1631 dated 27 December
1991, as amended by CSC MC Nos. 41, s. 1998 and 14,
s. 1999) of the CSC Rules and rejects the CSC’s ruling of
an “automatic leave of absence for the period of her
detention” since the “current Civil Service Law and Rules
do not contain any specific provision on automatic leave
of absence.”
The Court believes that private respondent
cannot be faulted for failing to file prior to her detention
an application for leave and obtain approval thereof.
The records clearly show that she had been advised
three (3) days after her arrest, or on 9 September 1991,
that petitioner City government of Makati City had
placed her under suspension until the final disposition of
her criminal case. This act of petitioner indubitably
recognized private respondent’s predicament and thus
allowed her to forego reporting for work during the
pendency of her criminal case without the needless
exercise of strict formalities. At the very least, this
official communication should be taken as an equivalent
of a prior approved leave of absence since it was her
employer itself which placed her under suspension and
thus excused her from further formalities in applying for
such leave. Moreover, the arrangement bound the City
Government to allow private respondent to return to her
work after the termination of her case, i.e., if acquitted
of the criminal charge. This pledge sufficiently served as
legitimate reason for her to altogether dispense with the
formal application for leave; there was no reason to, as
in fact it was not required, since she was for all practical
purposes incapacitated or disabled to do so.
Indeed, private respondent did not have the least
intention to go on AWOL from her post as Clerk III of
petitioner, for AWOL means the employee leaving or
abandoning his post without justifiable reason and
without notifying his employer. In the instant case,
private respondent had a valid reason for failing to
report for work as she was detained without bail.
Hence, right after her release from detention, and when
finally able to do so, she presented herself to the
Municipal Personnel Officer of petitioner City
Government to report for work. Certainly, had she been
told that it was still necessary for her to file an
application for leave despite the 9 September 1991
assurance from petitioner, private respondent would
have lost no time in filing such piece of document. But
the situation momentarily suspending her from work
persisted: petitioner City Government did not alter the
modus vivendi with private respondent and lulled her
into believing that its commitment that her suspension
was only until the termination of her case was true and
reliable. Under the circumstances private respondent
was in, prudence would have dictated petitioner, more
particularly the incumbent city executive, in patria
potestas, to advise her that it was still necessary –
although indeed unnecessary and a useless ceremony –
to file such application despite the suspension order,
before depriving her of her legitimate right to return to
her position. Patria potestas in piatate debet, non in
atrocitate, consistere. Paternal power should consist or
be exercised in affection, not in atrocity.
It is clear from the records that private respondent
Galzote was arrested and detained without a warrant on
6 September 1991 for which reason she and her co-
accused were subjected immediately to inquest
proceedings. This fact is evident from the instant
petition itself and its attachments x x x. Hence, her
ordeal in jail began on 6 September 1991 and ended
only after her acquittal, thus leaving her no time to
attend to the formality of filing a leave of absence.
But petitioner City Government would
unceremoniously set aside its 9 September 1991
suspension order claiming that it was superseded three
(3) years later by a memorandum dropping her from the
rolls effective 21 January 1993 for absence “for more
than one (1) year without official leave.” Hence, the
suspension order was void since there was no pending
administrative charge against private respondent so that
she was not excused from filing an application for leave.
We do not agree. In placing private respondent
under suspension until the final disposition of her
criminal case, the Municipal Personnel Officer acted with
competence, so he presumably knew that his order of
suspension was not akin to either suspension as penalty
or preventive suspension since there was no
administrative case against private respondent. As
competence on the part of the MPO is presumed, any
error on his part should not prejudice private
respondent, and that what he had in mind was to
consider her as being on leave of absence without pay
and their employer-employee relationship being merely
suspended, not severed, in the meantime. This
construction of the order of suspension is actually more
consistent with logic as well as fairness and kindness to
its author, the MPO. Significantly, the idea of a
suspended employer-employee relationship is widely
accepted in labor law to account for situations wherein
laborers would have no work to perform for causes not
attributable to them (see e.g., Visayan Stevedore
Transportation Company v. Court of Industrial Relations,
No. L-21696, 25 February 1967, 19 SCRA 426; Tomas
Lao Construction v. NLRC, G.R. No. 116781, 5
September 1997, 278 SCRA 716). We find no basis for
denying the application of this principle to the instant
case which also involves a lowly worker in the public
service.
Moreover, we certainly cannot nullify the City
Government’s order of suspension, as we have no
reason to do so, much less retroactively apply such
nullification to deprive private respondent of a
compelling and valid reason for not filing the leave
application. For as we have held, a void act though in
law a mere scrap of paper nonetheless confers
legitimacy upon past acts or omissions done in reliance
thereof (De Agbayani v. Philippine National Bank, G.R.
No. 231127, 29 April 1971, 38 SCRA 429; Municipality of
Malabang v. Benito, G.R No. 28113, 28 March 1969, 27
SCRA 545). Consequently, the existence of a statute or
executive order prior to its being adjudged void is an
operative fact to which legal consequences are attached
(De Agbayani, supra, p. 435). It would indeed be
ghastly unfair to prevent private respondent from relying
upon the order of suspension in lieu of a formal leave
application.
At any rate, statements are, or should be,
construed against the one responsible for the confusion;
otherwise stated, petitioner must assume full
responsibility for the consequences of its own act,
hence, he should be made to answer for the mix-up of
private respondent as regards the leave application. At
the very least, it should be considered estopped from
claiming that its order of suspension is void or that it did
not excuse private respondent from filing an application
for leave on account of her incarceration. It is a fact
that she relied upon this order, issued barely three (3)
days from the date of her arrest, and assumed that
when the criminal case would be settled she could
return to work without need of any prior act. X x x
Xxx
The holding of the Civil Service Commission that
private respondent was on automatic leave of absence
during the period of her detention must be sustained.
The CSC is the constitutionally mandated central
personnel agency of the Government tasked to
“establish a career service and adopt measures to
promote morale, efficiency, integrity, responsiveness,
progressiveness and courtesy in the civil service”
(Const., Art. IX-B, Sec. 3) and “strengthen the merit and
rewards system, integrate all human resources
development programs for all levels and ranks, and
institutionalize a management climate conducive to
public accountability.” (Ibid.) Besides, the
Administrative Code of 1987 further empowers the CSC
to “prescribe, amend, and enforce rules and regulations
for carrying into effect the provisions of the Civil Service
Law and other pertinent laws,” (Bk. V, I (A), Ch. 3, Sec.
12) and for matters concerning leaves of absence, the
Code specifically vests the CSC to ordain –
Sec. 60. Leave of absence. – Officers and employees in
the Civil Service shall be entitled to leave of absence,
with or without pay, as may be provided by law and the
rules and regulations of the Civil Service Commission in
the interest of the service.
Pursuant thereto the CSC promulgated
Resolution No. 91-1631 dated 27 December 1991
entitled Rules Implementing Book V of Executive Order
No. 292 and Other Pertinent Civil Service Laws which it
has several times amended through memorandum
circulars. It devotes Rule XVI to leaves of absence.
Petitioner City Government relies upon Secs. 20 and 35
to debunk the CSC ruling of an automatic leave of
absence. Significantly, these provisions have been
amended so that Sec. 20 of the Civil Service Rules is
now Sec. 52 of Rule XVI, on Leave of Absence, of
Resolution No. 91-1631 dated 27 December 1991 as
amended by CSC MC No. 41, s. 1998, and Sec. 35 is
now Sec. 63 as amended by CSC MC Nos. 41, s. 1998
and 14, s. 1999.

Xxx
As a general rule, Secs. 20 and 52, as well as
Secs. 35 and 63, require an approved leave of absence
to avoid being an AWOL. However, these provisions
cannot be interpreted as exclusive and referring only to
one mode of securing the approval of a leave of absence
which would require an employee to apply for it,
formalities and all, before exceeding thirty (30) days of
absence in order to avoid from being dropped from the
rolls. There are, after all, other means of seeking and
granting an approved leave of absence, one of which is
the CSC recognized rule of automatic leave of absence
under specified circumstances. X x x
Xxx
As properly noted, the CSC was only interpreting
its own rules on leave of absence and not a statutory
provision (As a matter of fact, Sec. 60 of the
Administrative Code does not provide for any rule on
leave of absence other than that civil servants are
entitled to leave of absence) in coming up with this
uniform rule. Undoubtedly, the CSC like any other
agency has the power to interpret its own rules and any
phrase contained in them (Norwegian Nitrogen Products
Co. v. United States of America, 288 SCRA 294, 325, 77
Led. 796, 812 [1933]) with its interpretation significantly
becoming part of the rules themselves. X x x
Xxx
Under RA 6656 (An Act to Protect the Security of
Tenure of Civil Service Officers and Employees in the
Implementation of Government Reorganization) and RA
7160 (The Local Government Code of 1991), civil
servants who are found illegally dismissed or retrenched
are entitled to full pay for the period of their separation.
Our final point. An efficient and honest
bureaucracy is never inconsistent with the emphasis on
and the recognition of the basic rights and privileges of
our civil servants or, for that matter, the constitutional
mandates of the Civil Service Commission. In fact only
from an enlightened corps of government workers and
an effective CSC grows the professionalization of the
bureaucracy. Indeed the government cannot be left in
the lurch; but neither could we decree that government
personnel be separated from their jobs indiscriminately
regardless of fault. The fine line between these
concerns may be difficult to clearly draw but if we only
exerted extra effort to rebel against the allure of legal
over-simplification, justice would have been done where
it is truly due. (City Government of Makati City v.
Civil Service Commission, 376 SCRA 248, Feb. 6,
2002, En Banc [Bellosillo])
293. What is abandonment of office? What are its
essential elements?
Held: Abandonment of an office is the voluntary
relinquishment of an office by the holder, with the
intention of terminating his possession and control
thereof (Sangguniang Bayan of San Andres, Catanduanes
v. Court of Appeals, 284 SCRA 276 [1998]). In order to
constitute abandonment of an office, it must be total and
under such circumstances as clearly to indicate an
absolute relinquishment (Airoso v. De Guzman, 49 Phil.
371 [1926]). There must be a complete abandonment of
duties of such continuance that the law will infer a
relinquishment (67 C.J.S. Officers Sec. 100, citing Cosby
v. Moore, 65 So.2d 178, 259 Ala. 41). Abandonment of
duties is a voluntary act (Ibid., citing Steingruber v. San
Antonio, Comm. App., 220 S.W. 77, 78) ; it springs from
and is accompanied by deliberation and freedom of choice
(Jorge v. Mayor, 10 SCRA 331 [1964], citing Teves v.
Sindiong, 81 Ohil. 658 [1948]). There are, therefore, two
essential elements of abandonment: first, an intention to
abandon and second, an overt or “external” act by which
the intention is carried into effect (67 C.J.S. Officers Sec.
100, citing Rainwater v. State ex rel. Strickland, 178 So.
484, 237 Ala. 482, 121 A.L.R. 981)
Generally speaking, a person holding a public office may
abandon such office by nonuser or acquiescence (Ibid.,
citing Herbert v. State Oil and Gas Bd., 250 So.2d 597,
287 Ala. 221). Non-user refers to a neglect to use a right
or privilege or to exercise an office (Sangguniang Bayan
of San Andres, Catanduanes v. Court of Appeals, supra).
However, nonperformance of the duties of an office does
not constitute abandonment where such nonperformance
results from temporary disability or from involuntary
failure to perform (67 C.J.S. Sec. 100, citing Doris v.
Heroux, 47 A.2d 633, 71 R.I. 491). Abandonment may
also result from an acquiescence by the officer in his
wrongful removal or discharge, for instance, after a
summary removal, an unreasonable delay by an officer
illegally removed in taking steps to vindicate his rights
may constitute an abandonment of the office (Ibid., citing
Nicholas v. U.S., Ct. Cl., 42 S.Ct. 7, 257 U.S. 71, 66 L. Ed.
133). Where, while desiring and intending to hold the
office, and with no willful desire or intention to abandon
it, the public officer vacates it in deference to the
requirements of a statute which is afterwards declared
unconstitutional, such a surrender will not be deemed an
abandonment and the officer may recover the effect.
(Mechem, A Treatise on the Law of Public Offices and
Officers, 1890 edition, p. 279, citing Turnipseed v.
Hudson, 50 Miss. 429, 19 Am. Rep. 15) (Canonizado v.
Aguirre, 351 SCRA 659, 665-668, Feb. 15, 2001, En
Banc [Gonzaga-Reyes])
294. By accepting another position in the government
during the pendency of a case – brought precisely to
assail the constitutionality of his removal - may a person
be deemed to have abandoned his claim for
reinstatement?
Held: Although petitioners do not deny the appointment
of Canonizado as Inspector General, they maintain that
Canonizado’s initiation and tenacious pursuance of the
present case would belie any intention to abandon his
former office. Petitioners assert that Canonizado should
not be faulted for seeking gainful employment during the
pendency of this case. Furthermore, petitioners point out
that from the time Canonizado assumed office as
Inspector General he never received the salary pertaining
to such position x x x.
Xxx
By accepting the position of Inspector General
during the pendency of the present case – brought
precisely to assail the constitutionality of his removal from
the NAPOLCOM – Canonizado cannot be deemed to have
abandoned his claim for reinstatement to the latter
position. First of all, Canonizado did not voluntarily leave
his post as Commissioner, but was compelled to do so on
the strength of Section 8 of RA 8551 x x x
In our decision of 25 January 2000, we struck
down the abovequoted provision for being violative of
petitioner’s constitutionally guaranteed right to security
of tenure. Thus, Canonizado harbored no willful desire
or intention to abandon his official duties. In fact,
Canonizado, together with petitioners x x x lost no time
disputing what they perceived to be an illegal removal; a
few weeks after RA 8551 took effect x x x petitioners
instituted the current action x x x assailing the
constitutionality of certain provisions of said law. The
removal of petitioners from their positions by virtue of a
constitutionally infirm act necessarily negates a finding
of voluntary relinquishment. (Canonizado v. Aguirre,
351 SCRA 659, 665-668, Feb. 15, 2001, En Banc
[Gonzaga-Reyes])
295. What is the effect of acceptance of an
incompatible office to a claim for reinstatement?
Held: The next issue is whether Canonizado’s
appointment to and acceptance of the position of
Inspector General should result in an abandonment of his
claim for reinstatement to the NAPOLCOM. It is a well-
settled rule that he who, while occupying one office,
accepts another incompatible with the first, ipso facto
vacates the first office and his title is thereby terminated
without any other act or proceeding (Mechem, A Treatise
on the Law of Public Offices and Officers, 1890 edition, p.
267). Public policy considerations dictate against allowing
the same individual to perform inconsistent and
incompatible duties (Ibid.). The incompatibility
contemplated is not the mere physical impossibility of one
person’s performing the duties of the two offices due to a
lack of time or the inability to be in two places at the same
moment, but that which proceeds from the nature and
relations of the two positions to each other as to give rise
to contrariety and antagonism should one person attempt
to faithfully and impartially discharge the duties of one
toward the incumbent of the other. (Ibid.)
There is no question that the positions of
NAPOLCOM Commissioner and Inspector General of the
IAS are incompatible with each other. As pointed out by
respondents, RA 8551 prohibits any personnel of the IAS
from sitting in a committee charged with the task of
deliberating on the appointment, promotion, or
assignment of any PNP personnel, whereas the
NAPOLCOM has the power of control and supervision
over the PNP. However, the rule on incompatibility of
duties will not apply to the case at bar because at no
point did Canonizado discharge the functions of the two
offices simultaneously. Canonizado was forced out of
his first office by the enactment of Section 8 of RA 8551.
Thus, when Canonizado was appointed as Inspector
General x x x he had ceased to discharge his official
functions as NAPOLCOM Commissioner. X x x. Thus, to
reiterate, the incompatibility of duties rule never had a
chance to come into play for petitioner never occupied
the two positions, of Commissioner and Inspector
General, nor discharged their respective functions,
concurrently.
Xxx
As in the Tan (Tan v. Gimenez, 107 Phil. 17 [1960]) and
Gonzales (Gonzales v. Hernandez, 2 SCRA 228 [1961])
cases, Canonizado was compelled to leave his position
as Commissioner, not by an erroneous decision, but by
an unconstitutional provision of law. Canonizado, like
the petitioners in the above mentioned cases, held a
second office during the period that his appeal was
pending. As stated in the Comment filed by petitioners,
Canonizado was impelled to accept this subsequent
position by a desire to continue serving the country, in
whatever capacity. Surely, this selfless and noble
aspiration deserves to be placed on at least equal
footing with the worthy goal of providing for oneself and
one’s family, either of which are sufficient to justify
Canonizado’s acceptance of the position of Inspector
General. A Contrary ruling would deprive petitioner of
his right to live, which contemplates not only a right to
earn a living, as held in previous cases, but also a right
to lead a useful and productive life. Furthermore,
prohibiting Canonizado from accepting a second position
during the pendency of his petition would be to unjustly
compel him to bear the consequences of an
unconstitutional act which under no circumstance can be
attributed to him. However, before Canonizado can re-
assume his post as Commissioner, he should first resign
as Inspector General of the IAS-PNP. (Canonizado v.
Aguirre, 351 SCRA 659, Feb. 15, 2001, En Banc
[Gonzaga-Reyes])
296. May the appointment of a person assuming a
position in the civil service under a completed
appointment be validly recalled or revoked?
Held: It has been held that upon the issuance of an
appointment and the appointee’s assumption of the
position in the civil service, “he acquires a legal right
which cannot be taken away either by revocation of the
appointment or by removal except for cause and with
previous notice and hearing.” (Mauna v. Civil Service
Commission, 232 SCRA 388, 398 [1994]) Moreover,
it is well-settled that the person assuming a position in
the civil service under a completed appointment acquires
a legal, not just an equitable, right to the position. This
right is protected not only by statute, but by the
Constitution as well, which right cannot be taken away by
either revocation of the appointment, or by removal,
unless there is valid cause to do so, provided that there is
previous notice and hearing. (Aquino v. Civil Service
Commission, 208 SCRA 240, 248 [1992])
Petitioner admits that his very first official act upon
assuming the position of town mayor was to issue Office
Order No. 95-01 which recalled the appointments of the
private respondents. There was no previous notice, much
less a hearing accorded to the latter. Clearly, it was
petitioner who acted in undue haste to remove the private
respondents without regard for the simple requirements
of due process of law. While he argues that the
appointing power has the sole authority to revoke said
appointments, there is no debate that he does not have
blanket authority to do so. Neither can he question the
CSC’s jurisdiction to affirm or revoke the recall.
Rule V, Section 9 of the Omnibus Implementing
Regulations of the Revised Administrative Code
specifically provides that “an appointment accepted by
the appointee cannot be withdrawn or revoked by the
appointing authority and shall remain in force and in
effect until disapproved by the Commission.” Thus, it is
the CSC that is authorized to recall an appointment
initially approved, but only when such appointment and
approval are proven to be in disregard of applicable
provisions of the civil service law and regulations
(Debulgado v. Civil Service Commission, 237 SCRA
184, 200 [1994]).
Moreover, Section 10 of the same rule provides:
Sec. 10. An appointment issued in accordance with
pertinent laws and rules shall take effect immediately
upon its issuance by the appointing authority, and if the
appointee has assumed the duties of the position, he shall
be entitled to receive his salary at once without awaiting
the approval of his appointment by the Commission. The
appointment shall remain effective until disapproved by
the Commission. In no case shall an appointment take
effect earlier than the date of its issuance.
Section 20 of Rule VI also provides:
Sec. 20. Notwithstanding the initial approval of an
appointment, the same may be recalled on any of the
following grounds:
(e) Non-compliance with the
procedures/criteria provided in the agency’s Merit
Promotion Plan;
(f) Failure to pass through the agency’s
Selection/Promotion Board;
(g) Violation of the existing collective
agreement between management and employees relative
to promotion; or
(h) Violation of other existing civil
service law, rules and regulations.
Accordingly, the appointments of the private respondents
may only be recalled on the above-cited grounds. And
yet, the only reason advanced by the petitioner to justify
the recall was that these were “midnight appointments.”
The CSC correctly ruled, however, that the constitutional
prohibition on so-called “midnight appointments,”
specifically those made within two (2) months
immediately prior to the next presidential elections,
applies only to the President or Acting President. (De
Rama v. Court of Appeals, 353 SCRA 94, Feb. 28,
2001, En Banc [Ynares-Santiago])
297. When may unconsented transfers be considered
anathema to security of tenure?
Held: As held in Sta. Maria v. Lopez (31 SCRA 637, 653
citing Ibanez v. Commission on Elections, L-26558, April
27, 1967, 19 SCRA 1002, 1012 and Section 12 of the Tax
Code).
"x x x the rule that outlaws unconsented transfers as
anathema to security of tenure applies only to an officer
who is appointed - not merely assigned - to a particular
station. Such a rule does not pr[o]scribe a transfer
carried out under a specific statute that empowers the
head of an agency to periodically reassign the employees
and officers in order to improve the service of the agency.
x x x"
The guarantee of security of tenure under the
Constitution is not a guarantee of perpetual employment.
It only means that an employee cannot be dismissed (or
transferred) from the service for causes other than those
provided by law and after due process is accorded the
employee. What it seeks to prevent is capricious exercise
of the power to dismiss. But where it is the law-making
authority itself which furnishes the ground for the transfer
of a class of employees, no such capriciousness can be
raised for so long as the remedy proposed to cure a
perceived evil is germane to the purposes of the law.
(Agripino A. De Guzman, Jr., et al. v. COMELEC,
G.R. No. 129118, July 19, 2000, En Banc
[Purisima])
298. Discuss Abolition of Office?
Held: The creation and abolition of public offices is
primarily a legislative function. It is acknowledged that
Congress may abolish any office it creates without
impairing the officer's right to continue in the position held
and that such power may be exercised for various
reasons, such as the lack of funds or in the interest of
economy. However, in order for the abolition to be valid,
it must be made in good faith, not for political or personal
reasons, or in order to circumvent the constitutional
security of tenure of civil service employees.
An abolition of office connotes an intention to do away
with such office wholly and permanently, as the word
"abolished" denotes. Where one office is abolished and
replaced with another office vested with similar functions,
the abolition is a legal nullity. Thus, in U.P. Board of
Regents v. Rasul (200 SCRA 685 [1991]) we said:
It is true that a valid and bona fide abolition of an office
denies to the incumbent the right to security of tenure
(De la Llana v. Alba, 112 SCRA 294 [1982]). However, in
this case, the renaming and restructuring of the PGH and
its component units cannot give rise to a valid and bona
fide abolition of the position of PGH Director. This is
because where the abolished office and the offices
created in its place have similar functions, the abolition
lacks good faith (Jose L. Guerrero v. Hon. Antonio V.
Arizabal, G.R. No. 81928, June 4, 1990, 186 SCRA 108
[1990]). We hereby apply the principle enunciated in
Cezar Z. Dario v. Hon. Salvador M. Mison (176 SCRA 84
[1989]) that abolition which merely changes the
nomenclature of positions is invalid and does not result in
the removal of the incumbent.
The above notwithstanding, and assuming that the
abolition of the position of the PGH Director and the
creation of a UP-PGH Medical Center Director are valid,
the removal of the incumbent is still not justified for the
reason that the duties and functions of the two positions
are basically the same.
This was also our ruling in Guerrero v. Arizabal (186 SCRA
108 [1990]), wherein we declared that the substantial
identity in the functions between the two offices was
indicia of bad faith in the removal of petitioner pursuant
to a reorganization. (Alexis C. Canonizado, et al. v.
Hon. Alexander P. Aguirre, et al., G.R. No. 133132,
Jan. 25, 2000, En Banc [Gonzaga-Reyes])
299. What is reorganization? When is it valid? When
is it invalid?
Held: 1. Reorganization takes place when there is an
alteration of the existing structure of government offices
or units therein, including the lines of control, authority
and responsibility between them. It involves a reduction
of personnel, consolidation of offices, or abolition thereof
by reason of economy or redundancy of functions.
Naturally, it may result in the loss of one's position
through removal or abolition of an office. However, for a
reorganization to be valid, it must also pass the test of
good faith, laid down in Dario v. Mison (176 SCRA 84
[1989]):
x x x As a general rule, a reorganization is carried out in
"good faith" if it is for the purpose of economy or to make
bureaucracy more efficient. In that event, no dismissal
(in case of dismissal) or separation actually occurs
because the position itself ceases to exist. And in that
case, security of tenure would not be a Chinese wall. Be
that as it may, if the "abolition" which is nothing else but
a separation or removal, is done for political reasons or
purposely to defeat security of tenure, or otherwise not in
good faith, no valid "abolition" takes place and whatever
"abolition" is done, is void ab initio. There is an invalid
"abolition" as where there is merely a change of
nomenclature of positions, or where claims of economy
are belied by the existence of ample funds.
(Alexis C. Canonizado, et al. v. Hon. Alexander P.
Aguirre, et al., G.R. No. 133132, Jan. 25, 2000, En
Banc [Gonzaga-Reyes])
2. While the President’s power to reorganize can
not be denied, this does not mean however that the
reorganization itself is properly made in accordance with
law. Well-settled is the rule that reorganization is
regarded as valid provided it is pursued in good faith.
Thus, in Dario v. Mison, this Court has had the occasion
to clarify that:
“As a general rule, a reorganization is carried out in ‘good
faith’ if it is for the purpose of economy or to make the
bureaucracy more efficient. In that event no dismissal or
separation actually occurs because the position itself
ceases to exist. And in that case the security of tenure
would not be a Chinese wall. Be that as it may, if the
abolition which is nothing else but a separation or
removal, is done for political reasons or purposely to
defeat security of tenure, or otherwise not in good faith,
no valid abolition takes place and whatever abolition done
is void ab initio. There is an invalid abolition as where
there is merely a change of nomenclature of positions or
where claims of economy are belied by the existence of
ample funds.” (176 SCRA 84)
(Larin v. Executive Secretary, 280 SCRA 713, Oct.
16, 1997)
300. What are the circumstances evidencing bad faith
in the removal of employees as a result of reorganization
and which may give rise to a claim for reinstatement or
reappointment)?
Held:

1) Where there is a significant increase in the
number of positions in the new staffing pattern of the
department or agency concerned;
2) Where an office is abolished and another
performing substantially the same functions is created;
3) Where incumbents are replaced by those less
qualified in terms of status of appointment, performance
and merit;
4) Where there is a reclassification of offices in
the department or agency concerned and the reclassified
offices perform substantially the same functions as the
original offices;
5) Where the removal violates the order of
separation provided in Section 3 hereof.
(Sec. 2, R.A. No. 6656; Larin v. Executive
Secretary, 280 SCRA 713, Oct. 16, 1997)
ELECTION LAWS
301. Discuss the Right of Suffrage, and its substantive
and procedural requirements.
Held: In a representative democracy such as
ours, the right of suffrage, although accorded a prime
niche in the hierarchy of rights embodied in the
fundamental law, ought to be exercised within the
proper bounds and framework of the Constitution and
must properly yield to pertinent laws skillfully enacted by
the Legislature, which statutes for all intents and
purposes, are crafted to effectively insulate such so
cherished right from ravishment and preserve the
democratic institutions our people have, for so long,
guarded against the spoils of opportunism, debauchery
and abuse.
To be sure, the right of suffrage x x x is not at all
absolute. Needless to say, the exercise of the right of
suffrage, as in the enjoyment of all other rights, is subject
to existing substantive and procedural requirements
embodied in our Constitution, statute books and other
repositories of law. Thus, as to the substantive aspect,
Section 1, Article V of the Constitution provides:
“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 LAST
SIX MONTHS IMMEDIATELY PRECEDING THE ELECTION.
NO LITERACY, PROPERTY, OR OTHER SUBSTANTIVE
REQUIREMENT SHALL BE IMPOSED ON THE EXERCISE
OF SUFFRAGE.”
As to the procedural limitation, the right of a
citizen to vote is necessarily conditioned upon certain
procedural requirements he must undergo: among
others, the process of registration. Specifically, a citizen
in order to be qualified to exercise his right to vote, in
addition to the minimum requirements set by the
fundamental charter, is obliged by law to register, at
present, under the provisions of Republic Act No. 8189,
otherwise known as the “Voter’s Registration Act of
1996.” (Akbayan-Youth v. COMELEC, 355 SCRA
318, Mar. 26, 2001, En Banc [Buena])
302. Discuss the reason behind the principle of ballot
secrecy. May the conduct of exit polls transgress the
sanctity and the secrecy of the ballot to justify its
prohibition?
Held: The reason behind the principle of ballot secrecy
is to avoid vote buying through voter identification. Thus,
voters are prohibited from exhibiting the contents of their
official ballots to other persons, from making copies
thereof, or from putting distinguishing marks thereon so
as to be identified. Also proscribed is finding out the
contents of the ballots cast by particular voters or
disclosing those of disabled or illiterate voters who have
been assisted. Clearly, what is forbidden is the
association of voters with their respective votes, for the
purpose of assuring that the votes have been cast in
accordance with the instructions of a third party. This
result cannot, however, be achieved merely through the
voters’ verbal and confidential disclosure to a pollster of
whom they have voted for.
In exit polls, the contents of the official ballot are not
actually exposed. Furthermore, the revelation of whom
an elector has voted for is not compulsory, but voluntary.
Voters may also choose not to reveal their identities.
Indeed, narrowly tailored countermeasures may be
prescribed by the Comelec, so as to minimize or suppress
incidental problems in the conduct of exit polls, without
transgressing the fundamental rights of our people.
(ABS-CBN Broadcasting Corporation v. COMELEC,
G.R. No. 133486, Jan. 28, 2000, En Banc
[Panganiban])
303. Discuss the meaning and purpose of residency
requirement in Election Law.
Held: 1. The meaning and purpose of the residency
requirement were explained recently in our decision in
Aquino v. Comelec (248 SCRA 400, 420-421 [1995]), as
follows:
X x x [T]he place “where a party actually or constructively
has his permanent home,” where he, no matter where he
may be found at any given time, eventually intends to
return and remain, i.e., his domicile, is that to which the
Constitution refers when it speaks of residence for the
purposes of election law. The manifest purpose of this
deviation from the usual conceptions of residency in law
as explained in Gallego v. Vera is “to exclude strangers or
newcomers unfamiliar with the conditions and needs of
the community” from taking advantage of favorable
circumstances existing in that community for electoral
gain. While there is nothing wrong with the practice of
establishing residence in a given area for meeting election
law requirements, this nonetheless defeats the essence of
representation, which is to place through the assent of
voters those most cognizant and sensitive to the needs of
a particular district, if a candidate falls short of the period
of residency mandated by law for him to qualify. That
purpose could be obviously best met by individuals who
have either had actual residence in the area for a given
period or who have been domiciled in the same area
either by origin or by choice.
(Marcita Mamba Perez v. COMELEC, G.R. No.
133944, Oct. 28, 1999, En Banc [Mendoza])
2. The Constitution and the law requires
residence as a qualification for seeking and holding
elective public office, in order to give candidates the
opportunity to be familiar with the needs, difficulties,
aspirations, potentials for growth and all matters vital to
the welfare of their constituencies; likewise, it enables the
electorate to evaluate the office seekers’ qualifications
and fitness for the job they aspire for. Inasmuch as
Vicente Y. Emano has proven that he, together with his
family, (1) had actually resided in a house he bought in
1973 in Cagayan de Oro City; (2) had actually held office
there during his three terms as provincial governor of
Misamis Oriental, the provincial capitol being located
therein; and (3) has registered as voter in the city during
the period required by law, he could not be deemed “a
stranger or newcomer” when he ran for and was
overwhelmingly voted as city mayor. Election laws must
be liberally construed to give effect to the popular
mandate. (Torayno, Sr. v. COMELEC, 337 SCRA 574,
Aug. 9, 2000, En Banc [Panganiban])
3. Generally, in requiring candidates to have a minimum
period of residence in the area in which they seek to be
elected, the Constitution or the law intends to prevent the
possibility of a “stranger or newcomer unacquainted with
the conditions and needs of a community and not
identified with the latter from [seeking] an elective office
to serve that community.” Such provision is aimed at
excluding outsiders “from taking advantage of favorable
circumstances existing in that community for electoral
gain.” Establishing residence in a community merely to
meet an election law requirement defeats the purpose of
representation: to elect through the assent of voters
those most cognizant and sensitive to the needs of the
community. This purpose is “best met by individuals who
have either had actual residence in the area for a given
period or who have been domiciled in the same area
either by origin or by choice.” (Torayno, Sr. v.
COMELEC, 337 SCRA 574, Aug. 9, 2000, En Banc
[Panganiban])
304. Does the fact that a person is registered as a
voter in one district proof that he is not domiciled in
another district?
Held: The fact that a person is registered as a voter in
one district is not proof that he is not domiciled in another
district. Thus, in Faypon v. Quirino (96 Phil. 294 [1954]),
this Court held that the registration of a voter in a place
other than his residence of origin is not sufficient to
consider him to have abandoned or lost his residence.
(Marcita Mamba Perez v. COMELEC, G.R. No.
133944, Oct. 28, 1999, En Banc [Mendoza])
305. Discuss the nature of Voter’s Registration.
Held: Stated differently, the act of registration
is an indispensable precondition to the right of suffrage.
For registration is part and parcel of the right to vote and
an indispensable element in the election process. Thus,
x x x registration cannot and should not be denigrated to
the lowly stature of a mere statutory requirement.
Proceeding from the significance of registration as a
necessary requisite to the right to vote, the State
undoubtedly, in the exercise of its inherent police power,
may then enact laws to safeguard and regulate the act of
voter’s registration for the ultimate purpose of conducting
honest, orderly and peaceful election, to the incidental yet
generally important end, that even pre-election activities
could be performed by the duly constituted authorities in
a realistic and orderly manner – one which is not
indifferent and so far removed from the pressing order of
the day and the prevalent circumstances of the times.
(Akbayan-Youth v. COMELEC, 355 SCRA 318, Mar.
26, 2001, En Banc [Buena])
306. What is the Lone Candidate Law? What are its
salient provisions?
Answer: The Lone Candidate Law is Republic Act No.
8295, enacted on June 6, 1997. Section 2 thereof
provides that “Upon the expiration of the deadline for the
filing of the certificate of candidacy in a special election
called to fill a vacancy in an elective position other than
for President and Vice-President, when there is only one
(1) qualified candidate for such position, the lone
candidate shall be proclaimed elected to the position by
proper proclaiming body of the Commission on Elections
without holding the special election upon certification by
the Commission on Elections that he is the only candidate
for the office and is thereby deemed elected.”
Section 3 thereof provides that “the lone candidate so
proclaimed shall assume office not earlier than the
scheduled election day, in the absence of any lawful
ground to deny due course or cancel the certificate of
candidacy in order to prevent such proclamation, as
provided for under Sections 69 and 78 of Batas Pambansa
Bilang 881 also known as the Omnibus Election Code.”

307. Who are disqualified to run in a special election
under the Lone Candidate Law?
Answer: Section 4 of the Lone Candidate Law provides
that “In addition to the disqualifications mentioned in
Sections 12 and 68 of the Omnibus Election Code and
Section 40 of Republic Act No. 7160, otherwise known as
the Local Government Code, whenever the evidence of
guilt is strong, the following persons are disqualified to
run in a special election called to fill the vacancy in an
elective office, to wit:
a) Any elective official who has resigned from
his office by accepting an appointive office or for
whatever reason which he previously occupied but has
caused to become vacant due to his resignation; and
b) Any person who, directly or indirectly,
coerces, bribes, threatens, harasses, intimidates or
actually causes, inflicts or produces any violence, injury,
punishment, torture, damage, loss or disadvantage to any
person or persons aspiring to become a candidate or that
of the immediate member of his family, his honor or
property that is meant to eliminate all other potential
candidate.”
308. What is the purpose of the law in requiring the
filing of certificate of candidacy and in fixing the time limit
therefor?
Held: The evident purpose of the law in requiring the
filing of certificate of candidacy and in fixing the time limit
therefor are: (a) to enable the voters to know, at least
sixty days before the regular election, the candidates
among whom they are to make the choice, and (b) to
avoid confusion and inconvenience in the tabulation of the
votes cast. For if the law did not confine the choice or
election by the voters to the duly registered candidates,
there might be as many persons voted for as there are
voters, and votes might be cast even for unknown or
fictitious persons as a mark to identify the votes in favor
of a candidate for another office in the same election.
(Miranda v. Abaya, G.R. No. 136351, July 28, 1999)
309. May a disqualified candidate and whose
certificate of candidacy was denied due course and/or
canceled by the Comelec be validly substituted?
Held: Even on the most basic and fundamental
principles, it is readily understood that the concept of a
substitute presupposes the existence of the person to be
substituted, for how can a person take the place of
somebody who does not exist or who never was. The
Court has no other choice but to rule that in all instances
enumerated in Section 77 of the Omnibus Election Code,
the existence of a valid certificate of candidacy seasonably
filed is a requisite sine qua non.
All told, a disqualified candidate may only be substituted
if he had a valid certificate of candidacy in the first place
because, if the disqualified candidate did not have a valid
and seasonably filed certificate of candidacy, he is and
was not a candidate at all. If a person was not a
candidate, he cannot be substituted under Section 77 of
the Code. (Miranda v. Abaya, G.R. No. 136351, July
28, 1999, en Banc [Melo])
310. Should the votes cast for the substituted
candidate be considered votes for the substitute
candidate?
Answer: Republic Act No. 9006, otherwise known as
the Fair Election Act, provides in Section 12 thereof: “In
case of valid substitutions after the official ballots have
been printed, the votes cast for the substituted
candidates shall be considered as stray votes but shall not
invalidate the whole ballot. For this purpose, the official
ballots shall provide spaces where the voters may write
the name of the substitute candidates if they are voting
for the latter: Provided, however, That if the substitute
candidate is of the same family name, this provision shall
not apply.”
311. What is the effect of the filing of certificate of
candidacy by elective officials?
Answer: COMELEC Resolution No. 3636,
promulgated March 1, 2001, implementing the Fair
Election Act (R.A. No. 9006) provides in Section 26
thereof: “any elective official, whether national or local,
who has filed a certificate of candidacy for the same or
any other office shall not be considered resigned from his
office.”
Note that Section 67 of the Omnibus Election Code and
the first proviso in the third paragraph of Section 11 of
Republic Act No. 8436 which modified said Section 67,
were expressly repealed and rendered ineffective,
respectively, by Section 14 (Repealing Clause) of The Fair
Election Act (R.A. No. 9006).
312. What kind of “material misrepresentation” is
contemplated by Section 78 of the Omnibus Election Code
as a ground for disqualification of a candidate? Does it
include the use of surname?
Held: Therefore, it may be concluded that the material
misrepresentation contemplated by Section 78 of the
(Omnibus Election) Code refers to qualifications for
elective office. This conclusion is strengthened by the fact
that the consequences imposed upon a candidate guilty
of having made a false representation in his certificate of
candidacy are grave – to prevent the candidate from
running or, if elected, from serving, or to prosecute him
for violation of the election laws. It could not have been
the intention of the law to deprive a person of such a basic
and substantial political right to be voted for a public
office upon just any innocuous mistake.
[A]side from the requirement of materiality, a false
representation under Section 78 must consist of a
“deliberate attempt to mislead, misinform, or hide a fact
which would otherwise render a candidate ineligible.” In
other words, it must be made with an intention to deceive
the electorate as to one’s qualifications for public office.
The use of a surname, when not intended to mislead or
deceive the public as to one’s identity, is not within the
scope of the provision. (Victorino Salcedo II v.
COMELEC, G.R. No. 135886, Aug. 16, 1999, En
Banc [Gonzaga-Reyes])
313. Who has authority to declare failure of elections
and the calling of special election? What are the three
instances where a failure of election may be declared?
Held: The COMELEC’s authority to declare failure of
elections is provided in our election laws. Section 4 of RA
7166 provides that the Comelec sitting en banc by a
majority vote of its members may decide, among others,
the declaration of failure of election and the calling of
special election as provided in Section 6 of the Omnibus
Election Code. X x x
There are three instances where a failure of election may
be declared, namely, (a) the election in any polling place
has not been held on the date fixed on account of force
majeure, violence, terrorism, fraud or other analogous
causes; (b) the election in any polling place has been
suspended before the hour fixed by law for the closing of
the voting on account of force majeure, violence,
terrorism, fraud or other analogous causes; or (c) after
the voting and during the preparation and transmission of
the election returns or in the custody or canvass thereof,
such election results in a failure to elect on account of
force majeure, violence, terrorism, fraud or other
analogous causes. In these instances, there is a resulting
failure to elect. This is obvious in the first two scenarios,
where the election was not held and where the election
was suspended. As to the third scenario, where the
preparation and the transmission of the election returns
give rise to the consequence of failure to elect, it must x
x x, be interpreted to mean that nobody emerged as a
winner. (Banaga, Jr. v. COMELEC, 336 SCRA 701,
July 31, 2000, En Banc [Quisumbing])
314. What are the two conditions that must concur
before the COMELEC can act on a verified petition seeking
to declare a afailure of election?
Held: Before the COMELEC can act on a verified petition
seeking to declare a failure of election two conditions
must concur, namely: (1) no voting took place in the
precinct or precincts on the date fixed by law, or even if
there was voting, the election resulted in a failure to elect;
and (2) the votes not cast would have affected the result
of the election. Note that the cause of such failure of
election could only be any of the following: force majeure,
violence, terrorism, fraud or other analogous causes.
Thus, in Banaga, Jr. v. COMELEC (336 SCRA 701, July
31, 2000, En Banc [Quisumbing]), the SC held:
“We have painstakingly examined the petition filed by
petitioner Banaga before the Comelec. But we found that
petitioner did not allege at all that elections were either
not held or suspended. Neither did he aver that although
there was voting, nobody was elected. On the contrary,
he conceded that an election took place for the office of
vice-mayor of Paranaque City, and that private
respondent was, in fact, proclaimed elected to that post.
While petitioner contends that the election was tainted
with widespread anomalies, it must be noted that to
warrant a declaration of failure of election the commission
of fraud must be such that it prevented or suspended the
holding of an election, or marred fatally the preparation
and transmission, custody and canvass of the election
returns. These essential facts ought to have been alleged
clearly by the petitioner below, but he did not.”
315. Cite instances when Comelec may or may not
validly declare failure of elections.
Held: In Mitmug v. COMELEC (230 SCRA 54 [1994]),
petitioner instituted with the COMELEC an action to
declare failure of election in forty-nine precincts where
less than a quarter of the electorate were able to cast
their votes. He also lodged an election protest with the
Regional Trial Court disputing the result of the election in
all precincts in his municipality. The Comelec denied motu
proprio and without due notice and hearing the petition
to declare failure of election despite petitioner’s argument
that he has meritorious grounds in support thereto, that
is, massive disenfranchisement of voters due to terrorism.
On review, we ruled that the Comelec did not gravely
abuse its discretion in denying the petition. It was not
proven that no actual voting took place. Neither was it
shown that even if there was voting, the results thereon
would be tantamount to failure to elect. Considering that
there is no concurrence of the conditions seeking to
declare failure of election, there is no longer need to
receive evidence on alleged election irregularities.
In Sardea v. COMELEC (225 SCRA 374 [1993]), all
election materials and paraphernalia with the municipal
board of canvassers were destroyed by the sympathizers
of the losing mayoralty candidate. The board then
decided to use the copies of election returns furnished to
the municipal trial court. Petitioner therein filed a petition
to stop the proceedings of the board of canvassers on the
ground that it had no authority to use said election returns
obtained from the municipal trial court. The petition was
denied. Next, he filed a petition assailing the composition
of the board of canvassers. Despite that petition, the
board of canvassers proclaimed the winning candidates.
Later on, petitioner filed a petition to declare a failure of
election alleging that the attendant facts would justify
declaration of such failure. On review, we ruled that
petitioner’s first two actions involved pre-proclamation
controversies which can no longer be entertained after
the winning candidates have been proclaimed. Regarding
the petition to declare a failure of election, we held that
the destruction and loss of copies of election returns
intended for the municipal board of canvassers on
account of violence is not one of the causes that would
warrant the declaration of failure of election. The reason
is that voting actually took place as scheduled and other
valid election returns still existed. Moreover, the
destruction or loss did not affect the result of the election.
We also declared that there is failure of elections only
when the will of the electorate has been muted and
cannot be ascertained. If the will of the people is
determinable, the same must as far as possible be
respected.
Xxx
In Loong v. COMELEC (257 SCRA 1 [1996]), the petition
for annulment of election results or to declare failure of
elections in Parang, Sulu, on the ground of statistical
improbability and massive fraud was granted by the
COMELEC. Even before the technical examination of
election documents was conducted, the Comelec already
observed badges of fraud just by looking at the election
results in Parang. Nevertheless, the Comelec dismissed
the petition for annulment of election results or to declare
failure of elections in the municipalities of Tapul, Panglima
Estino, Pata, Siasi and Kalinggalang Calauag. The
COMELEC dismissed the latter action on ground of
untimeliness of the petition, despite a finding that the
same badges of fraud evident from the results of the
election based on the certificates of canvass of votes in
Parang, are also evident in the election results of the five
mentioned municipalities. We ruled that Comelec
committed grave abuse of discretion in dismissing the
petition as there is no law which provides for a
reglementary period to file annulment of elections when
there is yet no proclamation. The election resulted in a
failure to elect on account of fraud. Accordingly, we
ordered the Comelec to reinstate the aforesaid petition.
Those circumstances, however, are not present in this
case, so that reliance on Loong by petitioner Banaga is
misplaced. (Banaga, Jr. v. COMELEC, 336 SCRA 701,
July 31, 2000, En Banc [Quisumbing])
316. What acts of a Division of the COMELEC may be
subject of a motion for reconsideration of the COMELEC
en banc?
Held: Section 5, Rule 19 of the COMELEC Rules of
Procedure, provides:
“SEC. 5. How Motion for Reconsideration Disposed of. -
Upon the filing of a motion to reconsider a decision,
resolution, order or ruling of a Division, the Clerk of Court
concerned shall, within twenty-four (24) hours from the
filing thereof, notify the presiding Commissioner. The
latter shall within two (2) days thereafter certify the case
to the Commission en banc.”
Under the above-quoted rule, the acts of a
Division that are subject of a motion for reconsideration
must have a character of finality before the same can be
elevated to the COMELEC en banc. The elementary rule
is that an order is final in nature if it completely disposes
of the entire case. But if there is something more to be
done in the case after its issuance, that order is
interlocutory.
As correctly pointed out by public respondent in
its assailed order of November 29, 1999, the October 11,
1999 did not dispose of the case completely as there is
something more to be done which is to decide the election
protest. As such, it is the herein public respondent
(Second Division of the COMELEC) which issued the
interlocutory order of October 11, 1999 that should
resolve petitioner’s motion for reconsideration, not the
COMELEC en banc (Bulaong v. COMELEC, First Division,
220 SCRA 745, 749 [1993]). Accordingly, the applicable
rule on the subject is Section 5(c), Rule 3 of the COMELEC
Rules of Procedure, which states:
“Rule 3, Section 5(c). Any motion to reconsider a
decision, resolution, order or ruling of a Division shall be
resolved by the Commission en banc except motions on
interlocutory orders of the division, which shall be
resolved by the divisions which issued the order.”
That only final orders of a Division may be raised
before the COMELEC en banc is in accordance with Article
IX-C, Section 3 of the Constitution which mandates that
only motions for reconsideration of final decisions shall be
decided by the Commission on Elections en banc, thus:
“Sec. 3. The Commission on Elections may sit en banc or in
two divisions, and shall promulgate its rules of procedure in
order to expedite disposition of election cases, including pre-
proclamation controversies. All such election cases shall be
heard and decided in division, provided that motions for
reconsideration of decisions shall be decided by the
Commission en banc.”
It bears stressing that under this constitutional
provision, the COMELEC en banc shall decide motions for
reconsideration only of “decisions” of a Division, meaning
those acts of final character. Clearly, the assailed order
denying petitioner's demurrer to evidence, being
interlocutory, may not, be resolved by the COMELEC en
banc (Ambil, Jr. v. Commission on elections, G.R. No.
143398, Oct. 25, 2000, 344 SCRA 358). (Gementiza v.
Commission on Elections, 353 SCRA 724, March 6,
2001, En Banc [Sandoval-Gutierrez])
317. Is a petition to declare failure of election different
from a petition to annul the election results?
Held: A prayer to declare failure of elections and a prayer
to annul the election results x x x are actually of the same
nature. Whether an action is for declaration of failure of
elections or for annulment of election results, based on
allegations of fraud, terrorism, violence or analogous, the
Omnibus Election Code denominates them similarly.
(Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31,
2000, En Banc [Quisumbing])
318. What conditions must concur before the Comelec
can act on a verified petition seeking to declare a failure
of election? Is low turn-out of voters enough basis to
grant the petition?
Held: Before COMELEC can act on a verified petition
seeking to declare a failure of election, two (2) conditions
must concur: first, no voting has taken place in the
precinct or precincts on the date fixed by law or, even if
there was voting, the election nevertheless results in
failure to elect; and, second, the votes not cast would
affect the result of the election.
There can be failure of election in a political unit only if
the will of the majority has been defiled and cannot be
ascertained. But, if it can be determined, it must be
accorded respect. After all, there is no provision in our
election laws which requires that a majority of registered
voters must cast their votes. All the law requires is that
a winning candidate must be elected by a plurality of valid
votes, regardless of the actual number of ballots cast.
Thus, even if less than 25% of the electorate in the
questioned precincts cast their votes, the same must still
be respected. (Mitmug v. COMELEC, 230 SCRA 54,
Feb. 10, 1994, En Banc [Bellosillo])
319. Distinguish a petition to declare failure of
elections from an election protest.
Held: While petitioner may have intended to institute an
election protest by praying that said action may also be
considered an election protest, in our view, petitioner’s
action is a petition to declare a failure of elections or annul
election results. It is not an election protest.
First, his petition before the Comelec was instituted
pursuant to Section 4 of Republic Act No. 7166 in relation
to Section 6 of the Omnibus Election Code. Section 4 of
RA 7166 refers to “postponement, failure of election and
special elections” while Section 6 of the Omnibus Election
Code relates to “failure of election.” It is simply captioned
as “Petition to Declare Failure of Elections and/or For
Annulment of Elections.”
Second, an election protest is an ordinary action while a
petition to declare a failure of elections is a special action
under the 1993 Comelec Rules of Procedure as amended.
An election protest is governed by Rule 20 on ordinary
actions, while a petition to declare failure of elections is
covered by Rule 26 under special actions.
In this case, petitioner filed his petition as a special action
and paid the corresponding fee therefor. Thus, the
petition was docketed as SPA-98-383. This conforms to
petitioner’s categorization of his petition as one to declare
a failure of elections or annul election results. In contrast,
an election protest is assigned a docket number starting
with “EPC,” meaning election protest case.
Third, petitioner did not comply with the requirements for
filing an election protest. He failed to pay the required
filing fee and cash deposits for an election protest. Failure
to pay filing fees will not vest the election tribunal
jurisdiction over the case. Such procedural lapse on the
part of a petitioner would clearly warrant the outright
dismissal of his action.
Fourth, an en banc decision of Comelec in an ordinary
action becomes final and executory after thirty (30) days
from its promulgation, while an en banc decision in a
special action becomes final and executory after five (5)
days from promulgation, unless restrained by the
Supreme Court (Comelec Rules of Procedure, Rule 18,
Section 13 [a], [b]). For that reason, a petition cannot be
treated as both an election protest and a petition to
declare failure of elections.
Fifth, the allegations in the petition decisively determine
its nature. Petitioner alleged that the local elections for
the office of vice-mayor in Paranaque City held on May
11, 1998, denigrates the true will of the people as it was
marred with widespread anomalies on account of vote
buying, flying voters and glaring discrepancies in the
election returns. He averred that those incidents warrant
the declaration of a failure of elections.
Given these circumstances, public respondent cannot be
said to have gravely erred in treating petitioner’s action
as a petition to declare failure of elections or to annul
election results. (Banaga, Jr. v. COMELEC, 336 SCRA
701, July 31, 2000, En Banc [Quisumbing])
320. What are pre-proclamation cases, and exceptions
thereto? What Court has jurisdiction over pre-
proclamation cases?
Held: As a general rule, candidates and registered
political parties involved in an election are allowed to file
pre-proclamation cases before the Comelec. Pre-
proclamation cases refer to any question pertaining to or
affecting the proceedings of the board of canvassers
which may be raised by any candidate or by any
registered political party or coalition of political parties
before the board or directly with the Commission, or any
matter raised under Sections 233, 234, 235 and 236 in
relation to the preparation, transmission, receipt, custody
and appreciation of election returns (Section 241,
Omnibus Election Code). The Comelec has exclusive
jurisdiction over all pre-proclamation controversies
(Section 242, supra). As an exception, however, to the
general rule, Section 15 of Republic Act 7166 prohibits
candidates in the presidential, vice-presidential, senatorial
and congressional elections from filing pre-proclamation
cases. It states:
“Sec. 15. Pre-Proclamation Cases Not Allowed in
Elections for President, Vice-President, Senator, and
Members of the House of Representatives. - For
purposes of the elections for President, Vice-President,
Senator and Member of the House of Representatives, no
pre-proclamation cases shall be allowed on matters
relating to the preparation, transmission, receipt, custody
and appreciation of election returns or the certificates of
canvass, as the case may be. However, this does not
preclude the authority of the appropriate canvassing body
motu proprio or upon written complaint of an interested
person to correct manifest errors in the certificate of
canvass or election returns before it.”
The prohibition aims to avoid delay in the proclamation of
the winner in the election, which delay might result in a
vacuum in these sensitive posts. The law, nonetheless,
provides an exception to the exception. The second
sentence of Section 15 allows the filing of petitions for
correction of manifest errors in the certificate of canvass
or election returns even in elections for president, vice-
president and members of the House of Representatives
for the simple reason that the correction of manifest error
will not prolong the process of canvassing nor delay the
proclamation of the winner in the election. The rule is
consistent with and complements the authority of the
Comelec under the Constitution to "enforce and
administer all laws and regulations relative to the conduct
of an election, plebiscite, initiative, referendum and recall"
(Section 2[1], Article IX-C, 1987 Constitution) and its
power to "decide, except those involving the right to vote,
all questions affecting elections." (Section 2[3], Article IX-
C, supra) (Federico S. Sandoval v. COMELEC, G.R.
No. 133842, Jan. 26, 2000 [Puno])
321. Who has authority to rule on petitions for
correction of manifest error in the certificate of canvass
or election returns?
Held: The authority to rule on petitions for correction of
manifest error is vested in the Comelec en banc. Section
7 of Rule 27 of the 1993 COMELEC Rules of Procedure
(took effect on February 15, 1993) provides that if the
error is discovered before proclamation, the board of
canvassers may motu proprio, or upon verified petition by
any candidate, political party, organization or coalition of
political parties, after due notice and hearing, correct the
errors committed. The aggrieved party may appeal the
decision of the board to the Commission and said appeal
shall be heard and decided by the Commission en banc.
Section 5, however, of the same rule states that a petition
for correction of manifest error may be filed directly with
the Commission en banc provided that such errors could
not have been discovered during the canvassing despite
the exercise of due diligence and proclamation of the
winning candidate had already been made. (Federico S.
Sandoval v. COMELEC, G.R. No. 133842, Jan. 26,
2000 [Puno])
322. Distinguish Election Protest from Petition for Quo
Warranto.
Held: In Samad v. COMELEC, we explained that a
petition for quo warranto under the Omnibus Election
Code raises in issue the disloyalty or ineligibility of the
winning candidate. It is a proceeding to unseat the
respondent from office but not necessarily to install the
petitioner in his place. An election protest is a contest
between the defeated and winning candidates on the
ground of frauds or irregularities in the casting and
counting of the ballots, or in the preparation of the
returns. It raises the question of who actually obtained
the plurality of the legal votes and therefore is entitled to
hold the office. (Dumayas, Jr. v. COMELEC, G.R. Nos.
141952-53, April 20, 2001, En Banc [Quisumbing])
323. What is a counter-protest? When should it be
filed?
Held: Under the Comelec Rules of Procedure, the
protestee may incorporate in his answer a counter-
protest. It has been said that a counter-protest is
tantamount to a counterclaim in a civil action and may
be presented as a part of the answer within the time he
is required to answer the protest, i.e., within five (5) days
upon receipt of the protest, unless a motion for extension
is granted, in which case it must be filed before the
expiration of the extended time.
As early as in the case of Arrieta v. Rodriguez (57 Phil.
717), the SC had firmly settled the rule that the counter-
protest must be filed within the period provided by law,
otherwise, the forum loses its jurisdiction to entertain the
belatedly filed counter-protest. (Kho v. COMELEC, 279
SCRA 463, Sept. 25, 1997, En Banc [Torres])
324. What is the effect of death of a party in an
election protest? Should it warrant the dismissal of the
protest?
Held: An election protest involves both the private
interests of the rival candidates and the public interest in
the final determination of the real choice of the electorate,
and for this reason, an election contest necessarily
survives the death of the protestant or the protestee. It
is true that a public office is personal to the public officer
and is not a property transmissible to his heirs upon
death, thus, upon the death of the incumbent, no heir of
his may be allowed to continue holding his office in his
place. But while the right to a public office is personal
and exclusive to the public officer, an election protest is
not purely personal and exclusive to the protestant or to
the protestee such that after the death of either would
oust the court of all authority to continue the protest
proceedings. An election contest, after all, involves not
merely conflicting private aspirations but is imbued with
paramount public interests. The death of the protestant
neither constitutes a ground for the dismissal of the
contest nor ousts the trial court of its jurisdiction to decide
the election contest. (De Castro v. COMELEC, 267
SCRA 806, Feb. 7, 1997)
325. Does the fact that one or a few candidates in an
election got zero votes in one or a few precincts
adequately support a finding that the election returns are
statistically improbable?
Held: From experiences in past elections, it is possible
for one candidate or even a few candidates to get zero
votes in one or a few precincts.
Standing alone and without more, the bare fact that a
candidate for public office received zero votes in one or
two precincts can not adequately support a finding that
the subject election returns are statistically improbable. A
no-vote for a particular candidate in election returns is but
one strand in the web of circumstantial evidence that
those election returns were prepared under “duress, force
and intimidation.” In the case of Una Kibad v. Comelec
(23 SCRA 588 [1968]), the SC warned that the doctrine
of statistical improbability must be viewed restrictively,
the utmost care being taken lest in penalizing the
fraudulent and corrupt practices, innocent voters become
disenfranchised, a result which hardly commends itself.
Moreover, the doctrine of statistical improbability involves
a question of fact and a more prudential approach
prohibits its determination ex parte. (Arthur V. Velayo
v. COMELEC, G.R. No. 135613, March 9, 2000, En
Banc [Puno])
326. What Court has jurisdiction over election protests
and quo warranto proceedings involving Sangguniang
Kabataan (SK) elections?
Held: Any contest relating to the election of members of
the Sangguniang Kabataan (including the chairman) –
whether pertaining to their eligibility or the manner of
their election – is cognizable by MTCs, MCTCs, and
MeTCs. Section 6 of Comelec Resolution No. 2824 which
provides that cases involving the eligibility or qualification
of SK candidates shall be decided by the City/Municipal
Election Officer whose decision shall be final, applies only
to proceedings before the election. Before proclamation,
cases concerning eligibility of SK officers and members
are cognizable by the Election Officer. But after the
election and proclamation, the same cases become quo
warranto cases cognizable by MTCs, MCTCs, and MeTCs.
The distinction is based on the principle that it is the
proclamation which marks off the jurisdiction of the courts
from the jurisdiction of election officials.
The case of Jose M. Mercado v. Board of Election
Supervisors (243 SCRA 423, G.R. No. 109713, April 6,
1995), in which this Court ruled that election protests
involving SK elections are to be determined by the Board
of Election Supervisors was decided under the aegis of
Comelec Resolution No. 2499, which took effect on
August 27, 1992. However, Comelec Resolution No.
2824, which took effect on February 6, 1996 and was
passed pursuant to R.A. 7808, in relation to Arts. 252-253
of the Omnibus Election Code, has since transferred the
cognizance of such cases from the Board of Election
Supervisors to the MTCs, MCTCs and MeTCs. Thus, the
doctrine of Mercado is no longer controlling. (Francis
King L. Marquez v. COMELEC, G.R. No. 127318,
Aug. 25, 1999, En Banc [Purisima])
327. What acts of a Division of the COMELEC may be
subject of a motion for reconsideration of the COMELEC
en banc?
Held: Section 5, Rule 19 of the COMELEC Rules of
Procedure, provides:
“SEC. 5. How Motion for Reconsideration Disposed of. -
Upon the filing of a motion to reconsider a decision,
resolution, order or ruling of a Division, the Clerk of Court
concerned shall, within twenty-four (24) hours from the
filing thereof, notify the presiding Commissioner. The
latter shall within two (2) days thereafter certify the case
to the Commission en banc.”
Under the above-quoted rule, the acts of a
Division that are subject of a motion for reconsideration
must have a character of finality before the same can be
elevated to the COMELEC en banc. The elementary rule
is that an order is final in nature if it completely disposes
of the entire case. But if there is something more to be
done in the case after its issuance, that order is
interlocutory.
As correctly pointed out by public respondent in
its assailed order of November 29, 1999, the October 11,
1999 did not dispose of the case completely as there is
something more to be done which is to decide the election
protest. As such, it is the herein public respondent
(Second Division of the COMELEC) which issued the
interlocutory order of October 11, 1999 that should
resolve petitioner’s motion for reconsideration, not the
COMELEC en banc (Bulaong v. COMELEC, First Division,
220 SCRA 745, 749 [1993]). Accordingly, the applicable
rule on the subject is Section 5(c), Rule 3 of the COMELEC
Rules of Procedure, which states:
“Rule 3, Section 5(c). Any motion to reconsider a
decision, resolution, order or ruling of a Division shall be
resolved by the Commission en banc except motions on
interlocutory orders of the division, which shall be
resolved by the divisions which issued the order.”
That only final orders of a Division may be raised
before the COMELEC en banc is in accordance with Article
IX-C, Section 3 of the Constitution which mandates that
only motions for reconsideration of final decisions shall be
decided by the Commission on Elections en banc, thus:
“Sec. 3. The Commission on Elections may sit en banc or in
two divisions, and shall promulgate its rules of procedure in
order to expedite disposition of election cases, including pre-
proclamation controversies. All such election cases shall be
heard and decided in division, provided that motions for
reconsideration of decisions shall be decided by the
Commission en banc.”
It bears stressing that under this constitutional
provision, the COMELEC en banc shall decide motions for
reconsideration only of “decisions” of a Division, meaning
those acts of final character. Clearly, the assailed order
denying petitioner's demurrer to evidence, being
interlocutory, may not, be resolved by the COMELEC en
banc (Ambil, Jr. v. Commission on elections, G.R. No.
143398, Oct. 25, 2000, 344 SCRA 358). (Gementiza v.
Commission on Elections, 353 SCRA 724, March 6,
2001, En Banc [Sandoval-Gutierrez])
THE LAW OF PUBLIC CORPORATIONS
328. What is an autonomous region?
Answer: An autonomous region consists 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 the Constitution
and the national sovereignty as well as the territorial
integrity of the Republic of the Philippines. (Sec. 15, Art.
X, 1987 Constitution)
329. What are administrative regions? Are they
considered territorial and political subdivisions of the
State? Who has the power to create administrative
regions?
Held: Administrative regions are mere groupings of
contiguous provinces for administrative purposes. They
are not territorial and political subdivisions like provinces,
cities, municipalities and barangays. While the power to
merge administrative regions is not expressly provided for
in the Constitution, it is a power which has traditionally
been lodged with the President to facilitate the exercise
of the power of general supervision over local
governments. (Abbas v. COMELEC, 179 SCRA 287,
Nov. 10, 1989, En Banc [Cortes])
329. Is there a conflict between the power of the
President to merge administrative regions with the
constitutional provision requiring a plebiscite in the
merger of local government units?
Held: There is no conflict between the power of the
President to merge administrative regions with the
constitutional provision requiring a plebiscite in the
merger of local government units because the
requirement of a plebiscite in a merger expressly applies
only to provinces, cities, municipalities or barangays, not
to administrative regions. (Abbas v. COMELEC, 179
SCRA 287, Nov. 10, 1989, En Banc [Cortes])
330. What is the Metropolitan Manila Development
Authority (MMDA)? Is it a local government unit or public
corporation endowed with legislative power? May it
validly exercise police power? How is it distinguished
from the former Metro Manila Council (MMC) created
under PD No. 824?
Held: Metropolitan or Metro Manila is a body composed
of several local government units – i.e., twelve (12) cities
and five (5) municipalities x x x. With the passage of
Republic Act No. 7924 in 1995, Metropolitan Manila was
declared as a “special development and administrative
region” and the Administration of “metrowide” basic
services affecting the region placed under “a development
authority” referred to as the MMDA.
The governing board of the MMDA is the Metro Manila
Council. The Council is composed of the mayors of the
component 12 cities and 5 municipalities, the president of
the Metro Manila Vice-Mayors’ League and the president
of the Metro Manila Councilors’ League. The Council is
headed by a Chairman who is appointed by the President
and vested with the rank of cabinet member. As the
policy-making body of the MMDA, the Metro Manila
Council approves metro-wide plans, programs and
projects, and issues the necessary rules and regulations
for the implementation of said plans; it approves the
annual budget of the MMDA and promulgates the rules
and regulations for the delivery of basic services,
collection of service and regulatory fees, fines and
penalties. X x x
Clearly, the scope of the MMDA’s function is limited to the
delivery of the seven (7) basic services. One of these is
transport and traffic management x x x.
It will be noted that the powers of the MMDA are limited
to the following acts: formulation, coordination,
regulation, implementation, preparation, management,
monitoring, setting of policies, installation of a system and
administration. There is no syllable in R.A. No. 7924 that
grants the MMDA police power, let alone legislative
power. Even the Metro Manila Council has not been
delegated any legislative power. Unlike the legislative
bodies of the local government units, there is no provision
in R.A. No. 7924 that empowers the MMDA or its Council
“to enact ordinances, approve resolutions and appropriate
funds for the general welfare” of the inhabitants of Metro
Manila. The MMDA is x x x a “development authority.” It
is an agency created for the purpose of laying down
policies and coordinating with the various national
government agencies, people’s organizations, non-
governmental organizations and the private sector for the
efficient and expeditious delivery of basic services in the
vast metropolitan area. All its functions are administrative
in nature and these are actually summed up in the charter
itself x x x.
Secondly, the MMDA is not the same entity as the MMC in
Sangalang. Although the MMC is the forerunner of the
present MMDA, an examination of Presidential Decree No.
824, the charter of the MMC, shows that the latter
possessed greater powers which were not bestowed on
the present MMDA.
Metropolitan Manila was first created in 1975 by
Presidential Decree No. 824. It comprised the Greater
Manila Area composed of the contiguous four (4) cities of
Manila, Quezon, Pasay and Caloocan, and the thirteen
(13) municipalities x x x. Metropolitan Manila was
created as a response to the finding that the rapid growth
of population and the increase of social and economic
requirements in these areas demand a call for
simultaneous and unified development; that the public
services rendered by the respective local governments
could be administered more efficiently and economically
if integrated under a system of central planning; and this
coordination, “especially in the maintenance of peace and
order and the eradication of social and economic ills that
fanned the flames of rebellion and discontent [were] part
of the reform measures under Martial Law essential to the
safety and security of the State.”
Metropolitan Manila was established as a “public
corporation” x x x.
The administration of Metropolitan Manila was placed
under the Metro Manila Commission (MMC) x x x.
The MMC was the “central government” of Metro Manila
for the purpose of establishing and administering
programs providing services common to the area. As a
“central government” it had the power to levy and collect
taxes and special assessments, the power to charge and
collect fees; the power to appropriate money for its
operation, and at the same time, review appropriations
for the city and municipal units within its jurisdiction. It
was bestowed the power to enact or approve ordinances,
resolutions and fix penalties for violation of such
ordinances and resolutions. It also had the power to
review, amend, revise or repeal all ordinances, resolutions
and acts of any of the x x x cities and x x x municipalities
comprising Metro Manila.
Xxx
The creation of the MMC also carried with it the creation
of the Sangguniang Bayan. This was composed of the
members of the component city and municipal councils,
barangay captains chosen by the MMC and sectoral
representatives appointed by the President. The
Sangguniang Bayan had the power to recommend to the
MMC the adoption of ordinances, resolutions or measures.
It was the MMC itself, however, that possessed legislative
powers. All ordinances, resolutions and measures
recommended by the Sangguniang Bayan were subject to
the MMC’s approval. Moreover, the power to impose
taxes and other levies, the power to appropriate money,
and the power to pass ordinances or resolutions with
penal sanctions were vested exclusively in the MMC.
Thus, Metropolitan Manila had a “central government,”
i.e., the MMC which fully possessed legislative and police
powers. Whatever legislative powers the component
cities and municipalities had were all subject to review
and approval by the MMC.
After President Corazon Aquino assumed power, there
was a clamor to restore the autonomy of the local
government units in Metro Manila. Hence, Sections 1 and
2 of Article X of the 1987 Constitution x x x. The
Constitution, however, recognized the necessity of
creating metropolitan regions not only in the existing
National Capital Region but also in potential equivalents
in the Visayas and Mindanao. X x x
The Constitution itself expressly provides that Congress
may, by law, create “special metropolitan political
subdivisions” which shall be subject to approval by a
majority of the votes cast in a plebiscite in the political
units directly affected; the jurisdiction of this subdivision
shall be limited to basic services requiring coordination;
and the cities and municipalities comprising this
subdivision shall retain their basic autonomy and their
own local executive and legislative assemblies (Section
11, Article X, 1987 Constitution). Pending enactment of
this law, the Transitory Provisions of the Constitution gave
the President of the Philippines the power to constitute
the Metropolitan Authority x x x.
In 1990, President Aquino issued Executive Order No. 392
and constituted the Metropolitan Manila Authority (MMA).
The powers and functions of the MMC were devolved to
the MMA. It ought to be stressed, however, that not all
powers and functions of the MMC were passed to the
MMA. The MMA’s power was limited to the “delivery of
basic urban services requiring coordination in
Metropolitan Manila.” The MMA’s governing body, the
Metropolitan Manila Council, although composed of the
mayors of the component cities and municipalities, was
merely given the power of: (1) formulation of policies on
the delivery of basic services requiring coordination and
consolidation; and (2) promulgation of resolutions and
other issuances, approval of a code of basic services and
the exercise of its rule-making power.”
Under the 1987 Constitution, the local government units
became primarily responsible for the governance of their
respective political subdivisions. The MMA’s jurisdiction
was limited to addressing common problems involving
basic services that transcended local boundaries. It did
not have legislative power. Its power was merely to
provide the local government units technical assistance in
the preparation of local development plans. Any
semblance of legislative power it had was confined to a
“review [of] legislation proposed by the local legislative
assemblies to ensure consistency among local
governments and with the comprehensive development
plan of Metro Manila,” and to “advise the local
governments accordingly.”
When R.A. No. 7924 took effect, Metropolitan Manila
became a “special development and administrative
region” and the MMDA a “special development authority”
whose functions were “without prejudice to the autonomy
of the affected local government units.” The character of
the MMDA was clearly defined in the legislative debates
enacting its charter.
Xxx
Clearly, the MMDA is not a political unit of government.
The power delegated to the MMDA is that given to the
Metro Manila Council to promulgate administrative rules
and regulations in the implementation of the MMDA’s
functions. There is no grant of authority to enact
ordinances and regulations for the general welfare of the
inhabitants of the metropolis. This was explicitly stated
in the last Committee deliberations prior to the bill’s
presentation to Congress. X x x
It is thus beyond doubt that the MMDA is not a local
government unit or a public corporation endowed with
legislative power. It is not even a “special metropolitan
political subdivision” as contemplated in Section 11,
Article X of the Constitution. The creation of a “special
metropolitan political subdivision” requires the approval
by a majority of the votes cast in a plebiscite in the
political units directly affected. R.A. No. 7924 was not
submitted to the inhabitants of Metro Manila in a
plebiscite. The Chairman of the MMDA is not an official
elected by the people, but appointed by the President
with the rank and privileges of a cabinet member. In fact,
part of his function is to perform such other duties as may
be assigned to him by the President, whereas in local
government units, the President merely exercises
supervisory authority. This emphasizes the administrative
character of the MMDA.
Clearly then, the MMC under P.D. No. 824 is not the same
entity as the MMDA under R.A. No. 7924. Unlike the
MMC, the MMDA has no power to enact ordinances for
the welfare of the community. It is the local government
units, acting through their respective legislative councils,
that possess legislative power and police power. In the
case at bar, the Sangguniang Panlungsod of Makati City
did not pass any ordinance or resolution ordering the
opening of Neptune Street, hence, its proposed opening
by petitioner MMDA is illegal x x x. (MMDA v. Bel-Air
Village Association, Inc., 328 SCRA 836, March 27,
2000, 1st Div. [Puno])
331. Discuss the concept of local autonomy.
Held: Autonomy is either decentralization of
administration or decentralization of power. There is
decentralization of administration when the central
government delegates administrative powers to political
subdivisions in order to broaden the base of government
and in the process to make local governments more
responsive and accountable, and ensure their fullest
development as self-reliant communities and make them
more effective partners in the pursuit of national
development and social progress. At the same time, it
relieves the central government of the burden of
managing local affairs and enables it to concentrate on
national concerns. The President exercises general
supervision over them, but only to ensure that local affairs
are administered according to law. He has no control over
their acts in the sense that he can substitute their
judgments with his own.
Decentralization of power, on the other hand, involves an
abdication of political power in favor of local government
units declared autonomous. In that case, the
autonomous government is free to chart its own destiny
and shape its own future with minimum intervention from
central authorities. According to a constitutional author,
decentralization of power amounts to “self-immolation,”
since in that event, the autonomous government
becomes accountable not to the central authorities but to
its constituency. (Limbona v. Mangelin, 170 SCRA
786, Feb. 28, 1989, En Banc [Sarmiento])
332. What kind of local autonomy is contemplated by
the Constitution? What about the kind of autonomy
contemplated insofar as the autonomous regions are
concerned?
Held: 1. The principle of local autonomy under the 1987
Constitution simply means “decentralization.” It does not
make local governments sovereign within the state or an
“imperium in imperio.” Remaining to be an intra
sovereign subdivision of one sovereign nation, but not
intended, however, to be an imperium in imperio,” the
local government unit is autonomous in the sense that it
is given more powers, authority, responsibilities and
resources. Power which used to be highly centralized in
Manila, is thereby deconcentrated, enabling especially the
peripheral local government units to develop not only at
their own pace and discretion but also with their own
resources and assets. (Alvarez v. Guingona, Jr., 252
SCRA 695, Jan. 31, 1996, En Banc [Hermosisima])
2. The constitutional guarantee of local autonomy in the
Constitution refers to the administrative autonomy of local
government units or, cast in more technical language, the
decentralization of government authority.
On the other hand, the creation of autonomous regions in
Muslim Mindanao and the Cordilleras, which is peculiar to
the 1987 Constitution, contemplates the grant of political
autonomy and not just administrative autonomy to these
regions. Thus, the provision in the Constitution for an
autonomous regional government with a basic structure
consisting of an executive department and a legislative
assembly and special courts with personal, family and
property law jurisdiction in each of the autonomous
regions. (Cordillera Broad Coalition v. COA, 181
SCRA 495, Jan. 29, 1990, En Banc [Cortes])
333. Whether or not the Internal Revenue allotments
(IRAs) are to be included in the computation of the
average annual income of a municipality for purposes of
its conversion into an independent component city?
Held: Yes. The IRAs are items of income because they
form part of the gross accretion of the funds of the local
government unit. The IRAs regularly and automatically
accrue to the local treasury without need of any further
action on the part of the local government unit. They
thus constitute income which the local government can
invariably rely upon as the source of much needed funds.
Xxx
[T]o reiterate, IRAs are a regular, recurring item of
income; nil is there a basis, too, to classify the same as a
special fund or transfer, since IRAs have a technical
definition and meaning all its own as used in the Local
Government Code that unequivocally makes it distinct
from special funds or transfers referred to when the Code
speaks of “funding support from the national government,
its instrumentalities and government-owned or controlled
corporations.”
Thus, Department of Finance Order No. 35-93 correctly
encapsulizes the full import of the above disquisition when
it defined ANNUAL INCOME to be “revenues and receipts
realized by provinces, cities and municipalities from
regular sources of the Local General Fund including the
internal revenue allotment and other shares provided for
in Sections 284, 290 and 291 of the Code, but exclusive
of non-recurring receipts, such as other national aids,
grants, financial assistance, loan proceeds, sales of fixed
assets, and similar others”. Such order, constituting
executive or contemporaneous construction of a statute
by an administrative agency charged with the task of
interpreting and applying the same, is entitled to full
respect and should be accorded great weight by the
courts, unless such construction is clearly shown to be in
sharp conflict with the Constitution, the governing
statute, or other laws. (Alvarez v. Guingona, Jr., 252
SCRA 695, Jan. 31, 1996, En Banc [Hermosisima,
Jr., J.])
334. State the importance of drawing with precise
strokes the territorial boundaries of a local government
unit.
Held: The importance of drawing with precise strokes
the territorial boundaries of a local unit of government
cannot be overemphasized. The boundaries must be
clear for they define the limits of the territorial jurisdiction
of a local government unit. It can legitimately exercise
powers of government only within the limits of its
territorial jurisdiction. Beyond these limits, its acts are
ultra vires. Needless to state, any uncertainty in the
boundaries of local government units will sow costly
conflicts in the exercise of governmental powers which
ultimately will prejudice the people’s welfare. This is the
evil sought to be avoided by the Local Government Code
in requiring that the land area of a local government unit
must be spelled out in metes and bounds, with technical
descriptions. (Mariano, Jr. v. COMELEC, 242 SCRA
211, 217-219, Mar. 7, 1995, En Banc [Puno])
335. R.A. 7854 was enacted converting the
Municipality of Makati into a highly urbanized city. Section
2 thereof did not provide for a cadastral type of
description of its boundary but merely provided that the
boundary of the new city of Makati shall be the boundary
of the present municipality of Makati. Petitioners
contended in a petition brought the SC that R.A. 7854 was
defective because it did not comply with the requirement
in the Local Government Code that “the territorial
jurisdiction of newly created or converted cities should be
described by metes and bounds, with technical
descriptions.” Note that at the time the law was enacted,
there was a pending boundary dispute between Makati
and one of its neighbors, Taguig, before the regular court.
Should the contention be upheld?
Held: Given the facts of the cases at bench, we cannot
perceive how this evil (uncertainty in the boundaries of
local government units will sow costly conflicts in the
exercise of government powers which ultimately will
prejudice the people’s welfare) can be brought about by
the description made in Section 2 of R.A. No. 7854.
Petitioners have not demonstrated that the delineation of
the land area of the proposed City of Makati will cause
confusion as to its boundaries. We note that said
delineation did not change even by an inch the land area
previously covered by Makati as a municipality. Section 2
did not add, subtract, divide, or multiply the established
land area of Makati. In language that cannot be any
clearer, Section 2 stated that the city’s land area “shall
comprise the present territory of the municipality.”
The deliberations of Congress will reveal that there is a
legitimate reason why the land area of the proposed City
of Makati was not defined by metes and bounds, with
technical descriptions. At the time of the consideration of
R.A. No. 7854, the territorial dispute between the
municipalities of Makati and Taguig over Fort Bonifacio
was under court litigation. Out of a becoming sense of
respect to a co-equal department of government, the
legislators felt that the dispute should be left to the courts
to decide. They did not want to foreclose the dispute by
making a legislative finding of fact which could decide the
issue. This would have ensued if they defined the land
area of the proposed city by its exact metes and bounds,
with technical descriptions. We take judicial notice of the
fact that Congress has also refrained from using the
metes and bounds description of the land area of other
local government units with unsettled boundary disputes.
We hold that the existence of a boundary dispute does
not per se present an insurmountable difficulty which will
prevent Congress from defining with reasonable certitude
the territorial jurisdiction of a local government unit. In
the cases at bench, Congress maintained the existing
boundaries of the proposed City of Makati but as an act
of fairness, made them subject to the ultimate resolution
by the courts. Considering these peculiar circumstances,
we are not prepared to hold that Section 2 of R.A. No.
7854 is unconstitutional. We sustain the submission of
the Solicitor General in this regard, viz:
“Going now to Sections 7 and 450 of the Local
Government Code, it is beyond cavil that the requirement
started therein, viz: ‘the territorial jurisdiction of newly
created or converted cities should be described by metes
and bounds, with technical descriptions” – was made in
order to provide a means by which the area of said cities
may be reasonably ascertained. In other words, the
requirement on metes and bounds was meant merely as
a tool in the establishment of local government units. It
is not an end in itself. Ergo, so long as the territorial
jurisdiction of a city may be reasonably ascertained, i.e.,
by referring to common boundaries with neighboring
municipalities, as in this case, then, it may be concluded
that the legislative intent behind the law has been
sufficiently served.
Certainly, Congress did not intend that laws creating new
cities must contain therein detailed technical descriptions
similar to those appearing in Torrens titles, as petitioners
seem to imply. To require such description in the law as
a condition sine qua non for its validity would be to defeat
the very purpose which the Local Government Code seeks
to serve. The manifest intent of the Code is to empower
local government units and to give them their rightful due.
It seeks to make local governments more responsive to
the needs of their constituents while at the same time
serving as a vital cog in national development. To
invalidate R.A. No. 7854 on the mere ground that no
cadastral type of description was used in the law would
serve the letter but defeat the spirit of the Code. It then
becomes a case of the master serving the slave, instead
of the other way around. This could not be the
intendment of the law.” X x x
(Mariano, Jr. v. COMELEC, 242 SCRA 211, 217-219,
Mar. 7, 1995, En Banc [Puno])
336. What is the meaning of "devolution"?
Answer: The term "devolution" refers to the act by
which the National government confers power and
authority upon the various local government units to
perform specific functions and responsibilities. (Sec.
17[e], 2nd par., Local Government Code)
337. Have the powers of the Land Transportation
Office (LTO) to register, tricycles in particular, as well as
to issue licenses for the driving thereof, been devolved
likewise to local government units?
Held: Only the powers of the Land Transportation
Franchising Regulatory Board (LTFRB) to regulate the
operation of tricycles-for-hire and to grant franchises for
the operation thereof have been devolved to local
governments under the Local Government Code. Clearly
unaffected by the Local Government Code are the powers
of the LTO under R.A. No. 4136 requiring the registration
of all kinds of motor vehicles “used or operated on or upon
any public highway” in the country. This can be gleaned
from the explicit language of the statute itself, as well as
the corresponding guidelines issued by the DOTC. In fact,
even the power of LGUs to regulate the operation of
tricycles and to grant franchises for the operation thereof
is still subject to the guidelines prescribed by the DOTC.
(LTO v. City of Butuan, G.R. No. 131512, Jan. 20,
2000, 3rd Div. [Vitug])
338. Distinguish the power to grant a license or permit
to do business and the power to issue a license to engage
in the practice of a particular profession.
Held: Distinction must be made between the grant of a
license or permit to do business and the issuance of a
license to engage in the practice of a particular
profession. The first is usually granted by the local
authorities and the second is issued by the Board or
Commission tasked to regulate the particular profession.
A business permit authorizes the person, natural or
otherwise, to engage in business or some form of
commercial activity. A professional license, on the other
hand, is the grant of authority to a natural person to
engage in the practice or exercise of his or her profession.
In the case at bar, what is sought by petitioner (Acebedo
Optical Company, Inc.) from respondent City Mayor is a
permit to engage in the business of running an optical
shop. It does not purport to seek a license to engage in
the practice of optometry as a corporate body or entity,
although it does have in its employ, persons who are duly
licensed to practice optometry by the Board of Examiners
in Optometry.
Xxx
In the present case, the objective of the imposition of
subject conditions on petitioner’s business permit could
be attained by requiring the optometrists in petitioner’s
employ to produce a valid certificate of registration as
optometrists, from the Board of Examiners in Optometry.
A business permit is issued primarily to regulate the
conduct of business and the City Mayor cannot, through
the issuance of such permit, regulate the practice of a
profession, like that of optometry. Such a function is
within the exclusive domain of the administrative agency
specifically empowered by law to supervise the
profession, in this case the Professional Regulations
Commission and the Board of Examiners in Optometry.
(Acebedo Optical Company, Inc. v. CA, 329 SCRA
314, March 31, 2000, En Banc [Purisima])
339. May a local government unit validly authorize an
expropriation of private property through a mere
resolution of its lawmaking body?
Held: The Local Government Code expressly and clearly
requires an ordinance or a local law for that purpose. A
resolution that merely expresses the sentiment or opinion
of the Municipal Council will not suffice. The case of
Province of Camarines Sur v. Court of Appeals which held
that a mere resolution may suffice to support the exercise
of eminent domain by a local government unit is not in
point because the applicable law at that time was B.P.
337, the previous Local Government Code, which had
provided that a mere resolution would enable an LGU to
exercise eminent domain. In contrast, R.A. 7160, the
present Local Government Code, explicitly required an
ordinance for this purpose. (Municipality of
Paranaque v. V.M. Realty Corp., 292 SCRA 678,
July 20, 1998 [Panganiban])
340. What are the requisites before a Local
Government Unit can validly exercise the power of
eminent domain?
Held:
1) An ordinance is enacted by the local
legislative council authorizing the local chief executive, in
behalf of the LGU, to exercise the power of eminent
domain or pursue expropriation proceedings over a
particular private property;
2) The power of eminent domain is exercised for
public use, purpose or welfare, or for the benefit of the
poor and the landless;
3) There is payment of just compensation, as
required under Section 9, Article III of the Constitution,
and other pertinent laws;
4) A valid and definite offer has been previously
made to the owner of the property sought to be
expropriated, but said offer was not accepted.
(Municipality of Paranaque v. V.M. Realty Corp.,
292 SCRA 678, July 20, 1998 [Panganiban])
341. May the Sangguniang Panlalawigan validly
disapprove a resolution or ordinance of a municipality
calling for the expropriation of private property to be
made site of a Farmers Center and Other Government
Sports Facilities on the ground that said “expropriation is
unnecessary considering that there are still available lots
of the municipality for the establishment of a government
center”?
Held: Under the Local Government Code, the
Sangguniang Panlalawigan is granted the power to
declare a municipal resolution invalid on the sole ground
that it is beyond the power of the Sangguniang Bayan or
Mayor to issue. As held in Velazco v. Blas (G.R. No. L-
30456, July 30, 1982, 115 SCRA 540, 544-545), “The only
ground upon which a provincial board may declare any
municipal resolution, ordinance or order invalid is when
such resolution, ordinance, or order is ‘beyond the powers
conferred upon the council or president making the
same.’ A strictly legal question is before the provincial
board in its consideration of a municipal resolution,
ordinance, or order. The provincial board’s disapproval of
any resolution, ordinance, or order must be premised
specifically upon the fact that such resolution, ordinance,
or order is outside the scope of the legal powers conferred
by law. If a provincial board passes these limits, it usurps
the legislative functions of the municipal council or
president. Such has been the consistent course of
executive authority.” (Moday v. CA, 268 SCRA 586,
Feb. 20, 1997)
342. Under Section 8, Article X of the Constitution,
"[T]he term of office of elective local officials x x x shall
be three years and no such official shall serve for more
than three consecutive terms." How is this term limit for
elective local officials to be interpreted?
Held: The term limit for elective local officials must be
taken to refer to the right to be elected as well as the
right to serve in the same elective position.
Consequently, it is not enough that an individual has
served three consecutive terms in an elective local office,
he must also have been elected to the same position for
the same number of times before the disqualification can
apply. (Borja, Jr. v. COMELEC and Capco, Jr., G.R.
No. 133495, Sept. 3, 1998, 295 SCRA 157, En Banc
[Mendoza])
Case No. 1. Suppose A is a vice-mayor who becomes
mayor by reason of the death of the incumbent. Six
months before the next election, he resigns and is twice
elected thereafter. Can he run again for mayor in the
next election?

Answer: Yes, because although he has already first
served as mayor by succession and subsequently resigned
from office before the full term expired, he has not
actually served three full terms in all for the purpose of
applying the term limit. Under Art. X, Sec. 8, voluntary
renunciation of the office is not considered as an
interruption in the continuity of his service for the full term
only if the term is one “for which he was elected.” Since
A is only completing the service of the term for which the
deceased and not he was elected, A cannot be considered
to have completed one term. His resignation constitutes
an interruption of the full term.
Case No. 2. Suppose B is elected Mayor and, during his
first term, he is twice suspended for misconduct for a total
of 1 year. If he is twice reelected after that, can he run
for one more term in the next election?
Answer: Yes, because he has served only two full terms
successively.
In both cases, the mayor is entitled to run for reelection
because the two conditions for the application of the
disqualification provisions have not concurred, namely,
that the local official concerned has been elected three
consecutive times and that he has fully served three
consecutive terms. In the first case, even if the local
official is considered to have served three full terms
notwithstanding his resignation before the end of the first
term, the fact remains that he has not been elected three
times. In the second case, the local official has been
elected three consecutive times, but he has not fully
served three consecutive terms.
Case No. 3. The case of vice-mayor C who becomes
mayor by succession involves a total failure of the two
conditions to concur for the purpose of applying Art. X,
Sec. 8. Suppose he is twice elected after that term, is he
qualified to run again in the next election?
Answer: Yes, because he was not elected to the office
of mayor in the first term but simply found himself thrust
into it by operation of law. Neither had he served the full
term because he only continued the service, interrupted
by the death, of the deceased mayor. (Borja, Jr. v.
COMELEC and Capco, Jr., G.R. No. 133495, Sept. 3,
1998, 295 SCRA 157, En Banc [Mendoza])
343. What are the policies embodied in the
constitutional provision barring elective local officials, with
the exception of barangay officials, from serving more
than three consecutive terms?
Held: To prevent the establishment of political dynasties
is not the only policy embodied in the constitutional
provision in question (barring elective local officials, with
the exception of barangay officials, from serving more
than three consecutive terms). The other policy is that of
enhancing the freedom of choice of the people. To
consider, therefore, only stay in office regardless of how
the official concerned came to that office – whether by
election or by succession by operation of law – would be
to disregard one of the purposes of the constitutional
provision in question. (Borja, Jr. v. COMELEC and
Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295
SCRA 157, En Banc [Mendoza])
344. Lonzanida was previously elected and served
two consecutive terms as mayor of San Antonio,
Zambales prior to the May 1995 mayoral elections. In the
May 1995 elections he again ran for mayor of San
Antonio, Zambales and was proclaimed winner. He
assumed office and discharged the rights and duties of
mayor until March 1998 when he was ordered to vacate
the post by reason of the COMELEC decision on the
election protest against him which declared his opponent
Juan Alvez the duly elected mayor. Alvez served the
remaining portion of the 1995-1998 mayoral term. Is
Lonzanida still qualified to run for mayor of San Antonio,
Zambales in the May 1998 local elections?
Held: The two requisites for the application of the three
term rule was absent. First, Lonzanida cannot be
considered as having been duly elected to the post in the
May 1995 elections, and second, he did not fully serve the
1995-1998 mayoral term by reason of involuntary
relinquishment of office. After a re-appreciation and
revision of the contested ballots the COMELEC itself
declared by final judgment that Lonzanida lost in the May
1995 mayoral elections and his previous proclamation as
winner was declared null and void. His assumption of
office as mayor cannot be deemed to have been by
reason of a valid election but by reason of a void
proclamation. It has been repeatedly held by the SC that
a proclamation subsequently declared void is no
proclamation at all and while a proclaimed candidate may
assume office on the strength of the proclamation of the
Board of Canvassers he is only a presumptive winner who
assumes office subject to the final outcome of the election
protest. Lonzanida did not serve a term as mayor of San
Antonio, Zambales from May 1995 to March 1998 because
he was not duly elected to the post; he merely assumed
office as presumptive winner, which presumption was
later overturned by the COMELEC when it decided with
finality that Lonzanida lost in the May 1995 mayoral
elections.
Second, Lonzanida cannot be deemed to have served the
May 1995 to 1998 term because he was ordered to vacate
his post before the expiration of the term. His opponents'
contention that Lonzanida should be deemed to have
served one full term from May 1995-1998 because he
served the greater portion of that term has no legal basis
to support it; it disregards the second requisite for the
application of the disqualification, i.e., that he has fully
served three consecutive terms. The second sentence of
the constitutional provision under scrutiny states,
"Voluntary renunciation of office for any length of time
shall not be considered as an interruption in the continuity
of service for the full term for which he was elected." The
clear intent of the framers of the Constitution to bar any
attempt to circumvent the three-term limit by a voluntary
renunciation of office and at the same time respect the
people's choice and grant their elected official full service
of a term is evident in this provision. Voluntary
renunciation of a term does not cancel the renounced
term in the computation of the three term limit;
conversely, involuntary severance from office for any
length of time short of the full term provided by law
amounts to an interruption of continuity of service.
Lonzanida vacated his post a few months before the next
mayoral elections, not by voluntary renunciation but in
compliance with the legal process of writ of execution
issued by the COMELEC to that effect. Such involuntary
severance from office is an interruption of continuity of
service and thus, Lonzanida did not fully serve the 1995-
1998 mayoral term.
In sum, Lonzanida was not the duly elected mayor and
that he did not hold office for the full term; hence, his
assumption of office from May 1995 to March 1998 cannot
be counted as a term for purposes of computing the three
term limit. (Lonzanida v. COMELEC, 311 SCRA 602,
July 28, 1999, En Banc [Gonzaga-Reyes])
345. May the President validly withhold a portion of the
internal revenue allotments of Local Government Units
legally due them by administrative fiat?
Held: The Constitution vests the President with the
power of supervision, not control, over local government
units (LGUs). Such power enables him to see to it that
LGUs and their officials execute their tasks in accordance
with law. While he may issue advisories and seek their
cooperation in solving economic difficulties, he cannot
prevent them from performing their tasks and using
available resources to achieve their goals. He may not
withhold or alter any authority or power given them by
the law. Thus, the withholding of a portion of internal
revenue allotments legally due them cannot be directed
by administrative fiat.
Xxx
Section 4 of AO 372 cannot x x x be upheld. A basic
feature of local fiscal autonomy is the automatic release
of the shares of LGUs in the National internal revenue.
This is mandated by no less than the Constitution . The
Local Government Code (Sec. 286[a]) specifies further
that the release shall be made directly to the LGU
concerned within five (5) days after every quarter of the
year and “shall not be subject to any lien or holdback that
may be imposed by the national government for whatever
purpose.” As a rule, the term “shall” is a word of
command that must be given a compulsory meaning.”
The provision is, therefore, imperative.
Section 4 of AO 372, however, orders the withholding,
effective January 1, 1998, of 10 percent of the LGUs’ IRA
“pending the assessment and evaluation by the
Development Budget Coordinating Committee of the
emerging fiscal situation” in the country. Such
withholding clearly contravenes the Constitution and the
law. Although, temporary, it is equivalent to a holdback,
which means “something held back or withheld. Often
temporarily.” Hence, the “temporary” nature of the
retention by the national government does not matter.
Any retention is prohibited.
In sum, while Section 1 of AO 372 may be upheld as an
advisory effected in times of national crisis, Section 4
thereof has no color of validity at all. The latter provision
effectively encroaches on the fiscal autonomy of local
governments. Concededly, the President was well-
intentioned in issuing his Order to withhold the LGUs’ IRA,
but the rule of law requires that even the best intentions
must be carried out within the parameters of the
Constitution and the law. Verily, laudable purposes must
be carried out by legal methods. (Pimentel, Jr. v.
Aguirre, G.R. No. 132988, 336 SCRA 201, July 19,
2000, En Banc [Panganiban])
346. What is meant by fiscal autonomy of Local
Governments? Does it rule out in any manner national
government intervention by way of supervision in order
to ensure that local programs are consistent with national
goals?
Held: Under existing law, local government units, in
addition to having administrative autonomy in the
exercise of their functions, enjoy fiscal autonomy as well.
Fiscal autonomy means that local governments have the
power to create their own sources of revenue in addition
to their equitable share in the national taxes released by
the national government, as well as the power to allocate
their resources in accordance with their own priorities. It
extends to the preparation of their budgets, and local
officials in turn have to work within the constraints
thereof. They are not formulated at the national level and
imposed on local governments, whether they are relevant
to local needs and resources or not. Hence, the necessity
of a balancing of viewpoints and the harmonization of
proposals from both local and national officials, who in
any case are partners in the attainment of national goals.
Local fiscal autonomy does not, however, rule out any
manner of national government intervention by way of
supervision, in order to ensure that local programs, fiscal
and otherwise, are consistent with national goals.
Significantly, the President, by constitutional fiat, is the
head of the economic and planning agency of the
government (Section 9, Article XII of the Constitution),
primarily responsible for formulating and implementing
continuing, coordinated and integrated social and
economic policies, plans and programs (Section 3,
Chapter 1, Subtitle C, Title II, Book V, EO 292
[Administrative Code of 1987]) for the entire country.
However, under the Constitution, the formulation and the
implementation of such policies and programs are subject
to “consultations with the appropriate public agencies,
various private sectors, and local government units.” The
President cannot do so unilaterally. (Pimentel, Jr. v.
Aguirre, 336 SCRA 201, July 19, 2000, En Banc
[Panganiban])
347. What are the requisites before the President may
interfere in local fiscal matters?
Held: x x x [T]he Local Government Code provides (Sec.
284. See also Art. 379 of the Rules and Regulations
Implementing the Local Government Code of 1991) :
“x x x [I]n the event the national government incurs an
unmanaged public sector deficit, the President of the
Philippines is hereby authorized, upon the
recommendation of [the] Secretary of Finance, Secretary
of the Interior and Local Government and Secretary of
Budget and Management, and subject to consultation
with the presiding officers of both Houses of Congress and
the presidents of the liga, to make the necessary
adjustments in the internal revenue allotment of local
government units but in no case shall the allotment be
less than thirty percent (30%) of the collection of national
internal revenue taxes of the third fiscal year preceding
the current fiscal year x x x”
There are therefore several requisites before the
President may interfere in local fiscal matters: (1) an
unmanaged public sector deficit of the national
government; (2) consultations with the presiding officers
of the Senate and the House of Representatives and the
presidents of the various local leagues; and (3) the
corresponding recommendation of the secretaries of the
Department of Finance, Interior and Local Government,
and Budget and Management. Furthermore, any
adjustment in the allotment shall in no case be less than
thirty percent (30%) of the collection of national internal
revenue taxes of the third fiscal year preceding the
current one. (Pimentel, Jr. v. Aguirre, 336 SCRA 201,
July 19, 2000, En Banc [Panganiban])
348. Distinguish an ordinance from a mere resolution.
Held: A municipal ordinance is different from a
resolution. An ordinance is a law, but a resolution is
merely a declaration of the sentiment or opinion of a
lawmaking body on a specific matter. An ordinance
possesses a general and permanent character, but a
resolution is temporary in nature. Additionally, the two
are enacted differently – a third reading is necessary for
an ordinance, but not for a resolution, unless decided
otherwise by a majority of all the Sanggunian members .
(Municipality of Paranaque v. V.M. Realty
Corporation, 292 SCRA 678, July 20, 1998
[Panganiban])
349. On its first regular session, may the Sanggunian
transact business other than the matter of adopting or
updating its existing rules or procedure?
Held: We cannot infer the mandate of the (Local
Government) Code that no other business may be
transacted on the first regular session except to take up
the matter of adopting or updating rules. All that the law
requires is that “on the first regular session x x x the
sanggunian concerned shall adopt or update its existing
rules or procedures.” There is nothing in the language
thereof that restricts the matters to be taken up during
the first regular session merely to the adoption or
updating of the house rules. If it were the intent of
Congress to limit the business of the local council to such
matters, then it would have done so in clear and
unequivocal terms. But as it is, there is no such intent.
Moreover, adopting or updating of house rules would
necessarily entail work beyond the day of the first regular
session. Does this mean that prior thereto, the local
council's hands were tied and could not act on any other
matter? That would certainly be absurd for it would result
in a hiatus and a paralysis in the local legislature's work
which could not have been intended by the law.
(Malonzo v. Zamora, 311 SCRA 224, July 27, 1999,
En Banc [Romero])
350. May an incumbent Vice-Governor, while
concurrently the Acting Governor, continue to preside
over the sessions of the Sangguniang Panlalawigan (SP)?
If no, who may preside in the meantime?
Held: Being the acting governor, the Vice-governor
cannot continue to simultaneously exercise the duties of
the latter office, since the nature of the duties of the
Provincial Governor calls for a full-time occupant to
discharge them. Such is not only consistent with but also
appears to be the clear rationale of the new (Local
Government) Code wherein the policy of performing dual
functions in both offices has already been abandoned. To
repeat, the creation of a temporary vacancy in the office
of the Governor creates a corresponding vacancy in the
office of the Vice-Governor whenever the latter acts as
Governor by virtue of such temporary vacancy. This
event constitutes an “inability” on the part of the regular
presiding officer (Vice-Governor) to preside during the SP
sessions, which thus calls for the operation of the remedy
set in Article 49(b) of the Local Government Code –
concerning the election of a temporary presiding officer.
The continuity of the Acting Governor’s (Vice-Governor)
powers as presiding officer of the SP is suspended so long
as he is in such capacity. Under Section 49(b), “in the
event of the inability of the regular presiding officer to
preside at the sanggunian session, the members present
and constituting a quorum shall elect from among
themselves a temporary presiding officer.” (Gamboa,
Jr. v. Aguirre, Jr., G.R. No. 134213, July 20, 1999,
En Banc [Ynares-Santiago])
351. What is recall?
Held: Recall is a mode of removal of a public officer by
the people before the end of his term of office. The
people's prerogative to remove a public officer is an
incident of their sovereign power and in the absence of
constitutional restraint, the power is implied in all
governmental operations. Such power has been held to
be indispensable for the proper administration of public
affairs. Not undeservedly, it is frequently described as a
fundamental right of the people in a representative
democracy. (Garcia v. COMELEC, 227 SCRA 108,
Oct. 5, 1993, En Banc [Puno])
352. What is the ground for recall? Is this subject to
judicial inquiry?
Held: Former Senator Aquilino Pimentel, Jr., a major
author of the subject law in his book The Local
Government Code of 1991: The Key to National
Development, stressed the same reason why the
substantive content of a vote of lack of confidence is
beyond any inquiry, thus:
“There is only one ground for recall of local government
officials: loss of confidence. This means that the people
may petition or the Preparatory Recall Assembly may
resolve to recall any local elective official without
specifying any particular ground except loss of
confidence. There is no need for them to bring up any
charge of abuse or corruption against the local elective
officials who are subject of any recall petition.
In the case of Evardone v. Commission on Elections, et
al., 204 SCRA 464, 472 (1991), the Court ruled that ‘loss
of confidence’ as a ground for recall is a political question.
In the words of the Court, 'whether or not the electorate
of the municipality of Sulat has lost confidence in the
incumbent mayor is a political question.’”
(Garcia v. COMELEC, 227 SCRA 108, Oct. 5, 1993,
En Banc [Puno])
353. The members of the Preparatory Recall Assembly
(PRA) of the province of Bataan adopted a resolution
calling for the recall of Governor Garcia. It was admitted,
however, by the proponents of the recall resolution that
only those members of the assembly inclined to agree
were notified of the meeting where said resolution was
adopted “as a matter of strategy and security.” They
justified these selective notices on the ground that the
law (Local Government Code) does not specifically
mandate the giving of notice. Should this submission be
sustained?
Held: We reject this submission of the respondents. The
due process clause of the Constitution requiring notice as
an element of fairness is inviolable and should always be
considered part and parcel of every law in case of its
silence. The need for notice to all the members of the
assembly is also imperative for these members represent
the different sectors of the electorate of Bataan. To the
extent that they are not notified of the meeting of the
assembly, to that extent is the sovereign voice of the
people they represent nullified. The resolution to recall
should articulate the majority will of the members of the
assembly but the majority will can be genuinely
determined only after all the members of the assembly
have been given a fair opportunity to express the will of
their constituents. Needless to stress, the requirement of
notice is mandatory for it is indispensable in determining
the collective wisdom of the members of the Preparatory
Recall Assembly. Its non-observance is fatal to the
validity of the resolution to recall petitioner Garcia as
Governor of the province of Bataan. (Garcia v.
COMELEC, G.R. No. 111511, Sept. 21, 1993; 227
SCRA 100, Oct. 5, 1993, En Banc [Puno]
354. The members of the Preparatory Recall
Assembly (PRA) of Puerto Princesa City met and adopted
a resolution calling for the recall of incumbent Mayor
Dennis Victorino M. Socrates on the ground of loss of
confidence on July 2, 2002. Mayor Socrates argued that
they have no authority to adopt said Recall Resolution
because a majority of PRA members were seeking a new
electoral mandate in the barangay elections scheduled
on July 15, 2002. Should his contention be sustained?
Held: This argument deserves scant consideration
considering that when the PRA members adopted the
Recall Resolution their terms of office had not yet expired.
They were all de jure sangguniang barangay members
with no legal disqualification to participate in the recall
assembly under Section 70 of the Local Government
Code. (Victorino Dennis M. Socrates v. The
Commission on Elections, G.R. No. 154512, Nov.
12, 2002, En Banc [Carpio])
355. Whether or not an elective official who became
City Mayor by legal succession can be the subject of a
recall election by virtue of a Preparatory Recall Assembly
Resolution which was passed or adopted when the said
elective official was still the Vice-Mayor.
Held: The specific purpose of the Preparatory
Recall Assembly was to remove Amelita S. Navarro as
the elected Vice-Mayor of Santiago City since PRA
Resolution No. 1 dated July 12, 1999 expressly states
that “ x x x it is hereby resolved to invoke the rescission
of the electoral mandate of the incumbent City Vice-
Mayor Amelita S. Navarro for loss of confidence through
a recall election to be set by the Commission on Election
as provided for under Section 71 of the Local
Government Code of 1991.” However, the said PRA
Resolution No. 1 is no longer applicable to her inasmuch
as she had already vacated the office of Vice-Mayor on
October 11, 1999 when she assumed the position of City
Mayor of Santiago City.
Even if the Preparatory Recall Assembly were to
reconvene to adopt another resolution for the recall of
Amelita Navarro, this time as Mayor of Santiago City, the
same would still not prosper in view of Section 74 (b) of
the Local Government Code of 1991 which provides that
“No recall shall take place within one (1) year from the
date of the official’s assumption of office or one (1) year
immediately preceding a regular election.” There is no
more allowable time in the light of that law within which
to hold recall elections for that purpose. The then Vice-
Mayor Amelita S. Navarro assumed office as Mayor of
Santiago City on October 11, 1999. One year after her
assumption of office as Mayor will be October 11, 2000
which is already within the one (1) year prohibited period
immediately preceding the next regular election in May
2001. (Afiado v. Commission on Elections, 340
SCRA 600, Sept. 18, 2000, En Banc [De Leon]
356. Mayor Edward S. Hagedorn of Puerto Princesa
City was elected for three consecutive times in the 1992,
1995 and 1998 elections and served in full his three
consecutive terms as Mayor. In the 2001 elections, he
ran for Governor of the Province of Palawan and lost.
Socrates ran and won as Mayor of Puerto Princesa in
that election. On July 2, 2002, the Preparatory Recall
Assembly (PRA) of Puerto Princesa City adopted a
Resolution calling for the recall of incumbent Mayor
Socrates. The COMELEC scheduled a Special Recall
Election for Mayor of that City on September 24, 2002.
Is Mayor Hagedorn qualified to run again for Mayor in
that Special Recall Election considering the
circumstances?
Held: The three-term limit rule for
elective local officials is found in Section 8, Article
X of the Constitution x x x.
This three-term limit rule is reiterated in Section
43 (b) of RA No. 7160, otherwise known as the Local
Government Code x x x.
These constitutional and statutory provisions
have two parts. The first part provides that an elective
local official cannot serve for more than three consecutive
terms. The clear intent is that only consecutive terms
count in determining the three-term limit rule. The
second part states that voluntary renunciation of office for
any length of time does not interrupt the continuity of
service. The clear intent is that involuntary severance
from office for any length of time interrupts continuity of
service and prevents the service before and after the
interruption from being joined together to form a
continuous service or consecutive terms.
After three consecutive terms, an elective local
official cannot seek immediate reelection for a fourth
term. The prohibited election refers to the next regular
election for the same office following the end of the third
consecutive term. Any subsequent election, like a recall
election, is no longer covered by the prohibition for two
reasons. First, a subsequent election like a recall election
is no longer an immediate reelection after three
consecutive terms. Second, the intervening period
constitutes an involuntary interruption in the continuity of
service.
Xxx
Clearly, what the Constitution prohibits is an
immediate reelection for a fourth term following three
consecutive terms. The Constitution, however, does not
prohibit a subsequent reelection for a fourth term as long
as the reelection is not immediately after the end of the
third consecutive term. A recall election mid-way in the
term following the third consecutive term is a subsequent
election but not an immediate reelection after the third
term.
Neither does the Constitution prohibit one barred
from seeking immediate reelection to run in any other
subsequent election involving the same term of office.
What the Constitution prohibits is a consecutive fourth
term. The debates in the Constitutional Commission
evidently show that the prohibited election referred to by
the framers of the Constitution is the immediate
reelection after the third term, not any other subsequent
election.
Xxx
In the case of Hagedorn, his candidacy in the
recall election on September 24, 2002 is not an immediate
reelection after his third consecutive term which ended on
June 30, 2001. The immediate reelection that the
Constitution barred Hagedorn from seeking referred to
the regular elections in 2001. Hagedorn did not seek
reelection in the 2001 elections.
Xxx
From June 30, 2001 until the recall election on
September 24, 2002, the mayor of Puerto Princesa was
Socrates. This period is clearly an interruption in the
continuity of Hagedorn’s service as mayor, not because
of his voluntary renunciation, but because of a legal
prohibition. Hagedorn’s three consecutive terms ended
on June 30, 2001. Hagedorn’s new recall term from
September 24, 2002 to June 30, 2004 is not a seamless
continuation of his previous three consecutive terms as
mayor. One cannot stitch together Hagedorn’s previous
three-terms with his new recall term to make the recall
term a fourth consecutive term because factually it is
not. An involuntary interruption occurred from June 30,
2001 to September 24, 2002 which broke the continuity
or consecutive character of Hagedorn’s service as
mayor.
X x x In Hagedorn’s case, the nearly 15-month period he
was out of office, although short of a full term of three
years, constituted an interruption in the continuity of his
service as mayor. The Constitution does not require the
interruption or hiatus to be a full term of three years. The
clear intent is that interruption “for any length of time,”
as long as the cause is involuntary, is sufficient to break
an elective local official’s continuity of service.
(Victorino Dennis M. Socrates v. The Commission
on Elections, G.R. No. 154512, Nov. 12, 2002, En
Banc [Carpio])
357. What acts of a Division of the COMELEC may be
subject of a motion for reconsideration of the COMELEC
en banc?
Held: Section 5, Rule 19 of the COMELEC Rules of
Procedure, provides:
“SEC. 5. How Motion for Reconsideration Disposed of. -
Upon the filing of a motion to reconsider a decision,
resolution, order or ruling of a Division, the Clerk of Court
concerned shall, within twenty-four (24) hours from the
filing thereof, notify the presiding Commissioner. The
latter shall within two (2) days thereafter certify the case
to the Commission en banc.”
Under the above-quoted rule, the acts of a
Division that are subject of a motion for reconsideration
must have a character of finality before the same can be
elevated to the COMELEC en banc. The elementary rule
is that an order is final in nature if it completely disposes
of the entire case. But if there is something more to be
done in the case after its issuance, that order is
interlocutory.
As correctly pointed out by public respondent in
its assailed order of November 29, 1999, the October 11,
1999 did not dispose of the case completely as there is
something more to be done which is to decide the election
protest. As such, it is the herein public respondent
(Second Division of the COMELEC) which issued the
interlocutory order of October 11, 1999 that should
resolve petitioner’s motion for reconsideration, not the
COMELEC en banc (Bulaong v. COMELEC, First Division,
220 SCRA 745, 749 [1993]). Accordingly, the applicable
rule on the subject is Section 5(c), Rule 3 of the COMELEC
Rules of Procedure, which states:
“Rule 3, Section 5(c). Any motion to reconsider a
decision, resolution, order or ruling of a Division shall be
resolved by the Commission en banc except motions on
interlocutory orders of the division, which shall be
resolved by the divisions which issued the order.”
That only final orders of a Division may be raised
before the COMELEC en banc is in accordance with Article
IX-C, Section 3 of the Constitution which mandates that
only motions for reconsideration of final decisions shall be
decided by the Commission on Elections en banc, thus:
“Sec. 3. The Commission on Elections may sit en banc or in
two divisions, and shall promulgate its rules of procedure in
order to expedite disposition of election cases, including pre-
proclamation controversies. All such election cases shall be
heard and decided in division, provided that motions for
reconsideration of decisions shall be decided by the
Commission en banc.”
It bears stressing that under this constitutional
provision, the COMELEC en banc shall decide motions for
reconsideration only of “decisions” of a Division, meaning
those acts of final character. Clearly, the assailed order
denying petitioner's demurrer to evidence, being
interlocutory, may not, be resolved by the COMELEC en
banc (Ambil, Jr. v. Commission on elections, G.R. No.
143398, Oct. 25, 2000, 344 SCRA 358). (Gementiza v.
Commission on Elections, 353 SCRA 724, March 6,
2001, En Banc [Sandoval-Gutierrez])
358. Will it be proper for the Commission on Elections
to act on a petition for recall signed by just one person?
Held: A petition for recall signed by just one person is in
violation of the statutory 25% minimum requirement as
to the number of signatures supporting any petition for
recall. Sec. 69(d) of the Local Government Code of 1991
expressly provides that 'recall of any elective x x x
municipal x x x official may also be validly initiated upon
petition of at least twenty-five percent (25%) of the total
number of registered voters in the local government unit
concerned during the election in which the local official
sought to be recalled was elected.' The law is plain and
unequivocal as to what constitutes recall proceedings:
only a petition of at least 25% of the total number of
registered voters may validly initiate recall proceedings.
(Angobung v. COMELEC, G.R. No. 126576, March 5,
1997)
359. Section 74 of the Local Government Code
provides that “no recall shall take place within one year x
x x immediately preceding a regular local election.” What
does the term “regular local election,” as used in this
section, mean?
Held: The term “regular local election” under Sec. 74 of
the Local Government Code of 1991 which provides that
“no recall shall take place within one (1) year x x x
immediately preceding a regular local election” refers to
one where the position of the official sought to be recalled
is to be actually contested and filled by the electorate
(Paras v. Comelec, G.R. No. 123169, Nov. 4, 1996). The
one-year time bar will not apply where the local official
sought to be recalled is a Mayor and the approaching
election is a barangay election. (Angobung v.
COMELEC, G.R. No. 126576, March 5, 1997)
360. Does the word “Recall” in paragraph (b) of
Section 74 of the Local Government Code include the
convening of the Preparatory Recall Assembly and the
filing by it of a recall resolution? Discuss.
Held: Petitioner contends that the term “recall” in Sec.
74 (b) refers to a process, in contrast to the term “recall
election” found in Sec. 74 (a), which obviously refers to
an election. He claims that “when several barangay
chairmen met and convened on May 19, 1999 and
unanimously resolved to initiate the recall, followed by the
taking of votes by the PRA on May 29, 1999 for the
purpose of adopting a resolution ‘to initiate the recall of
Jovito Claudio as Mayor of Pasay City for loss of
confidence,’ the process of recall began” and, since May
29, 1999 was less than a year after he had assumed
office, the PRA was illegally convened and all proceedings
held thereafter, including the filing of the recall petition
on July 2, 1999, were null and void.
The COMELEC, on the other hand, maintains that the
process of recall starts with the filing of the petition for
recall and ends with the conduct of the recall election, and
that, since the petition for recall in this case was filed on
July 2, 1999, exactly one year and a day after petitioner’s
assumption of office, the recall was validly initiated
outside the one-year prohibited period.
Both petitioner Claudio and the COMELEC thus agree that
the term “recall” as used in Sec. 74 refers to a process.
They disagree only as to when the process starts for
purpose of the one-year limitation in paragraph (b) of
Sec. 74.
We can agree that recall is a process which begins with
the convening of the preparatory recall assembly or the
gathering of the signatures at least 25% of the registered
voters of a local government unit, and then proceeds to
the filing of a recall resolution or petition with the
COMELEC, the verification of such resolution or petition,
the fixing of the date of the recall election, and the holding
of the election on the scheduled date. However, as used
in paragraph (b) of Sec. 74, “recall” refers to the election
itself by means of which voters decide whether they
should retain their local official or elect his replacement.
Xxx
To sum up, the term “recall” in paragraph (b) refers to
the recall election and not to the preliminary proceedings
to initiate recall –
1) Because Sec. 74 speaks of limitations on
“recall” which, according to Sec. 69, is a power which shall
be exercised by the registered voters of a local
government unit. Since the voters do not exercise such
right except in an election, it is clear that the initiation of
recall proceedings is not prohibited within the one-year
period provided in paragraph (b);
2) Because the purpose of the first limitation in
paragraph (b) is to provide voters a sufficient basis for
judging an elective local official, and final judging is not
done until the day of the election; and
3) Because to construe the limitation in
paragraph (b) as including the initiation of recall
proceedings would unduly curtail freedom of speech and
of assembly guaranteed in the Constitution.
(Jovito O. Claudio v. COMELEC, G.R. No. 140560,
May 4, 2000, En Banc [Mendoza])
361. Who has the legal authority to represent a
municipality in lawsuits?
Held: Only the provincial fiscal, provincial attorney, and
municipal attorney should represent a municipality in its
lawsuits. Only in exceptional instances may a private
attorney be hired by a municipality to represent it in
lawsuits. (Ramos v. CA, 269 SCRA 34, March 3,
1997)
362. What are the exceptional instances when a
private attorney may be validly hired by a municipality in
its lawsuits?
Held: In Alinsug v. RTC Br. 58, San Carlos City, Negros
Occidental (225 SCRA 553, Aug. 23, 1993), it was held
that “the law allows a private counsel to be hired by a
municipality only when the municipality is an adverse
party in a case involving the provincial government or
another municipality or city within the province. This
provision has its apparent origin in De Guia v. The Auditor
General (44 SCRA 169, March 29, 1979) where the Court
held that the municipality’s authority to employ a private
attorney is expressly limited only to situations where the
provincial fiscal would be disqualified to serve and
represent it.” (Ramos v. CA, 269 SCRA 34, March 3,
1997)
363. Cite instances when the provincial fiscal may be
disqualified to represent in court a particular municipality.
Held: As held in Enriquez, Sr. v. Gimenez (107 Phil. 932
[1960]), the provincial fiscal may be disqualified to
represent in court a particular municipality in the following
instances:
1) If and when original jurisdiction of case
involving the municipality is vested in the Supreme Court;
2) When the municipality is a party adverse to
the provincial government or to some other municipality
in the same province; and
3) When, in a case involving the municipality,
he, or his wife, or child, is pecuniarily involved, as heir,
legatee, creditor or otherwise.
(Ramos v. CA, 269 SCRA 34, March 3, 1997)
364. May a municipality be represented by a private
law firm which had volunteered its services gratis, in
collaboration with the municipal attorney and the fiscal?
Held: No. Such representation will be violative of Section
1983 of the old Administrative Code. This strict coherence
to the letter of the law appears to have been dictated by
the fact that “the municipality should not be burdened
with expenses of hiring a private lawyer” and that “the
interests of the municipality would be best protected if a
government lawyer handles its litigations.”
Private lawyers may not represent municipalities on their
own. Neither may they do so even in collaboration with
authorized government lawyers. This is anchored on the
principle that only accountable public officers may act for
and in behalf of public entities and that public funds
should not be expended to hire private lawyers. (Ramos
v. CA, 269 SCRA 34, March 3, 1997)
365. May a municipality adopt the work already
performed in good faith by a private lawyer, which work
proved beneficial to it?
Held: Although a municipality may not hire a private
lawyer to represent it in litigations, in the interest of
substantial justice, however, it was held that a
municipality may adopt the work already performed in
good faith by such private lawyer, which work is beneficial
to it (1) provided that no injustice is thereby heaped on
the adverse party and (2) provided further that no
compensation in any guise is paid therefor by said
municipality to the private lawyer. Unless so expressly
adopted, the private lawyer’s work cannot bind the
municipality. (Ramos v. CA, 269 SCRA 34, March 3,
1997)
366. May the Punong Barangay validly appoint or
remove the barangay treasurer, the barangay secretary,
and other appointive barangay officials without the
concurrence of the majority of all the members of the
Sangguniang Barangay?
Held: The Local Government Code explicitly vests on the
punong barangay, upon approval by a majority of all the
members of the sangguniang barangay, the power to
appoint or replace the barangay treasurer, the barangay
secretary, and other appointive barangay officials. Verily,
the power of appointment is to be exercised conjointly by
the punong barangay and a majority of all the members
of the sangguniang barangay. Without such conjoint
action, neither an appointment nor a replacement can be
effectual.
Applying the rule that the power to appoint includes the
power to remove, the questioned dismissal from office of
the barangay officials by the punong barangay without
the concurrence of the majority of all the members of the
Sangguniang Barangay cannot be legally justified. To rule
otherwise could also create an absurd situation of the
Sangguniang Barangay members refusing to give their
approval to the replacements selected by the punong
barangay who has unilaterally terminated the services of
the incumbents. It is likely that the legislature did not
intend this absurdity to follow from its enactment of the
law. (Ramon Alquizola, Sr. v. Gallardo Ocol, G.R.
No. 132413, Aug. 27, 1999, 3rd Div. [Vitug])
367. What acts of a Division of the COMELEC may be
subject of a motion for reconsideration of the COMELEC
en banc?
Held: Section 5, Rule 19 of the COMELEC Rules of
Procedure, provides:
“SEC. 5. How Motion for Reconsideration Disposed of. -
Upon the filing of a motion to reconsider a decision,
resolution, order or ruling of a Division, the Clerk of Court
concerned shall, within twenty-four (24) hours from the
filing thereof, notify the presiding Commissioner. The
latter shall within two (2) days thereafter certify the case
to the Commission en banc.”
Under the above-quoted rule, the acts of a
Division that are subject of a motion for reconsideration
must have a character of finality before the same can be
elevated to the COMELEC en banc. The elementary rule
is that an order is final in nature if it completely disposes
of the entire case. But if there is something more to be
done in the case after its issuance, that order is
interlocutory.
As correctly pointed out by public respondent in
its assailed order of November 29, 1999, the October 11,
1999 did not dispose of the case completely as there is
something more to be done which is to decide the election
protest. As such, it is the herein public respondent
(Second Division of the COMELEC) which issued the
interlocutory order of October 11, 1999 that should
resolve petitioner’s motion for reconsideration, not the
COMELEC en banc (Bulaong v. COMELEC, First Division,
220 SCRA 745, 749 [1993]). Accordingly, the applicable
rule on the subject is Section 5(c), Rule 3 of the COMELEC
Rules of Procedure, which states:
“Rule 3, Section 5(c). Any motion to reconsider a
decision, resolution, order or ruling of a Division shall be
resolved by the Commission en banc except motions on
interlocutory orders of the division, which shall be
resolved by the divisions which issued the order.”
That only final orders of a Division may be raised
before the COMELEC en banc is in accordance with Article
IX-C, Section 3 of the Constitution which mandates that
only motions for reconsideration of final decisions shall be
decided by the Commission on Elections en banc, thus:
“Sec. 3. The Commission on Elections may sit en banc or in
two divisions, and shall promulgate its rules of procedure in
order to expedite disposition of election cases, including pre-
proclamation controversies. All such election cases shall be
heard and decided in division, provided that motions for
reconsideration of decisions shall be decided by the
Commission en banc.”
It bears stressing that under this constitutional
provision, the COMELEC en banc shall decide motions for
reconsideration only of “decisions” of a Division, meaning
those acts of final character. Clearly, the assailed order
denying petitioner's demurrer to evidence, being
interlocutory, may not, be resolved by the COMELEC en
banc (Ambil, Jr. v. Commission on elections, G.R. No.
143398, Oct. 25, 2000, 344 SCRA 358). (Gementiza v.
Commission on Elections, 353 SCRA 724, March 6,
2001, En Banc [Sandoval-Gutierrez])
368. Is a contract entered into by the city mayor
involving the expenditure of public funds by the local
government without prior appropriation by the city
council valid and binding?
Held: If we are to limit our disquisition to the cited
provisions of Presidential Decree No. 1445, or the
Auditing Code of the Philippines, in conjunction with
Section 177 (b) of Batas Pambansa Blg. 337, or the
Local Government Code of 1983, which empowered the
Sangguniang Panlungsod to “appropriate funds for
expenses of the city government, and fix the salaries of
its officers and employees according to law,” there
would be no debate that prior appropriation by the city
council and a certification that funds are available
therefore is indeed mandatorily required.
Xxx
However, the very same Presidential Decree No.
1445, which is the cornerstone of petitioner’s
arguments, does not provide that the absence of an
appropriation law ipso facto makes a contract entered
into by a local government unit null and void. Section
84 of the statute specifically provides:
Revenue funds shall not be paid out of any public
treasury or depository except in pursuance of an
appropriation law or other specific statutory authority.
Consequently, public funds may be disbursed
not only pursuant to an appropriation law, but also in
pursuance of other specific statutory authority, i.e.,
Section 84 of PD 1445. Thus, when a contract is
entered into by a city mayor pursuant to specific
statutory authority, the law, i.e., PD 1445 allows the
disbursement of funds from any public treasury or
depository therefor. It can thus be plainly seen that the
law invoked by petitioner Quezon City itself provides that
an appropriation law is not the only authority upon
which public funds shall be disbursed.
Furthermore, then Mayor Brigido Simon, Jr. did
not enter into the subject contract without legal
authority. The Local Government Code of 1983, or B.P.
Blg. 337, which was then in force, specifically and
exclusively empowered the city mayor to “represent the
city in its business transactions, and sign all warrants
drawn on the city treasury and all bonds, contracts and
obligations of the city.” Such power granted to the city
mayor by B.P. Blg. 337 was not qualified nor restricted
by any prior action or authority of the city council. We
note that while the subsequent Local Government Code
of 1991, which took effect after the execution of the
subject contracts, provides that the mayor’s
representation must be “upon authority of the
sangguniang panlungsod or pursuant to law or
ordinance,” there was no such qualification under the
old code. (Citations omitted)
We must differentiate the provisions of the old
Local Government Code of 1983, B.P. Blg. 337, which
was then in force, from that of the Local Government
Code of 1991, R.A. No. 7160, which now requires that
the mayor’s representation of the city in its business
transactions must be “upon authority of the
sangguniang panlungsod or pursuant to law or
ordinance” (Section 455 [vi]. No such prior authority
was required under B.P. Blg. 337. This restriction,
therefore, cannot be imposed on the city mayor then
since the two contracts were entered into before R.A.
No. 7160 was even enacted.
Under B.P. Blg. 337, while the city mayor has no
power to appropriate funds to support the contracts,
neither does said law prohibit him from entering into
contracts unless and until funds are appropriated
therefor. In fact, it is his bounden duty to so represent
the city in all its business transactions. On the other
hand, the city council must provide for the “depositing,
leaving or throwing of garbage” and to appropriate
funds for such expenses. (Section 177 [b]). It cannot
refuse to so provide and appropriate public funds for
such services which are very vital to the maintenance of
cleanliness of the city and the good health of its
inhabitants.
By entering into the two contracts, Mayor Simon
did not usurp the city council’s power to provide for the
proper disposal of garbage and to appropriate funds
therefor. The execution of contracts to address such a
need is his statutory duty, just as it is the city council’s
duty to provide for said services. There is no provision
in B.P. Blg. 337, however, that prohibits the city mayor
from entering into contracts for the public welfare,
unless and until there is prior authority from the city
council. This requirement was imposed much later by
R.A. No. 7160, long after the contracts had already been
executed and implemented.
Even the very Charter of Quezon City, more
particularly Section 9(f), Section 12(a)and Section 12(m)
thereof, simply provide that the mayor shall exercise
general powers and duties, such as signing “all warrants
drawn on the city treasurer and all bonds, contracts, and
obligations of the city,” even as it grants the City Council
the power, by ordinance or resolution, “to make all
appropriations for the expenses of the government of
the city,” as well as “to prohibit the throwing or
depositing of offal, garbage, refuse, or other offensive
matter in the same, and to provide for its collection and
disposition x x x.” (Citations omitted)
While the powers and duties of the Mayor and
the City Council are clearly delineated, there is nothing
in the cited provisions, nor even in the statute itself, that
requires “prior authorization by the city council by
proper enactment of an ordinance” before the City
Mayor can enter into contracts.
Private respondent Lexber asserts that the
subject contract was entered into by Mayor Simon in
behalf of the Quezon City government pursuant to specific
statutory authority, more particularly the provisions of
Executive Order No. 392 (Constituting the Metro Manila
Authority [MMA]). x x x (City of Quezon v. Lexber
Incorporated, 354 SCRA 493, Mar. 15, 2001, 1st
Div. [Ynares-Santiago])
369. Does the President’s power of general
supervision extend to the liga ng mga barangay, which
is not a local government unit?
Held: We rule in the affirmative. In Opinion
No. 41, Series of 1995, the Department of Justice ruled
that the liga ng mga barangay is a government
organization, being an association, federation, league or
union created by law or by authority of law, whose
members are either appointed or elected government
officials. The Local Government Code defines the liga ng
mga barangay as an organization of all barangays for
the primary purpose of determining the representation
of the liga in the sanggunians, and for ventilating,
articulating and crystallizing issues affecting barangay
government administration and securing, through proper
and legal means, solutions thereto (Sec. 491, Local
Government Code). X x x
Xxx
The ligas are primarily governed by the
provisions of the Local Government Code (Book III, Title
VI, Local Government Code). However, their respective
constitution and by-laws shall govern other matters
affecting internal organization of the liga not otherwise
provided for in the Local Government Code provided that
the constitution and by-laws shall be suppletory to the
provisions of Book III, Title VI of the Local Government
Code and shall always conform to the provisions of the
Constitution and existing laws (Sec. 507, Local
Government Code).
Having in mind the foregoing principles, we rule
that Memorandum Circular No. 97-193 of the DILG
insofar as it authorizes the filing a Petition for Review of
the BES with the regular courts in a post proclamation
electoral protest is of doubtful constitutionality. We
agree with both the petitioner and the Solicitor General
that in authorizing the filing of the petition for review of
the decision of the BES with the regular courts, the DILG
Secretary in effect amended and modified the
GUIDELINES promulgated by the National Liga Board
and adopted by the LIGA which provides that the
decision of the BES shall be subject to review by the
National Liga Board. The amendment of the
GUIDELINES is more than an exercise of the power of
supervision but is an exercise of the power of control,
which the President does not have over the LIGA.
Although the DILG is given the power to prescribe rules,
regulations and other issuances, the Administrative Code
limits its authority to merely “monitoring compliance” by
local government units of such issuances (Taule v.
Santos, 200 SCRA 512, 523 [1991]). To monitor means
“to watch, observe or check” and is compatible with the
power of supervision of the DILG Secretary over local
governments, which is limited to checking whether the
local government unit concerned or the officers thereof
perform their duties as per statutory enactments (Ibid.).
Besides, any doubt as to the power of the DILG
Secretary to interfere with local affairs should be
resolved in favor of the greater autonomy of the local
government (Ibid.)
The public respondent judge therefore committed
grave abuse of discretion amounting to lack or excess of
jurisdiction in not dismissing the respondent’s Petition for
Review for failure to exhaust all administrative remedies
and for lack of jurisdiction. (Bito-Onon v. Fernandez,
350 SCRA 732, Jan. 31, 2001, 3rd Div. [Gonzaga-
Reyes])
370. Petitioners would seek the disqualification of
respondent Leonardo B. Roman on the ground of his
having transgressed the three-term limit under Section
8, Article X, of the 1987 Constitution and Section 43 of
Republic Act No. 7160 (Local Government Code). The
focal issue presented before the Court x x x would
revolve on the question of whether or not private
respondent Roman exceeded the three-term limit for
elective local officials, expressed in the Constitution and
the Local Government Code, when he again ran for the
position of Governor in the 14th of May 2001 elections,
having occupied and served in that position following the
1993 recall elections, as well as the 1995 and 1998
regular elections, immediately prior to the 2001
elections. In fine, should respondent’s incumbency to
the post of Governor following the recall elections be
included in determining the three-consecutive term limit
fixed by law?
Held: After due deliberation, the Court voted 8 to 7 to
DISMISS the petition.
VITUG, J., joined by YNARES-SANTIAGO, J., voted to
dismiss the petition. He contended that as revealed by
the records of the Constitutional Commission, the
Constitution envisions a continuous and an uninterrupted
service for three full terms before the proscription applies.
Therefore, not being a full term, a recall term should not
be counted or used as a basis for the disqualification
whether served prior (as in this case) or subsequent (as
in the Socrates case) to the nine-year, full three-term
limit.
MENDOZA, J., in whose opinion QUISUMBING, J., joined,
voted to dismiss the petition on the ground that, in
accordance with the ruling in Borja, Jr. v. COMELEC, 295
SCRA 157 [1998]; Arcos v. COMELEC, G.R. No. 133639,
Oct. 6, 1998 (res.); Lonzanida v. COMELEC, 311 SCRA 602
[1999]; and Adormeo v. COMELEC, G.R. No. 147927, Feb.
4, 2002, a term during which succession to a local elective
office takes place or a recall election is held should not be
counted in determining whether an elective local official
has served more than three consecutive terms. He
argued that the Constitution does not prohibit elective
local officials from serving for more than three
consecutive terms because, in fact, it excludes from the
three-term limit interruptions in the continuity of service,
so long as such interruptions are not due to the voluntary
renunciation of the office by the incumbent. Hence, the
period from June 28, 1994 to June 30, 1995, during which
respondent Leonardo B. Roman served as governor of
Bataan by virtue of a recall election held in 1993, should
not be counted. Since on May 14, 2001 respondent had
previously served as governor of Bataan for only two
consecutive terms (1995-1998 and 1998-2001), his
election on that day was actually only his third term for
the same position.
PANGANIBAN, J., joined by PUNO, J., also voted to
dismiss the petition. He argued that a recall term should
not be considered as one full term, because a contrary
interpretation would in effect cut short the elected
official’s service to less than nine years and shortchange
his constituents. The desire to prevent monopoly of
political power should be balanced against the need to
uphold the voters’ obvious preference who, in the present
case, is Roman who received 97 percent of the votes cast.
He explained that, in Socrates, he also voted to affirm the
clear choice of the electorate, because in a democracy the
people should, as much as legally possible, be governed
by leaders freely chosen by them in credible elections. He
concluded that, in election cases, when two conflicting
legal positions are of almost equal weight, the scales of
justice should be tilted in favor of the people’s
overwhelming choice.
AZCUNA, J., joined by BELLOSILLO, J., also voted to
dismiss, arguing that it is clear from the constitutional
provision that the disqualification applies only if the terms
are consecutive and the service is full and continuous.
Hence, service for less than a term, except only in case of
voluntary renunciation, should not count to disqualify an
elective local official from running for the same position.
This case is different from Socrates, where the full three
consecutive terms had been continuously served so that
disqualification had clearly attached.
On the other hand, SANDOVAL-GUTIERREZ, J., with
whom DAVIDE, C.J., and AUSTRIA-MARTINEZ, CORONA,
and CALLEJO, SR., JJ., concurred, holds the view that the
recall term served by respondent Roman, comprising the
period June 28, 1994 to June 30, 1995, should be
considered as one term. Since he thereafter served for
two consecutive terms from 1995 to 1998 and from 1998
to 2001, his election on May 14, 2001 was actually his
fourth term and contravenes Art. X, Sec. 8 of the
Constitution. For this reason, she voted to grant the
petition and to declare respondent’s election on May 14,
2002 as null and void.
CARPIO, J., joined by CARPI0-MORALES, J., also
dissented and voted to grant the petition. He held that a
recall term constitutes one term and that to totally ignore
a recall term in determining the three-term limit would
allow local officials to serve for more than nine
consecutive years contrary to the manifest intent of the
framers of the Constitution. He contended that
respondent Roman’s election in 2001 cannot exempt him
from the three-term limit imposed by the Constitution.
In his Separate Opinion, Justice Vitug voted to dismiss
the petition on the following considerations:
In order that the three-consecutive term limit
can apply, two conditions must concur, i.e., (1) that the
elective local official concerned has been elected for
three consecutive terms to the same local government
position, and (2) that he has served three consecutive
full terms, albeit a voluntary renunciation of the
office for any length of time shall not be deemed to be
an interruption in the continuity of the service for the full
term for which he is elected. The constitutional
provision does not appear to be all that imprecise for
and in its application. Section 8, Article X, of the
Constitution is explicit that the “term of office of elective
local officials x x x shall be three years” which phrase is
forthwith followed by its mandate that “no such official
shall serve for more than three consecutive terms,” and
that “[v]oluntary renunciation of the office for any length
of time shall not be considered as an interruption in the
continuity of his service for the full term for which he
[is] elected.” The law evidently contemplates a
continuous full three-year term before the proscription
can apply.
The Constitutional Commission, in its
deliberations, referred to a full nine (9) years of service
for each elective local government official in the
application of the prohibition, envisioning at the same
time a continuous and uninterrupted period of nine
years by providing for only one exception, i.e., when an
incumbent voluntarily gives up the office.
Xxx
A winner who dislodges in a recall election an
incumbent elective local official merely serves the
balance of the latter’s term of office; it is not a full
three-year term. It also goes without saying that an
incumbent elective local official against whom a recall
election is initiated and who nevertheless wins in a recall
election must be viewed as being a continuing term of
office and not as a break in reckoning his three
consecutive terms. X x x
If involuntary severance from the service
which results in the incumbent’s being unable to finish
his term of office because of his ouster through valid
recall proceedings negates “one term” for purposes of
applying the three-term limit, as so intimated in
Lonzanida, it stands to reason that the balance of the
term assumed by the newly elected local official in a
recall election should not also be held to be one term in
reckoning the three-term limit. In both situations,
neither the elective local official who is unable to finish
his term nor the elected local official who only assumes
the balance of the term of the ousted local official
following the recall election could be considered to have
served a full three-year term set by the Constitution.
This view is not inconsistent, but indeed in line,
with the conclusion ultimately reached in Socrates v.
Commission on Elections, where the Court has
considered Hagedorn, following his three full terms of
nine years, still qualified to run in a recall election
conducted about a year and a half after the most recent
regular local elections. A recall term then, not being a
full three-year term, is not to be counted or used as a
basis for disqualification whether it is held prior or
subsequent to the nine year full three-term limit.
This same issue has been passed and ruled
upon by the Commission on Elections no less than five
times. Consistently, it has held that the term of a
newcomer in recall elections cannot be counted as a full
term and may not thus be included in counting the
three-term limit prescribed under the law. The
Commission on Elections, with its fact-finding facilities,
its familiarity with political realities, and its peculiar
expertise in dealing with election controversies, should
be in a good vantage point to resolve issues of this
nature. Concededly, no ready made formulae are
always extant to address occasional complex issues,
allowing time and experience to merely evolve and
ultimately provide acceptable solutions. In the
administration of election laws, it would be unsound by
an excessive zeal to remove from the Commission on
Elections the initiative it takes on such questions which,
in fact, by legal mandate properly belong to it (See
Loong v. COMELEC, 305 SCRA 832, Pangandaman v.
COMELEC, 319 SCRA 283).
Nor should it be ignored that the law here
involved is a limitation on the right of suffrage not only
on the candidate for office but also, and most
importantly, on the electorate. Respondent Roman has
won the election to the post of Governor of Bataan with
a comfortable margin against his closest opponent.
Where a candidate appears to be the clear choice of the
people, doubts on the candidate’s eligibility, even only
as a practical matter, must be so resolved as to respect
and carry out, not defeat, the paramount will of the
electorate. While the Constitution would attempt to
prevent the monopolization of political power, indeed a
wise rule, the precept of preserving the freedom of
choice of the people on who shall rightfully hold the
reins of government for them is no less than
fundamental in looking at its overriding intent. (Melanio
L. Mendoza and Mario E. Ibarra v. Commission on
Elections and Leonardo B. Roman, G.R. No.
149736, Dec. 17, 2002, En Banc)
371. On May 3, 2001, petitioner filed with the
Provincial Election Supervisor in Pagadian City a petition
for the disqualification of respondent Sulong, pursuant
to Sec. 40[b] of Republic Act No. 7160 (Local
Government Code), which disqualifies from running for
any elective local position “those removed from office as
a result of an administrative case.” It appears that
respondent Sulong had previously won as mayor of
Lapuyan on January 18, 1988. In the May 11, 1992,
and again in the May 8, 1995 elections, he was
reelected. In a petition for disqualification, petitioner
alleged that in 1991, during his first term as mayor of
Lapuyan, respondent Sulong, along with a municipal
councilor of Lapuyan and several other individuals, was
administratively charged (AC No. 12-91) with various
offenses, and that, on February 4, 1992, the
Sangguniang Panlalawigan of Zamboanga del Sur found
him guilty of the charges and ordered his removal from
office. Petitioner claimed that this decision had become
final and executory, and consequently the then vice-
mayor of Lapuyan, Vicente Imbing, took his oath as
mayor vice respondent Sulong on March 3, 1992.
Respondent Sulong denied that the decision in AC No.
12-91 had become final and executory. He averred that
after receiving a copy of the decision on February 17,
1992, he filed a motion for reconsideration and/or notice
of appeal thereof on February 18, 1992; that on
February 27, 1992, the Sangguniang Panlalawigan
required Jim Lingating, the complainant in AC No. 12-91,
to comment on respondent Sulong’s motion for
reconsideration and/or notice of appeal; that the said
complainant had not yet complied therewith and his
(respondent Sulong’s) motion had consequently
remained pending. Respondent Sulong denied he had
been removed from office by virtue of the decision in AC
No. 12-91.
Held: Petitioner contends that the COMELEC en
banc erred in applying the ruling in Aguinaldo v.
Commission on Elections (212 SCRA 768 [1992]) in
holding that the reelection of respondent Sulong in 1992
and 1995 as mayor of Lapuyan had the effect of
condoning the misconduct for which he was ordered
dismissed by the Sangguniang Panlalawigan of
Zamboanga del Sur. Petitioner cites Reyes v.
Commission on Elections (254 SCRA 514, 525-526
[1996]) in which we held that an elective local executive
officer, who is removed before the expiration of the term
for which he was elected, is disqualified from being a
candidate for a local elective position under Section
40[b] of the Local Government Code.
Xxx
However, Reyes cannot be applied to this case because
it appears that the 1992 decision of the Sangguniang
Panlalawigan, finding respondent Sulong guilty of
dishonesty, falsification and malversation of public
funds, has not until now become final. X x x The filing
of his motion for reconsideration prevented the decision
of Sangguniang Panlalawigan from becoming final.
While R.A. No. 7160 on disciplinary actions is
silent on the filing of a motion for reconsideration, the
same cannot be interpreted as a prohibition against the
filing of a motion for reconsideration. x x x.
There is thus no decision finding respondent
guilty to speak of. As Provincial Secretary of
Zamboanga del Sur Wilfredo Cimafranca attested, the
Sangguniang Panlalawigan simply considered the matter
as having become moot and academic because it was
“overtaken by the local elections of May [11], 1992.”
Neither can the succession of the then vice-
mayor of Lapuyan x x x and the highest ranking
municipal councilor of Lapuyan x x x to the offices of
mayor and vice-mayor, respectively, be considered proof
that the decision in AC No. 12-91 had become final
because it appears to have been made pursuant to Sec.
68 of the Local Government Code, which makes
decisions in administrative cases immediately executory.
Indeed, considering the failure of the
Sangguniang Panlalawigan to resolve respondent’s
motion, it is unfair to the electorate to be told after they
have voted for respondent Sulong that after all he is
disqualified, especially since at the time of the elections
on May 14, 2001, the decision of the Sangguniang
Panlalawigan had been rendered nearly ten years ago.
(Atty. Miguel M. Lingating v. Commission on
Elections and Cesar B. Sulong, G.R. No. 153475,
Nov. 13, 2002, En Banc [Mendoza])
372. When may a permanent vacancy arise under
Section 44 of the Local Government Code?
Held: Under Section 44, a permanent vacancy
arises when an elective official fills a higher vacant office,
refuses to assume office, fails to qualify, dies, is removed
from office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the functions of
his office. (Navarro v. Court of Appeals, 355 SCRA
672, Mar. 28, 2001, 1st Div. [Kapunan])
373. How is Section 45(b) of the Local Government
Code to be interpreted? What is the reason behind the
right given to a political party to nominate a replacement
where a permanent vacancy occurs in the Sanggunian?
Held: What is crucial is the interpretation of
Section 45(b) providing that “x x x only the nominee of
the political party under which the Sanggunian member
concerned has been elected and whose elevation to the
position next higher in rank created the last vacancy in
the Sanggunian shall be appointed in the manner
hereinabove provided. The appointee shall come from
the political party as that of the Sanggunian member who
caused the vacancy x x x.”
The reason behind the right given to a political
party to nominate a replacement where a permanent
vacancy occurs in the Sanggunian is to maintain the party
representation as willed by the people in the election
(Aquilino Pimentel, the Local Government Code of 1991,
The Key to National Development, p. 150).
With the elevation of petitioner Tamayo, who
belonged to REFORMA-LM, to the position of Vice-Mayor,
a vacancy occurred in the Sanggunian that should be filled
up with someone who should belong to the political party
of petitioner Tamayo. Otherwise, REFORMA-LM’s
representation in the Sanggunian would be diminished.
To argue that the vacancy created was that formerly held
by Rolando Lalas, a LAKAS-NUCD-Kampi member, would
result in the increase of that party’s representation in the
Sanggunian at the expense of the REFORMA-LM. This
interpretation is contrary to the letter and spirit of the law
and thus violative of a fundamental rule in statutory
construction which is to ascertain and give effect to the
intent and purpose of the law (Manila Lodge No. 761 v.
Court of Appeals, 73 SCRA 12 [1976]). As earlier pointed
out, the reason behind par. (b), section 44 of the Local
Government Code is the maintenance of party
representation in the Sanggunian in accordance with the
will of the electorate.
The “last vacancy” in the Sanggunian refers to
that created by the elevation of the member formerly
occupying the next higher in rank which in turn also had
become vacant by any of the causes already enumerated.
The term “last vacancy” is thus used in Sec. 45 (b) to
differentiate it from the other vacancy previously created.
The term by no means refers to the vacancy in the No. 8
position which occurred with the elevation of Rolando
Lalas to the seventh position in the Sanggunian. Such
construction will result in absurdity. (Navarro v. Court
of Appeals, 355 SCRA 672, Mar. 28, 2001, 1st Div.
[Kapunan])
374. May local elective officials practice their
profession or engage in any occupation?
Ans.: All governors, city and municipal mayors
are prohibited from practicing their profession or
engaging in any occupation other than the exercise of
their functions as local chief executives. (Sec. 90[a],
LGC)
Sanggunian members may practice their
profession, engage in any occupation, or teach in schools
except during session hours. (Sec. 90[b], LGC)
Sanggunian members who are also members of
the Bar shall not:
(a) Appear as counsel before any court in any
civil case wherein a local government unit or any office,
agency, or instrumentality of the government is the
adverse party;
(b) Appear as counsel in any criminal case
wherein an officer or employee of the national or local
government is accused of an offense committed in
relation to his office;
(c) Collect any fee for their appearance in
administrative proceedings involving the local
government unit of which he is an official; and
(d) Use property and personnel of the
government except when the sanggunian member
concerned is defending the interest of the Government.
(Sec. 90[b], LGC)
375. Whether or not the plebiscites scheduled for the
creation of Barangays Karangalan and Napico should be
suspended or cancelled in view of the pending boundary
dispute between the two local governments.
Held: To begin with, we agree with the position of the
COMELEC that Civil Case No. 94-3006 involving the
boundary dispute between the Municipality of Cainta and
the City of Pasig presents a prejudicial question which
must first be decided before the plebiscites for the
creation of the proposed barangays may be held.
Xxx
In the case at bar, while the City of Pasig vigorously
claims that the areas covered by the proposed Barangays
Karangalan and Napico are within its territory, it can not
deny that portions of the same area are included in the
boundary dispute case pending before the Regional Trial
Court of Antipolo. Surely, whether the areas in
controversy shall be decided as within the territorial
jurisdiction of the Municipality of Cainta or the City of
Pasig has material bearing to the creation of the proposed
Barangays Karangalan and Napico. Indeed, a requisite
for the creation of a barangay is for its territorial
jurisdiction to be properly identified by metes and bounds
or by more or less permanent natural boundaries (Sec.
386[b], R.A. No. 7160). Precisely because territorial
jurisdiction is an issue raised in the pending civil case,
until and unless such issue is resolved with finality, to
define the territorial jurisdiction of the proposed
barangays would only be an exercise in futility. Not only
that, we would be paving the way for potentially ultra
vires acts of such barangays. X x x
Moreover, considering the expenses entailed in the
holding of plebiscites, it is far more prudent to hold in
abeyance the conduct of the same, pending final
determination of whether or not the entire area of the
proposed barangays are truly within the territorial
jurisdiction of the City of Pasig.
Neither do we agree that merely because a plebiscite had
already been held in the case of the proposed Barangay
Napico, the petition of the Municipality of Cainta has
already been rendered moot and academic. The issue
raised by the Municipality of Cainta in its petition before
the COMELEC against the holding of the plebiscite for the
creation of Barangay Napico are still pending
determination before the Antipolo Regional Trial Court.
Xxx
Therefore, the plebiscite on the creation of Barangay
Karangalan should be held in abeyance pending final
resolution of the boundary dispute between the City of
Pasig and the Municipality of Cainta by the Regional Trial
Court of Antipolo City. In the same vein, the plebiscite
held on March 15, 1997 to ratify the creation of Barangay
Napico, Pasig City, should be annulled and set aside.
(City of Pasig v. COMELEC, 314 SCRA 179, Sept. 10,
1999, En Banc [Ynares-Santiago])
 PUBLIC INTERNATIONAL LAW
376. Discuss the contemporary view on the rightful
place of an Individual in International Law? Does he
remain a mere “object” of International Law, or is he now
a proper “subject” of International Law?
Held: Then came the long and still ongoing
debate on what should be the subject of international law.
The 20th century saw the dramatic rise and fall of different
types and hues of authoritarianism – the fascism of Italy’s
Mussolini and Germany’s Hitler, the militarism of Japan’s
Hirohito and the communism of Russia’s Stalin, etc. The
sinking of these isms led to the elevation of the rights of
the individual against the state. Indeed, some species of
human rights have already been accorded universal
recognition (See Universal Declaration of Human Rights
[1948], The International Covenant on Economic, Social
and Cultural Rights [1966] and The International
Covenant on Civil and Political Rights [1966]). Today, the
drive to internationalize rights of women and children is
also on high gear (The Convention on the Elimination of
All Forms of Discrimination Against Women [CEDAW]
otherwise known as “The Bill of Rights for
Women” was adopted by the UN General Assembly in
December 1979. As of November 1999, one hundred
sixty seven [167] states including the Philippines have
ratified or acceded to it. See Statement of Angela King,
Special Adviser to the Secretary General of the UN on
Gender Issues and Advancement of Women, Judicial
Colloquium on the Application of International Human
Rights Law at the Domestic Level, Vienna, Austria,
October 27, 1999). The higher rating given to human
rights on the hierarchy of values necessarily led to the re-
examination of the rightful place of the individual in
international law. Given the harshest eye is the moss-
covered doctrine that international law deals only with
States and that individuals are not its subject. For its
undesirable corollary is that sub-doctrine that an
individual’s right in international law is a near cipher.
Translated in extradition law, the view that once
commanded a consensus is that since a fugitive is a mere
object and not a subject of international law, he is bereft
of rights. An extraditee, so it was held, is a mere “object
transported from one state to the other as an exercise of
the sovereign will of the two states involved.” (Blakesley
and Lagodny, Finding Harmony Amidst Disagreement
Over Extradition, Jurisdiction, The Role of Human Rights
and Issues of Extraterritoriality Under International
Criminal Law, Vanderbilt Journal of Transnational Law,
Vol. 24, No. 1, p. 44 [1991]) The re-examination
consigned this pernicious doctrine to the museum of ideas
(See generally Kelsen, Principles of International Law, 2 nd
ed. [1966]; Korowicz, The Problem of the International
Personality of Individuals, 50 Am. J., Int’l. Law 553
[1966]). The new thinkers of international law then gave
a significant shape to the role and rights of the individual
in state-concluded treaties and other international
agreements. X x x (Concurring Opinion, Puno J., in
Jeffrey Liang [Huefeng] v. People, G.R. No.
125865, Mar. 26, 2001, 1st Div. [Motion for
Reconsideration])
377. What is the doctrine of incorporation? How is it
applied by local courts?
Held: Under the doctrine of incorporation, rules of
international law form part of the law of the land and no
further legislative action is needed to make such rules
applicable in the domestic sphere.
The doctrine of incorporation is applied whenever
municipal tribunals (or local courts) are confronted with
situations in which there appears to be a conflict between
a rule of international law and the provisions of the
Constitution or statute of the local state. Efforts should
first be exerted to harmonize them, so as to give effect to
both since it is to be presumed that municipal law was
enacted with proper regard for the generally accepted
principles of international law in observance of the
Incorporation Clause in Section 2, Article II of the
Constitution. In a situation however, where the conflict
is irreconcilable and a choice has to be made between a
rule of international law and municipal law, jurisprudence
dictates that municipal law should be upheld by the
municipal courts for the reason that such courts are
organs of municipal law and are accordingly bound by it
in all circumstances. The fact that international law has
been made part of the law of the land does not pertain to
or imply the primacy of international law over national or
municipal law in the municipal sphere. The doctrine of
incorporation, as applied in most countries, decrees that
rules of international law are given equal standing with,
but are not superior to, national legislative enactments.
Accordingly, the principle of lex posterior derogat priori
takes effect – a treaty may repeal a statute and a statute
may repeal a treaty. In states where the Constitution is
the highest law of the land, such as the Republic of the
Philippines, both statutes and treaties may be invalidated
if they are in conflict with the Constitution. (Secretary
of Justice v. Hon. Ralph C. Lantion, G.R. No.
139465, Jan. 18, 2000, En Banc [Melo])
378. Is sovereignty really absolute and all-
encompassing? If not, what are its restrictions and
limitations?
Held: While sovereignty has traditionally been deemed
absolute and all-encompassing on the domestic level, it is
however subject to restrictions and limitations voluntarily
agreed to by the Philippines, expressly or impliedly, as a
member of the family of nations. By the doctrine of
incorporation, the country is bound by generally accepted
principles of international law, which are considered to be
automatically part of our own laws. One of the oldest and
most fundamental rules in international law is pacta sunt
servanda – international agreements must be performed
in good faith. A state which has contracted valid
international obligations is bound to make in its
legislations such modifications as may be necessary to
ensure the fulfillment of the obligations.
By their inherent nature, treaties really limit or restrict the
absoluteness of sovereignty. By their voluntary act,
nations may surrender some aspects of their state power
in exchange for greater benefits granted by or derived
from a convention or pact. After all, states, like
individuals, live with coequals, and in pursuit of mutually
covenanted objectives and benefits, they also commonly
agree to limit the exercise of their otherwise absolute
rights. Thus, treaties have been used to record
agreements between States concerning such widely
diverse matters as, for example, the lease of naval bases,
the sale or cession of territory, the termination of war, the
regulation of conduct of hostilities, the formation of
alliances, the regulation of commercial relations, the
settling of claims, the laying down of rules governing
conduct in peace and the establishment of international
organizations. The sovereignty of a state therefore
cannot in fact and in reality be considered absolute.
Certain restrictions enter into the picture: (1) limitations
imposed by the very nature of membership in the family
of nations and (2) limitations imposed by treaty
stipulations. (Tanada v. Angara, 272 SCRA 18, May
2, 1997 [Panganiban])
379. What must a person who feels aggrieved by the
acts of a foreign sovereign do to espouse his cause?
Held: Private respondent is not left without any
legal remedy for the redress of its grievances. Under both
Public International Law and Transnational Law, a person
who feels aggrieved by the acts of a foreign sovereign can
ask his own government to espouse his cause through
diplomatic channels.
Private respondent can ask the Philippine
government, through the Foreign Office, to espouse its
claims against the Holy See. Its first task is to persuade
the Philippine government to take up with the Holy See
the validity of its claim. Of course, the Foreign Office shall
first make a determination of the impact of its espousal
on the relations between the Philippine government and
the Holy See (Young, Remedies of Private Claimants
Against Foreign States, Selected Readings on Protection
by Law of Private Foreign Investments 905, 919 [1964]).
Once the Philippine government decides to espouse the
claim, the latter ceases to be a private cause.
According to the Permanent Court of
International Justice, the forerunner of the International
Court of Justice:
“By taking up the case of one of its subjects and by
resorting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality asserting
its own rights - its right to ensure, in the person of its
subjects, respect for the rules of international law” (The
Mavrommatis Palestine Concessions, 1 Hudson, World
Court Reports 293, 302 [1924]).
(Holy See, The v. Rosario, Jr., 238 SCRA 524, 538-
539, Dec. 1, 1994, En Banc [Quiason])
380. Discuss the Status of the Vatican and the Holy
See in International Law.
Held: Before the annexation of the Papal States by Italy
in 1870, the Pope was the monarch and he, as the Holy
See, was considered a subject of International Law. With
the loss of the Papal States and the limitation of the
territory under the Holy See to an area of 108.7 acres, the
position of the Holy See in International Law became
controversial.
In 1929, Italy and the Holy See entered into the Lateran
Treaty, where Italy recognized the exclusive dominion
and sovereign jurisdiction of the Holy See over the Vatican
City. It also recognized the right of the Holy See to
receive foreign diplomats, to send its own diplomats to
foreign countries, and to enter into treaties according to
International Law.
The Lateran Treaty established the statehood of the
Vatican City “for the purpose of assuring to the Holy See
absolute and visible independence and of guaranteeing to
it indisputable sovereignty also in the field of international
relations.”
In view of the wordings of the Lateran Treaty, it is difficult
to determine whether the statehood is vested in the Holy
See or in the Vatican City. Some writers even suggested
that the treaty created two international persons - the
Holy See and Vatican City.
The Vatican City fits into none of the established
categories of states, and the attribution to it of
“sovereignty” must be made in a sense different from that
in which it is applied to other states. In a community of
national states, the Vatican City represents an entity
organized not for political but for ecclesiastical purposes
and international objects. Despite its size and object, the
Vatican City has an independent government of its own,
with the Pope, who is also head of the Roman Catholic
Church, as the Holy See or Head of State, in conformity
with its traditions, and the demands of its mission in the
world. Indeed, the world-wide interests and activities of
the Vatican City are such as to make it in a sense an
“international state.”
One authority wrote that the recognition of the Vatican
City as a state has significant implication - that it is
possible for any entity pursuing objects essentially
different from those pursued by states to be invested with
international personality.
Inasmuch as the Pope prefers to conduct foreign relations
and enter into transactions as the Holy See and not in the
name of the Vatican City, one can conclude that in the
Pope's own view, it is the Holy See that is the international
person.
The Republic of the Philippines has accorded the Holy See
the status of a foreign sovereign. The Holy See, through
its Ambassador, the Papal Nuncio, has had diplomatic
representations with the Philippine government since
1957. This appears to be the universal practice in
international relations. (Holy See, The v. Rosario, Jr.,
238 SCRA 524, 533-534, Dec. 1, 1994, En Banc
[Quiason])
381. What are international organizations? Discuss
their nature.
Held: International organizations are institutions
constituted by international agreement between two or
more States to accomplish common goals. The legal
personality of these international organizations has been
recognized not only in municipal law, but in international
law as well.
Permanent international commissions and administrative
bodies have been created by the agreement of a
considerable number of States for a variety of
international purposes, economic or social and mainly
non-political. In so far as they are autonomous and
beyond the control of any one State, they have distinct
juridical personality independent of the municipal law of
the State where they are situated. As such, they are
deemed to possess a species of international personality
of their own. (SEAFDEC-AQD v. NLRC, 206 SCRA
283, Feb. 14, 1992)
382. Discuss the basic immunities of international
organizations and the reason for affording them such
immunities.
Held: One of the basic immunities of an international
organization is immunity from local jurisdiction, i.e., that
it is immune from legal writs and processes issued by the
tribunals of the country where it is found. The obvious
reason for this is that the subjection of such an
organization to the authority of the local courts would
afford a convenient medium through which the host
government may interfere in their operations or even
influence or control its policies and decisions; besides,
such subjection to local jurisdiction would impair the
capacity of such body to discharge its responsibilities
impartially on behalf of its member-states. (SEAFDEC-
AQD v. NLRC, 206 SCRA 283, Feb. 4, 1992)
383. Discuss the two conflicting concepts of sovereign
immunity from suit.
Held: There are two conflicting concepts of sovereign
immunity, each widely held and firmly established.
According to the classical or absolute theory, a sovereign
cannot, without its consent, be made a respondent in the
courts of another sovereign. According to the newer or
restrictive theory, the immunity of the sovereign is
recognized only with regard to public acts or acts jure
imperii of a state, but not with regard to private acts or
acts jure gestionis.
Some states passed legislation to serve as guidelines for
the executive or judicial determination when an act may
be considered as jure gestionis. The United States passed
the Foreign Sovereign Immunities Act of 1976, which
defines a commercial activity as “either a regular course
of commercial conduct or a particular commercial
transaction or act.” Furthermore, the law declared that
the “commercial character of the activity shall be
determined by reference to the nature of the course of
conduct or particular transaction or act, rather than by
reference to its purpose.” The Canadian Parliament
enacted in 1982 an Act to Provide For State Immunity in
Canadian Courts. The Act defines a “commercial activity”
as any particular transaction, act or conduct or any
regular course of conduct that by reason of its nature, is
of a “commercial character.”
The restrictive theory, which is intended to be a solution
to the host of problems involving the issue of sovereign
immunity, has created problems of its own. Legal
treatises and the decisions in countries which follow the
restrictive theory have difficulty in characterizing whether
a contract of a sovereign state with a private party is an
act jure gestionis or an act jure imperii.
The restrictive theory came about because of the entry of
sovereign states into purely commercial activities
remotely connected with the discharge of governmental
functions. This is particularly true with respect to the
Communist states which took control of nationalized
business activities and international trading. (Holy See,
The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En
Banc [Quiason])
384. Cite some transactions by a foreign state with
private parties that were considered by the Supreme
Court as acts “jure imperii” and acts “jure gestionis.”
Held: This Court has considered the following
transactions by a foreign state with private parties as acts
jure imperii: (1) the lease by a foreign government of
apartment buildings for use of its military officers (Syquia
v. Lopez, 84 Phil. 312 [1949]); (2) the conduct of public
bidding for the repair of a wharf at a United States Naval
Station (United States of America v. Ruiz, supra.); and (3)
the change of employment status of base employees
(Sanders v. Veridiano, 162 SCRA 88 [1988]).
On the other hand, this Court has considered the
following transactions by a foreign state with private
parties as acts jure gestionis: (1) the hiring of a cook in
the recreation center, consisting of three restaurants, a
cafeteria, a bakery, a store, and a coffee and pastry shop
at the John Hay Air Station in Baguio City, to cater to
American servicemen and the general public (United
States of America v. Rodrigo, 182 SCRA 644 [1990]; and
(2) the bidding for the operation of barber shops in Clark
Air Base in Angeles City (United States of America v.
Guinto, 182 SCRA 644 [1990]). The operation of the
restaurants and other facilities open to the general public
is undoubtedly for profit as a commercial and not a
governmental activity. By entering into the employment
contract with the cook in the discharge of its proprietary
function, the United States government impliedly divested
itself of it sovereign immunity from suit. (Holy See, The
v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En
Banc [Quiason])
385. What should be the guidelines to determine what
activities and transactions shall be considered
“commercial” and as constituting acts “jure gestionis” by
a foreign state?
Held: In the absence of legislation defining what
activities and transactions shall be considered
“commercial” and as constituting acts jure gestionis, we
have to come out with our own guidelines, tentative they
may be.
Certainly, the mere entering into a contract by a foreign
state with a private party cannot be the ultimate test.
Such an act can only be the start of the inquiry. The
logical question is whether the foreign state is engaged in
the activity in the regular course of business. If the
foreign state is not engaged regularly in a business or
trade, the particular act or transaction must then be
tested by its nature. If the act is in pursuit of a sovereign
activity, or an incident thereof, then it is an act jure
imperii, especially when it is not undertaken for gain or
profit.
As held in United States of America v. Guinto (supra.) :
“There is no question that the United States of America,
like any other state, will be deemed to have impliedly
waived its non-suability if it has entered into a contract in
its proprietary or private capacity. It is only when the
contract involves its sovereign or governmental capacity
that no such waiver may be implied.”
(Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec.
1, 1994, En Banc [Quiason])
386. May the Holy See be sued for selling the land it
acquired by donation from the Archdiocese of Manila to
be made site of its mission or the Apostolic Nunciature in
the Philippines but which purpose cannot be
accomplished as the land was occupied by squatters who
refused to vacate the area?
Held: In the case at bench, if petitioner (Holy See) has
bought and sold lands in the ordinary course of a real
estate business, surely the said transaction can be
categorized as an act jure gestionis. However, petitioner
has denied that the acquisition and subsequent disposal
of Lot 5-A were made for profit but claimed that it
acquired said property for the site of its mission or the
Apostolic Nunciature in the Philippines. X x x
Lot 5-A was acquired by petitioner as a donation from the
Archdiocese of Manila. The donation was made not for
commercial purpose, but for the use of petitioner to
construct thereon the official place of residence of the
Papal Nuncio. The right of a foreign sovereign to acquire
property, real or personal, in a receiving state, necessary
for the creation and maintenance of its diplomatic
mission, is recognized in the 1961 Vienna Convention on
Diplomatic Relations. This treaty was concurred in by the
Philippine Senate and entered into force in the Philippines
on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is
granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action
relating to private immovable property situated in the
territory of the receiving state which the envoy holds on
behalf of the sending state for the purposes of the
mission. If this immunity is provided for a diplomatic
envoy, with all the more reason should immunity be
recognized as regards the sovereign itself, which in this
case is the Holy See.
The decision to transfer the property and the subsequent
disposal thereof are likewise clothed with a governmental
character. Petitioner did not sell Lot 5-A for profit or gain.
It merely wanted to dispose off the same because the
squatters living thereon made it almost impossible for
petitioner to use it for the purpose of the donation. (Holy
See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1,
1994, En Banc [Quiason])
387. How is sovereign or diplomatic immunity pleaded
in a foreign court?
Held: In Public International Law, when a state or
international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, it requests the
Foreign Office of the state where it is sued to convey to
the court that said defendant is entitled to immunity.
In the United States, the procedure followed is the
process of “suggestion,” where the foreign state or the
international organization sued in an American court
requests the Secretary of State to make a determination
as to whether it is entitled to immunity. If the Secretary
of State finds that the defendant is immune from suit, he,
in turn, asks the Attorney General to submit to the court
a “suggestion” that the defendant is entitled to immunity.
In England, a similar procedure is followed, only the
Foreign Office issues a certification to that effect instead
of submitting a “suggestion”.
In the Philippines, the practice is for the foreign
government or the international organization to first
secure an executive endorsement of its claim of sovereign
or diplomatic immunity. But how the Philippine Foreign
Office conveys its endorsement to the courts varies. In
International Catholic Migration Commission v. Calleja,
190 SCRA 130 (1990), the Secretary of Foreign Affairs just
sent a letter directly to the Secretary of Labor and
Employment, informing the latter that the respondent-
employer could not be sued because it enjoyed diplomatic
immunity. In World Health Organization v. Aquino, 48
SCRA 242 (1972), the Secretary of Foreign Affairs sent
the trial court a telegram to that effect. In Baer v. Tizon,
57 SCRA 1 (1974), the U.S. Embassy asked the Secretary
of Foreign Affairs to request the Solicitor General to make,
in behalf of the commander of the United States Naval
Base at Olongapo City, Zambales, a “suggestion” to
respondent Judge. The Solicitor General embodied the
“suggestion” in a Manifestation and Memorandum as
amicus curiae.
In the case at bench, the Department of Foreign Affairs,
through the Office of Legal Affairs moved with this Court
to be allowed to intervene on the side of petitioner. The
Court allowed the said Department to file its
memorandum in support of petitioner’s claim of sovereign
immunity.
In some cases, the defense of sovereign immunity was
submitted directly to the local courts by the respondents
through their private counsels. In cases where the
foreign states bypass the Foreign Office, the courts can
inquire into the facts and make their own determination
as to the nature of the acts and transactions involved.
(Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec.
1, 1994, En Banc [Quiason])
388. Is the determination of the executive branch of
the government that a state or instrumentality is entitled
to sovereign or diplomatic immunity subject to judicial
review, or is it a political question and therefore,
conclusive upon the courts?
Held: The issue of petitioner’s (The Holy See) non-
suability can be determined by the trial court without
going to trial in light of the pleadings x x x. Besides, the
privilege of sovereign immunity in this case was
sufficiently established by the Memorandum and
Certification of the Department of Foreign Affairs. As the
department tasked with the conduct of the Philippines’
foreign relations, the Department of Foreign Affairs has
formally intervened in this case and officially certified that
the Embassy of the Holy See is a duly accredited
diplomatic mission to the Republic of the Philippines
exempt from local jurisdiction and entitled to all the rights,
privileges and immunities of a diplomatic mission or
embassy in this country. The determination of the
executive arm of government that a state or
instrumentality is entitled to sovereign or diplomatic
immunity is a political question that is conclusive upon the
courts. Where the plea of immunity is recognized and
affirmed by the executive branch, it is the duty of the
courts to accept this claim so as not to embarrass the
executive arm of the government in conducting the
country’s foreign relations. As in International Catholic
Migration Commission and in World Health Organization,
we abide by the certification of the Department of Foreign
Affairs. (Holy See, The v. Rosario, Jr., 238 SCRA 524,
Dec. 1, 1994, En Banc [Quiason])
389. Discuss the Status of the Vatican and the Holy
See in International Law.
Held: Before the annexation of the Papal States
by Italy in 1870, the Pope was the monarch and he, as
the Holy See, was considered a subject of International
Law. With the loss of the Papal States and the limitation
of the territory under the Holy See to an area of 108.7
acres, the position of the Holy See in International Law
became controversial (Salonga and Yap, Public
International Law 36-37 [1992]).
In 1929, Italy and the Holy See entered into the
Lateran Treaty, where Italy recognized the exclusive
dominion and sovereign jurisdiction of the Holy See over
the Vatican City. It also recognized the right of the Holy
See to receive foreign diplomats, to send its own
diplomats to foreign countries, and to enter into treaties
according to International Law (Garcia, Questions and
Problems in International Law, Public and Private 81
[1948]).
The Lateran Treaty established the statehood of
the Vatican City "for the purpose of assuring to the Holy
See absolute and visible independence and of
guaranteeing to it indisputable sovereignty also in the
field of international relations" (O'Connell, I International
Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it
is difficult to determine whether the statehood is vested
in the Holy See or in the Vatican City. Some writers even
suggested that the treaty created two international
persons - the Holy See and Vatican City (Salonga and Yap,
supra, 37).
The Vatican City fits into none of the established
categories of states, and the attribution to it of
“sovereignty” must be made in a sense different from that
in which it is applied to other states (Fenwick,
International Law 124-125 [1948]; Cruz, International
Law 37 [1991]). In a community of national states, the
Vatican City represents an entity organized not for
political but for ecclesiastical purposes and international
objects. Despite its size and object, the Vatican City has
an independent government of its own, with the Pope,
who is also head of the Roman Catholic Church, as the
Holy See or Head of State, in conformity with its
traditions, and the demands of its mission in the world.
Indeed, the world-wide interests and activities of the
Vatican City are such as to make it in a sense an
“international state” (Fenwick, supra, 125; Kelsen,
Principles of International Law 160 [1956]).
One authority wrote that the recognition of the
Vatican City as a state has significant implication - that it
is possible for any entity pursuing objects essentially
different from those pursued by states to be invested with
international personality (Kunz, The Status of the Holy
See in International Law, 46 The American Journal of
International Law 308 [1952]).
Inasmuch as the Pope prefers to conduct foreign
relations and enter into transactions as the Holy See and
not in the name of the Vatican City, one can conclude that
in the Pope's own view, it is the Holy See that is the
international person.
The Republic of the Philippines has accorded the
Holy See the status of a foreign sovereign. The Holy See,
through its Ambassador, the Papal Nuncio, has had
diplomatic representations with the Philippine
government since 1957. This appears to be the universal
practice in international relations. (Holy See, The v.
Rosario, Jr., 238 SCRA 524, 533-534, Dec. 1, 1994,
En Banc [Quiason])
390. What is extradition? To whom does it apply?
Held: It is the “process by which persons charged with
or convicted of crime against the law of a State and found
in a foreign State are returned by the latter to the former
for trial or punishment. It applies to those who are merely
charged with an offense but have not been brought to
trial; to those who have been tried and convicted and
have subsequently escaped from custody; and those who
have been convicted in absentia. It does not apply to
persons merely suspected of having committed an
offense but against whom no charge has been laid or to
a person whose presence is desired as a witness or for
obtaining or enforcing a civil judgment.” (Weston, Falk,
D' Amato, International Law and Order, 2nd ed., p.
630 [1990], cited in Dissenting Opinion, Puno, J.,
in Secretary of Justice v. Hon. Ralph C. Lantion,
G.R. No. 139465, Jan. 18, 2000, En Banc)
391. Discuss the basis for allowing extradition.
Held: Extradition was first practiced by the Egyptians,
Chinese, Chaldeans and Assyro-Babylonians but their
basis for allowing extradition was unclear. Sometimes, it
was granted due to pacts; at other times, due to plain
good will. The classical commentators on international
law thus focused their early views on the nature of the
duty to surrender an extraditee --- whether the duty is
legal or moral in character. Grotius and Vattel led the
school of thought that international law imposed a legal
duty called civitas maxima to extradite criminals. In sharp
contrast, Puffendorf and Billot led the school of thought
that the so-called duty was but an "imperfect obligation
which could become enforceable only by a contract or
agreement between states.
Modern nations tilted towards the view of Puffendorf and
Billot that under international law there is no duty to
extradite in the absence of treaty, whether bilateral or
multilateral. Thus, the US Supreme Court in US v.
Rauscher (119 US 407, 411, 7 S Ct. 234, 236, 30 L. ed.
425 [1886]), held: “x x x it is only in modern times that
the nations of the earth have imposed upon themselves
the obligation of delivering up these fugitives from justice
to the states where their crimes were committed, for trial
and punishment. This has been done generally by
treaties x x x Prior to these treaties, and apart from them
there was no well-defined obligation on one country to
deliver up such fugitives to another; and though such
delivery was often made it was upon the principle of
comity x x x.” (Dissenting Opinion, Puno, J., in
Secretary of Justice v. Hon. Ralph C. Lantion, G.R.
No. 139465, Jan. 18, 2000, En Banc)
392. What is the nature of an extradition proceeding?
Is it akin to a criminal proceeding?
Held: [A]n extradition proceeding is sui generis. It is not
a criminal proceeding which will call into operation all the
rights of an accused as guaranteed by the Bill of Rights.
To begin with, the process of extradition does not involve
the determination of the guilt or innocence of an accused.
His guilt or innocence will be adjudged in the court of the
state where he will be extradited. Hence, as a rule,
constitutional rights that are only relevant to determine
the guilt or innocence of an accused cannot be invoked
by an extraditee especially by one whose extradition
papers are still undergoing evaluation. As held by the US
Supreme Court in United States v. Galanis:
“An extradition proceeding is not a criminal prosecution,
and the constitutional safeguards that accompany a
criminal trial in this country do not shield an accused from
extradition pursuant to a valid treaty.” (Wiehl, Extradition
Law at the Crossroads: The Trend Toward Extending
Greater Constitutional Procedural Protections To Fugitives
Fighting Extradition from the United States, 19 Michigan
Journal of International Law 729, 741 [1998], citing
United States v. Galanis, 429 F. Supp. 1215 [D. Conn.
1977])

There are other differences between an extradition
proceeding and a criminal proceeding. An extradition
proceeding is summary in natural while criminal
proceedings involve a full-blown trial. In contradistinction
to a criminal proceeding, the rules of evidence in an
extradition proceeding allow admission of evidence under
less stringent standards. In terms of the quantum of
evidence to be satisfied, a criminal case requires proof
beyond reasonable doubt for conviction while a fugitive
may be ordered extradited “upon showing of the
existence of a prima facie case.” Finally, unlike in a
criminal case where judgment becomes executory upon
being rendered final, in an extradition proceeding, our
courts may adjudge an individual extraditable but the
President has the final discretion to extradite him . The
United States adheres to a similar practice whereby the
Secretary of State exercises wide discretion in balancing
the equities of the case and the demands of the nation's
foreign relations before making the ultimate decision to
extradite.
As an extradition proceeding is not criminal in character
and the evaluation stage in an extradition proceeding is
not akin to a preliminary investigation, the due process
safeguards in the latter do not necessarily apply to the
former. This we hold for the procedural due process
required by a given set of circumstances “must begin with
a determination of the precise nature of the government
function involved as well as the private interest that has
been affected by governmental action.” The concept of
due process is flexible for “not all situations calling for
procedural safeguards call for the same kind of
procedure.” (Secretary of Justice v. Hon. Ralph C.
Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc
[Puno])
393. Will the retroactive application of an extradition
treaty violate the constitutional prohibition against "ex
post facto" laws?
Held: The prohibition against ex post facto law applies
only to criminal legislation which affects the substantial
rights of the accused. This being so, there is no merit in
the contention that the ruling sustaining an extradition
treaty’s retroactive application violates the constitutional
prohibition against ex post facto laws. The treaty is
neither a piece of criminal legislation nor a criminal
procedural statute. (Wright v. CA, 235 SCRA 341,
Aug. 15, 1994 [Kapunan])
394. Discuss the rules in the interpretation of
extradition treaties.
Held: [A]ll treaties, including the RP-US Extradition
Treaty, should be interpreted in light of their intent.
Nothing less than the Vienna Convention on the Law of
Treaties to which the Philippines is a signatory provides
that “a treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in light of its object
and purpose.” X x x. It cannot be gainsaid that today,
countries like the Philippines forge extradition treaties to
arrest the dramatic rise of international and transnational
crimes like terrorism and drug trafficking. Extradition
treaties provide the assurance that the punishment of
these crimes will not be frustrated by the frontiers of
territorial sovereignty. Implicit in the treaties should be
the unbending commitment that the perpetrators of these
crimes will not be coddled by any signatory state.
It ought to follow that the RP-US Extradition Treaty calls
for an interpretation that will minimize if not prevent the
escape of extraditees from the long arm of the law and
expedite their trial. X x x
[A]n equally compelling factor to consider is the
understanding of the parties themselves to the RP-US
Extradition Treaty as well as the general interpretation of
the issue in question by other countries with similar
treaties with the Philippines . The rule is recognized that
while courts have the power to interpret treaties, the
meaning given them by the departments of government
particularly charged with their negotiation and
enforcement is accorded great weight. The reason for
the rule is laid down in Santos III v. Northwest Orient
Airlines, et al. (210 SCRA 256, 261 [1992]), where we
stressed that a treaty is a joint executive-legislative act
which enjoys the presumption that “it was first carefully
studied and determined to be constitutional before it was
adopted and given the force of law in the country.”
(Secretary of Justice v. Hon. Ralph C. Lantion, G.R.
No. 139465, Oct. 17, 2000, En Banc [Puno])
395. Is respondent Mark Jimenez entitled to bail
during the pendency of the Extradition Proceeding?
Held: We agree with petitioner. As suggested by the
use of the word “conviction,” the constitutional provision
on bail x x x, as well as Section 4 of Rule 114 of the Rules
of Court, applies only when a person has been arrested
and detained for violation of Philippine criminal laws. It
does not apply to extradition proceedings, because
extradition courts do not render judgments of conviction
or acquittal.
Moreover, the constitutional right to bail “flows
from the presumption of innocence in favor of every
accused who should not be subjected to the loss of
freedom as thereafter he would be entitled to acquittal,
unless his guilt be proved beyond reasonable doubt.” (De
la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971,
per Fernando, Jr. [later CJ]) It follows that the
constitutional provision on bail will not apply to a case like
extradition, where the presumption of innocence is not an
issue.
The provision in the Constitution stating that the right to
bail shall not be impaired even when the privilege of the
writ of habeas corpus is suspended” does not detract from
the rule that the constitutional right to bail is available
only in criminal proceedings. It must be noted that the
suspension of the privilege of the writ of habeas corpus
finds application “only to persons judicially charged for
rebellion or offenses inherent in or directly connected with
invasion.” (Sec. 18, Article VII, Constitution) Hence, the
second sentence in the constitutional provision on bail
merely emphasizes the right to bail in criminal
proceedings for the aforementioned offenses. It cannot
be taken to mean that the right is available even in
extradition proceedings that are not criminal in nature.
That the offenses for which Jimenez is sought to be extradited
are bailable in the United States is not an argument to grant him
one in the present case. To stress, extradition proceedings are
separate and distinct from the trial for the offenses for which he
is charged. He should apply for bail before the courts trying the
criminal cases against him, not before the extradition court.
(Government of the United States of America v. Hon.
Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En
Banc [Panganiban])
396. What is the exception to the “No Bail” Rule in
Extradition Proceedings?
Held: The rule x x x is that bail is not a matter of right
in extradition cases. However, the judiciary has the
constitutional duty to curb grave abuse of discretion and
tyranny, as well as the power to promulgate rules to
protect and enforce constitutional rights. Furthermore,
we believe that the right to due process is broad enough
to include the grant of basic fairness to extraditees.
Indeed, the right to due process extends to the “life,
liberty or property” of every person. It is “dynamic and
resilient, adaptable to every situation calling for its
application.” (I.A. Cruz, Constitutional Law, 1998 ed., p.
98)
Accordingly and to best serve the ends of justice, we
believe and so hold that, after a potential extraditee has been
arrested or placed under the custody of the law, bail may be
applied for and granted as an exception, only upon a clear and
convincing showing (1) that, once granted bail, the applicant
will not be a flight risk or a danger to the community; and (2)
that there exist special, humanitarian and compelling
circumstances including, as a matter of reciprocity, those cited
by the highest court in the requesting state when it grants
provisional liberty in extradition cases therein.
Since this exception has no express or specific
statutory basis, and since it is derived essentially from general
principles of justice and fairness, the applicant bears the
burden of proving the above two-tiered requirement with
clarity, precision and emphatic forcefulness. The Court
realizes that extradition is basically an executive, not a
judicial, responsibility arising from the presidential power to
conduct foreign relations. In its barest concept, it partakes of
the nature of police assistance amongst states, which is not
normally a judicial prerogative. Hence, any intrusion by the
courts into the exercise of this power should be characterized
by caution, so that the vital international and bilateral interests
of our country will not be unreasonably impeded or
compromised. In short, while this Court is ever protective of
“the sporting idea of fair play,” it also recognizes the limits of
its own prerogatives and the need to fulfill international
obligations. (Government of the United States of America v.
Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002,
En Banc [Panganiban])
397. Are there special circumstances compelling
enough for the Court to grant Mark Jimenez’s request
for provisional release on bail?
Held: Along this line, Jimenez contends that there are
special circumstances that are compelling enough for the
Court to grant his request for provisional release on bail.
We have carefully examined these circumstances and
shall now discuss them.
1. Alleged Disenfranchisement
While his extradition was pending, Respondent
Jimenez was elected as a member of the House of
Representatives. On that basis, he claims that his
detention will disenfranchise his Manila district of
600,000 residents. We are not persuaded. In People v.
Jalosjos (324 SCRA 689, February 3, 2000, per Ynares-
Santiago, J.), the Court has already debunked the
disenfranchisement argument x x x.
It must be noted that even before private
respondent ran for and won a congressional seat in
Manila, it was already of public knowledge that the
United States was requesting his extradition. Hence, his
constituents were or should have been prepared for the
consequences of the extradition case against their
representative, including his detention pending the final
resolution of the case. Premises considered and in line
with Jalosjos, we are constrained to rule against his
claim that his election to public office is by itself a
compelling reason to grant him bail.
2. Anticipated Delay
Respondent Jimenez further contends that
because the extradition proceedings are lengthy, it
would be unfair to confine him during the pendency of
the case. Again we are not convinced. We must
emphasize that extradition cases are summary in nature.
They are resorted to merely to determine whether the
extradition petition and its annexes conform to the
Extradition Treaty, not to determine his guilt or
innocence. Neither is it, as a rule, intended to address
issues relevant to the constitutional rights available to
the accused in a criminal action.
We are not overruling the possibility that
petitioner may, in bad faith, unduly delay the
proceedings. This is quite another matter that is not at
issue here. Thus, any further discussion of this point
would be merely anticipatory and academic.
However, if the delay is due to maneuverings of
respondent, with all the more reason would the grant of
bail not be justified. Giving premium to delay by
considering it as a special circumstance for the grant of
bail would be tantamount to giving him the power to
grant bail to himself. It would also encourage him to
stretch out and unreasonably delay the extradition
proceedings even more. This we cannot allow.
3. Not a Flight Risk?
Jimenez further claims that he is not a flight
risk. To support this claim, he stresses that he learned
of the extradition request in June 1999; yet, he has not
fled the country. True, he has not actually fled during
the preliminary stages of the request for his extradition.
Yet, this fact cannot be taken to mean that he will not
flee as the process moves forward to its conclusion, as
he hears the footsteps of the requesting government
inching closer and closer. That he has not yet fled from
the Philippines cannot be taken to mean that he will
stand his ground and still be within reach of our
government if and when it matters; that is, upon the
resolution of the Petition for Extradition.
In any event, it is settled that bail may be
applied for and granted by the trial court at anytime
after the applicant has been taken into custody and prior
to judgment, even after bail has been previously denied.
In the present case, the extradition court may continue
hearing evidence on the application for bail, which may
be granted in accordance with the guidelines in this
Decision. (Government of the United States of
America v. Hon. Guillermo Purganan, G.R. No.
148571, Sept. 24, 2002, En Banc [Panganiban])
398. Discuss the Five Postulates of Extradition.
Held:
1. Extradition Is a Major Instrument for the Suppression
of Crime.
First, extradition treaties are entered into for the
purpose of suppressing crime by facilitating the arrest and
custodial transfer (Bassiouni, International Extradition,
1987 ed., p. 68) of a fugitive from one state to the other.
With the advent of easier and faster means of
international travel, the flight of affluent criminals from
one country to another for the purpose of committing
crime and evading prosecution has become more
frequent. Accordingly, governments are adjusting their
methods of dealing with criminals and crimes that
transcend international boundaries.
Today, “a majority of nations in the world
community have come to look upon extradition as the
major effective instrument of international co-operation in
the suppression of crime.” (Bassiouni, supra, p. 21) It is
the only regular system that has been devised to return
fugitives to the jurisdiction of a court competent to try
them in accordance with municipal and international law
(Id., p. 67).
Xxx
Indeed, in this era of globalization, easier and
faster international travel, and an expanding ring of
international crimes and criminals, we cannot afford to be
an isolationist state. We need to cooperate with other
states in order to improve our chances of suppressing
crime in our country.
2. The Requesting State Will Accord Due Process
to the Accused.
Second, an extradition treaty presupposes that
both parties thereto have examined, and that both accept
and trust, each other’s legal system and judicial process
(Coquia, “On Implementation of the RP-US Extradition
Treaty,” The Lawyers Review, August 31, 2000, p. 4).
More pointedly, our duly authorized representative’s
signature on an extradition treaty signifies our confidence
in the capacity and willingness of the other state to
protect the basic rights of the person sought to be
extradited (See Bassiouni, p. 546; citing 221 US 508, 512
[1910]). That signature signifies our full faith that the
accused will be given, upon extradition to the requesting
state, all relevant and basic rights in the criminal
proceedings that will take place therein; otherwise, the
treaty would not have been signed, or would have been
directly attacked for its unconstitutionality.
3. The Proceedings Are Sui Generis.
Third, as pointed out in Secretary of Justice v.
Lantion (Supra), extradition proceedings are not criminal
in nature. In criminal proceedings, the constitutional
rights of the accused are at fore; in extradition which is
sui generis – in a class by itself – they are not.
Xxx
Given the foregoing, it is evident that the
extradition court is not called upon to ascertain the guilt
or the innocence of the person sought to be extradited
(Secretary of Justice v. Lantion, supra.). Such
determination during the extradition proceedings will only
result in needless duplication and delay. Extradition is
merely a measure of international judicial assistance
through which a person charged with or convicted of a
crime is restored to a jurisdiction with the best claim to
try that person. It is not part of the function of the
assisting authorities to enter into questions that are the
prerogative of that jurisdiction (Shearer, Extradition in
International Law, 1971 ed., p. 157). The ultimate
purpose of extradition proceedings in court is only to
determine whether the extradition request complies with
the Extradition Treaty, and whether the person sought is
extraditable (Id., p. 545).
4. Compliance Shall Be in Good Faith.
Fourth, our executive branch of government voluntarily
entered into the Extradition Treaty, and our legislative
branch ratified it. Hence, the Treaty carries the
presumption that its implementation will serve the
national interest.
Fulfilling our obligations under the Extradition Treaty promotes
comity (In line with the Philippine policy of cooperation and
amity with all nations set forth in Article II, Section 2,
Constitution). On the other hand, failure to fulfill our
obligations thereunder paints at bad image of our country before
the world community. Such failure would discourage other
states from entering into treaties with us, particularly an
extradition treaty that hinges on reciprocity.
Verily, we are bound by pacta sunt servanda to comply in
good faith with our obligations under the Treaty
(Secretary of Justice v. Lantion, supra.). This principle
requires that we deliver the accused to the requesting
country if the conditions precedent to extradition, as set
forth in the Treaty, are satisfied. In other words, “[t]he
demanding government, when it has done all that the
treaty and the law require it to do, is entitled to the
delivery of the accused on the issue of the proper warrant,
and the other government is under obligation to make the
surrender.” (Wright v. Henkel, 190 U.S. 40, 62, March 23,
1903) Accordingly, the Philippines must be ready and in
a position to deliver the accused, should it be found
proper.
5. There Is an Underlying Risk of Flight.
Fifth, persons to be extradited are presumed to be flight
risks. This prima facie presumption finds reinforcement
in the experience of the executive branch: nothing short
of confinement can ensure that the accused will not flee
the jurisdiction of the requested state in order to thwart
their extradition to the requesting state.
The present extradition case further validates the premise
that persons sought to be extradited have a propensity to
flee. Indeed, extradition hearings would not even begin,
if only the accused were willing to submit to trial in the
requesting country (Persily, “International Extradition and
the Right to Bail,” 34 Stan. J. Int’l L. 407 [Summer 1988]).
Prior acts of herein respondent – (1) leaving the
requesting state right before the conclusion of his
indictment proceedings there; and (2) remaining in the
requested state despite learning that the requesting state
is seeking his return and that the crimes he is charged
with are bailable – eloquently speak of his aversion to the
processes in the requesting state, as well as his
predisposition to avoid them at all cost. These
circumstances point to an ever-present, underlying high
risk of flight. He has demonstrated that he has the
capacity and the will to flee. Having fled once, what is
there to stop him, given sufficient opportunity, from
fleeing a second time? (Government of the United
States of America v. Hon. Guillermo Purganan, G.R.
No. 148571, Sept. 24, 2002, En Banc
[Panganiban])
399. Discuss the Ten Points to consider in Extradition
Proceedings?
Held: 1. The ultimate purpose of extradition
proceedings is to determine whether the request
expressed in the petition, supported by its annexes and
the evidence that may be adduced during the hearing of
the petition, complies with the Extradition Treaty and
Law; and whether the person sought is extraditable. The
proceedings are intended merely to assist the requesting
state in bringing the accused – or the fugitive who has
illegally escaped – back to its territory, so that the criminal
process may proceed therein.
2. By entering into an extradition treaty, the Philippines
is deemed to have reposed its trust in the reliability or
soundness of the legal and judicial system of its treaty
partner; as well as in the ability and the willingness of
the latter to grant basic rights to the accused in the
pending criminal case therein.
3. By nature then, extradition proceedings are not
equivalent to a criminal case in which guilt or innocence
is determined. Consequently, an extradition case is not
one in which the constitutional rights of the accused are
necessarily available. It is more akin, if at all, to a
court’s request to police authorities for the arrest of the
accused who is at large or has escaped detention or
jumped bail. Having once escaped the jurisdiction of the
requesting state, the reasonable prima facie
presumption is that the person would escape again if
given the opportunity.
4. Immediately upon receipt of the petition for
extradition and its supporting documents, the judge
shall make a prima facie finding whether the petition is
sufficient in form and substance, whether it complies
with the Extradition Treaty and Law, and whether the
person sought is extraditable. The magistrate has
discretion to require the petitioner to submit further
documentation, or to personally examine the affiants or
witnesses. If convinced that a prima facie case exists,
the judge immediately issues a warrant for the arrest of
the potential extraditee and summons him or her to
answer and to appear at scheduled hearings on the
petition.
5. After being taken into custody, potential extraditees
may apply for bail. Since the applicants have a history
of absconding, they have the burden of showing that (a)
there is no flight risk and no danger to the community;
and (b) there exist special, humanitarian or compelling
circumstances. The grounds used by the highest court
in the requesting state for the grant of bail therein may
be considered, under the principle of reciprocity as a
special circumstance. In extradition cases, bail is not a
matter of right; it is subject to judicial discretion in the
context of the peculiar facts of each case.
6. Potential extraditees are entitled to the rights to due
process and to fundamental fairness. Due process does
not always call for a prior opportunity to be heard. A
subsequent opportunity is sufficient due to the flight risk
involved. Indeed, available during the hearings on the
petition and the answer is the full chance to be heard
and to enjoy fundamental fairness that is compatible
with the summary nature of extradition.
7. This Court will always remain a protector of human
rights, a bastion of liberty, a bulwark of democracy and
the conscience of society. But it is also well aware of
the limitations of its authority and of the need for
respect for the prerogatives of the other co-equal and
co-independent organs of government.
8. We realize that extradition is essentially an executive,
not a judicial, responsibility arising out of the
presidential power to conduct foreign relations and to
implement treaties. Thus, the Executive Department of
government has broad discretion in its duty and power
of implementation.
9. On the other hand, courts merely perform oversight
functions and exercise review authority to prevent or
excise grave abuse and tyranny. They should not allow
contortions, delays and “over-due process” every little
step of the way, lest these summary extradition
proceedings become not only inutile but also sources of
international embarrassment due to our inability to
comply in good faith with a treaty partner’s simple
request to return a fugitive. Worse, our country should
not be converted into a dubious haven where fugitives
and escapees can unreasonably delay, mummify, mock,
frustrate, checkmate and defeat the quest for bilateral
justice and international cooperation.
10. At bottom, extradition proceedings should be
conducted with all deliberate speed to determine
compliance with the Extradition Treaty and Law; and,
while safeguarding basic individual rights, to avoid the
legalistic contortions, delays and technicalities that may
negate that purpose. (Government of the United
States of America v. Hon. Guillermo Purganan,
G.R. No. 148571, Sept. 24, 2002, En Banc
[Panganiban])
400. What is a Treaty? Discuss.
Held: A treaty, as defined by the Vienna Convention on
the Law of Treaties, is “an international instrument
concluded between States in written form and governed
by international law, whether embodied in a single
instrument or in two or more related instruments, and
whatever its particular designation.” There are many
other terms used for a treaty or international agreement,
some of which are: act, protocol, agreement, compromis
d' arbitrage, concordat, convention, declaration,
exchange of notes, pact, statute, charter and modus
vivendi. All writers, from Hugo Grotius onward, have
pointed out that the names or titles of international
agreements included under the general term treaty have
little or no significance. Certain terms are useful, but they
furnish little more than mere description
Article 2(2) of the Vienna Convention provides that “the
provisions of paragraph 1 regarding the use of terms in
the present Convention are without prejudice to the use
of those terms, or to the meanings which may be given
to them in the internal law of the State.” (BAYAN
[Bagong Alyansang Makabayan] v. Executive
Secretary Ronaldo Zamora, G.R. No. 138570, Oct.
10, 2000, En Banc [Buena])
401. Discuss the binding effect of treaties and
executive agreements in international law.
Held: [I]n international law, there is no difference
between treaties and executive agreements in their
binding effect upon states concerned, as long as the
functionaries have remained within their powers .
International law continues to make no distinction
between treaties and executive agreements: they are
equally binding obligations upon nations. (BAYAN
[Bagong Alyansang Makabayan] v. Executive
Secretary Ronaldo Zamora, G.R. No. 138570, Oct.
10, 2000, En Banc [Buena])
402. Does the Philippines recognize the binding effect
of executive agreements even without the concurrence of
the Senate or Congress?
Held: In our jurisdiction, we have recognized the binding
effect of executive agreements even without the
concurrence of the Senate or Congress. In Commissioner
of Customs v. Eastern Sea Trading (3 SCRA 351, 356-357
[1961]), we had occasion to pronounce:
“x x x the right of the Executive to enter into binding
agreements without the necessity of subsequent
Congressional approval has been confirmed by long
usage. From the earliest days of our history we have
entered into executive agreements covering such subjects
as commercial and consular relations, most-favored-
nation rights, patent rights, trademark and copyright
protection, postal and navigation arrangements and the
settlement of claims. The validity of these has never
been seriously questioned by our courts. "
(BAYAN [Bagong Alyansang Makabayan] v.
Executive Secretary Ronaldo Zamora, G.R. No.
138570, Oct. 10, 2000, En Banc [Buena])
403. What is a "protocol de cloture"? Will it require
concurrence by the Senate?
Held: A final act, sometimes called protocol de cloture,
is an instrument which records the winding up of the
proceedings of a diplomatic conference and usually
includes a reproduction of the texts of treaties,
conventions, recommendations and other acts agreed
upon and signed by the plenipotentiaries attending the
conference. It is not the treaty itself. It is rather a
summary of the proceedings of a protracted conference
which may have taken place over several years. It will
not require the concurrence of the Senate. The
documents contained therein are deemed adopted
without need for ratification. (Tanada v. Angara, 272
SCRA 18, May 2, 1997 [Panganiban])
404. What is the “most-favored-nation” clause? What
is its purpose?
Answer: 1. The most-favored-nation clause may be
defined, in general, as a pledge by a contracting party to
a treaty to grant to the other party treatment not less
favorable than that which has been or may be granted to
the “most favored” among other countries. The clause
has been commonly included in treaties of commercial
nature.
There are generally two types of most-favored-nation
clause, namely, conditional and unconditional. According
to the clause in its unconditional form, any advantage of
whatever kind which has been or may in future be granted
by either of the contracting parties to a third State shall
simultaneously and unconditionally be extended to the
other under the same or equivalent conditions as those
under which it has been granted to the third State.
(Salonga & Yap, Public International Law, 5th
Edition, 1992, pp. 141-142)
2. The purpose of a most favored nation clause is to grant
to the contracting party treatment not less favorable than
that which has been or may be granted to the "most
favored" among other countries. The most favored nation
clause is intended to establish the principle of equality of
international treatment by providing that the citizens or
subjects of the contracting nations may enjoy the
privileges accorded by either party to those of the most
favored nation (Commissioner of Internal Revenue
v. S.C. Johnson and Son, Inc., 309 SCRA 87, 107-
108, June 25, 1999, 3rd Div. [Gonzaga-Reyes])
405. What is the essence of the principle behind the
"most-favored-nation" clause as applied to tax treaties?
Held: The essence of the principle is to allow the
taxpayer in one state to avail of more liberal provisions
granted in another tax treaty to which the country of
residence of such taxpayer is also a party provided that
the subject matter of taxation x x x is the same as that in
the tax treaty under which the taxpayer is liable.
In Commissioner of Internal Revenue v. S.C.
Johnson and Son, Inc., 309 SCRA 87, June 25,
1999, the SC did not grant the claim filed by S.C. Johnson
and Son, Inc., a non-resident foreign corporation based
in the USA, with the BIR for refund of overpaid
withholding tax on royalties pursuant to the most-
favored-nation clause of the RP-US Tax Treaty in relation
to the RP-West Germany Tax Treaty. It held:
Given the purpose underlying tax treaties and the
rationale for the most favored nation clause, the
concessional tax rate of 10 percent provided for in the RP-
Germany Tax Treaty should apply only if the taxes
imposed upon royalties in the RP-US Tax Treaty and in
the RP-Germany Tax Treaty are paid under similar
circumstances. This would mean that private respondent
(S.C. Johnson and Son, Inc.) must prove that the RP-US
Tax Treaty grants similar tax reliefs to residents of the
United States in respect of the taxes imposable upon
royalties earned from sources within the Philippines as
those allowed to their German counterparts under the RP-
Germany Tax Treaty.
The RP-US and the RP-West Germany Tax Treaties do not
contain similar provisions on tax crediting. Article 24 of
the RP-Germany Tax Treaty x x x expressly allows
crediting against German income and corporation tax of
20% of the gross amount of royalties paid under the law
of the Philippines. On the other hand, Article 23 of the
RP-US Tax Treaty, which is the counterpart provision with
respect to relief for double taxation, does not provide for
similar crediting of 20% of the gross amount of royalties
paid. X x x
X x x The entitlement of the 10% rate by U.S. firms
despite the absence of matching credit (20% for
royalties) would derogate from the design behind the
most favored nation clause to grant equality of
international treatment since the tax burden laid upon the
income of the investor is not the same in the two
countries. The similarity in the circumstances of payment
of taxes is a condition for the enjoyment of most favored
nation treatment precisely to underscore the need for
equality of treatment.
406. What is ratification? Discuss its function in the
treaty-making process.
Held: Ratification is generally held to be an executive
act, undertaken by the head of state or of the
government, as the case may be, through which the
formal acceptance of the treaty is proclaimed. A State
may provide in its domestic legislation the process of
ratification of a treaty. The consent of the State to be
bound by a treaty is expressed by ratification when: (a)
the treaty provides for such ratification, (b) it is otherwise
established that the negotiating States agreed that
ratification should be required, (c) the representative of
the State has signed the treaty subject to ratification, or
(d) the intention of the State to sign the treaty subject to
ratification appears from the full powers of its
representative, or was expressed during the negotiation.
(BAYAN [Bagong Alyansang Makabayan] v.
Executive Secretary Ronaldo Zamora, G.R. No.
138570, Oct. 10, 2000, En Banc [Buena])
407. Explain the “pacta sunt servanda” rule.
Held: One of the oldest and most fundamental rules in
international law is pacta sunt servanda – international
agreements must be performed in good faith. “A treaty
engagement is not a mere moral obligation but creates a
legally binding obligation on the parties x x x. A state
which has contracted valid international obligations is
bound to make in its legislations such modifications as
may be necessary to ensure the fulfillment of the
obligations undertaken.” (Tanada v. Angara, 272
SCRA 18, May 2, 1997 [Panganiban])
408. Explain the "rebus sic stantibus" rule (i.e., things
remaining as they are). Does it operate automatically to
render a treaty inoperative?
Held: According to Jessup, the doctrine constitutes an
attempt to formulate a legal principle which would justify
non-performance of a treaty obligation if the conditions
with relation to which the parties contracted have
changed so materially and so unexpectedly as to create a
situation in which the exaction of performance would be
unreasonable. The key element of this doctrine is the vital
change in the condition of the contracting parties that
they could not have foreseen at the time the treaty was
concluded.
The doctrine of rebus sic stantibus does not operate
automatically to render the treaty inoperative. There is a
necessity for a formal act of rejection, usually made by
the head of state, with a statement of the reasons why
compliance with the treaty is no longer required.
(Santos III v. Northwest Orient Airlines, 210 SCRA
256, June 23, 1992)
409. What is the “doctrine of effective nationality”
(genuine link doctrine)?
Held: This principle is expressed in Article 5 of the Hague
Convention of 1930 on the Conflict of Nationality Laws as
follows:
Art. 5. Within a third State a person having more than
one nationality shall be treated as if he had only one.
Without prejudice to the application of its law in matters
of personal status and of any convention in force, a third
State shall, of the nationalities which any such person
possesses, recognize exclusively in its territory either the
nationality of the country in which he is habitually and
principally resident or the nationality of the country with
which in the circumstances he appears to be in fact most
closely connected. (Frivaldo v. COMELEC, 174 SCRA
245, June 23, 1989)
410. What are the conditions before foreign military
bases, troops, or facilities may be allowed in the
Philippines?
Ans.: After the expiration in 1991 of the
Agreement between the Republic of the Philippines and
the United States of America concerning Military Bases,
foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so
requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose,
and recognized as a treaty by the other contracting
State. (Sec. 25, Art. XVIII, 1987 Constitution)
411. Which provision of the Constitution applies with
regard to the exercise by the Senate of its constitutional
power to concur with the Visiting Forces Agreement
(VFA)?
Held: One focal point of inquiry in this controversy is the
determination of which provision of the Constitution
applies, with regard to the exercise by the Senate of its
constitutional power to concur with the VFA. Petitioners
argue that Section 25, Article XVIII is applicable
considering that the VFA has for its subject the presence
of foreign military troops in the Philippines. Respondents,
on the contrary, maintain that Section 21, Article VII
should apply inasmuch as the VFA is not a basing
arrangement but an agreement which involves merely the
temporary visits of United States personnel engaged in
joint military exercises.
The 1987 Philippine contains two provisions
requiring the concurrence of the Senate on treaties or
international agreements. Section 21, Article VII x x x
reads:
"No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all
the Members of the Senate."
 Section 25, Article XVIII, provides:
"After the expiration in 1991 of the Agreement between
the Republic of the Philippines and the United States of
America concerning Military Bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate
and, when the Congress so requires, ratified by a majority
of the votes cast by the people in a national referendum
held for that purpose, and recognized as a treaty by the
other contracting State."
Section 21, Article VII deals with treaties or
international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the
Members of the Senate is required to make the subject
treaty, or international agreement, valid and binding on
the part of the Philippines. This provision lays down the
general rule on treaties or international agreements and
applies to any form of treaty with a wide variety of subject
matter, such as, but not limited to, extradition or tax
treaties or those economic in nature. All treaties or
international agreements entered into by the Philippines,
regardless of subject matter, coverage, or particular
designation or appellation, requires the concurrence of
the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special
provision that applies to treaties which involve the
presence of foreign military bases, troops or facilities in
the Philippines. Under this provision, the concurrence of
the Senate is only one of the requisites to render
compliance with the constitutional requirements and to
consider the agreement binding on the Philippines.
Section 25, Article XVIII further requires that "foreign
military bases, troops, or facilities" may be allowed in the
Philippines only by virtue of a treaty duly concurred in by
the Senate, ratified by a majority of the votes cast in a
national referendum held for that purpose if so required
by Congress, and recognized as such by the other
contracting State.
It is our considered view that both constitutional
provisions, far from contradicting each other, actually
share some common ground. These constitutional
provisions both embody phrases in the negative and thus,
are deemed prohibitory in mandate and character. In
particular, Section 21 opens with the clause "No treaty x
x x," and Section 25 contains the phrase "shall not be
allowed." Additionally, in both instances, the concurrence
of the Senate is indispensable to render the treaty or
international agreement valid and effective.
To our mind, the fact that the President referred
the VFA to the Senate under Section 21, Article VII, and
that the Senate extended its concurrence under the same
provision, is immaterial. For in either case, whether under
Section 21, Article VII or Section 25, Article XVIII, the
fundamental law is crystalline that the concurrence of the
Senate is mandatory to comply with the strict
constitutional requirements.
On the whole, the VFA is an agreement which
defines the treatment of United States troops and
personnel visiting the Philippines. It provides for the
guidelines to govern such visits of military personnel, and
further defines the rights of the United States and the
Philippine government in the matter of criminal
jurisdiction, movement of vessels and aircraft,
importation and exportation of equipment, materials and
supplies.
Undoubtedly, Section 25, Article XVIII, which
specifically deals with treaties involving foreign military
bases, troops, or facilities, should apply in the instant
case. To a certain extent and in a limited sense, however,
the provisions of Section 21, Article VII will find
applicability with regard to the issue and for the sole
purpose of determining the number of votes required to
obtain the valid concurrence of the Senate x x x.
It is a finely-imbedded principle in statutory
construction that a special provision or law prevails over
a general one. Lex specialis derogat generali. Thus,
where there is in the same statute a particular enactment
and also a general one which, in its most comprehensive
sense, would include what is embraced in the former, the
particular enactment must be operative, and the general
enactment must be taken to affect only such cases within
its general language which are not within the provision of
the particular enactment (Manila Railroad Co. v. Collector
of Customs, 52 Phil. 950). (BAYAN [Bagong
Alyansang Makabayan] v. Executive Secretary
Ronaldo Zamora, G.R. No. 138570 and Companion
Cases, Oct. 10, 2000, 342 SCRA 449, 481-492, En
Banc [Buena])
412. Should the contention that since the VFA merely
involved the temporary visits of United States personnel
engaged in joint military exercises and not a basing
agreement, therefore, Sec. 21, Art. VII of the 1987
Constitution, and not Sec. 25, Art. XVIII, should apply to
the VFA, be upheld?
Held: It is specious to argue that Section 25,
Article XVIII is inapplicable to mere transient agreements
for the reason that there is no permanent placing of
structure for the establishment of a military base. On this
score, the Constitution makes no distinction between
"transient" and "permanent". Certainly, we find nothing
in Section 25, Article XVIII that requires foreign troops or
facilities to be stationed or placed permanently in the
Philippines.
It is a rudiment in legal hermeneutics that when
no distinction is made by law, the Court should not
distinguish - Ubi lex non distinguit nec nos distinguire
debemos.

In like manner, we do not subscribe to the
argument that Section 25, Article XVIII is not controlling
since no foreign military bases, but merely foreign troops
and facilities, are involved in the VFA. Notably, a perusal
of said constitutional provision revels that the proscription
covers "foreign military bases, troops, or facilities."
Stated differently, this prohibition is not limited to the
entry of troops and facilities without any foreign bases
being established. The clause does not refer to foreign
military bases, troops, or facilities" collectively but treats
them as separate and independent subjects. The use of
comma and disjunctive word "or" clearly signifies
disassociation and independence of one thing from the
others included in the enumeration (Castillo-Co v.
Barbers, 290 SCRA 717, 723 [1998]), such that, the
provision contemplates three different situations - a
military treaty the subject of which could be either (a)
foreign bases (b) foreign troops, or (c) foreign facilities -
any of the three standing alone places it under the
coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the
Charter, as manifested during the deliberations of the
1986 Constitutional Commission, is consistent with this
interpretation x x x.
Moreover, military bases established within the
territory of another state is no longer viable because of
the alternatives offered by new means and weapons of
warfare such as nuclear weapons, guided missiles as well
as huge sea vessels that can stay afloat in the sea even
for months and years without returning to their home
country. These military warships are actually used as
substitutes for a land-home base not only of military
aircraft but also of military personnel and facilities.
Besides, vessels are mobile as compared to a land-based
military headquarters. (BAYAN [Bagong Alyansang
Makabayan] v. Executive Secretary Ronaldo
Zamora, G.R. No. 138570 and Companion Cases,
Oct. 10, 2000, 342 SCRA 449, 481-492, En Banc
[Buena])
413. Were the requirements of Sec. 25, Art. XVIII of
the 1987 Constitution complied with when the Senate
gave its concurrence to the VFA?
Held: Section 25, Article XVIII disallows foreign military
bases, troops, or facilities in the country, unless the
following conditions are sufficiently met, viz: (a) it must
be under a treaty; (b) the treaty must be duly concurred
in by the Senate and, when so required by Congress,
ratified by a majority of the votes cast by the people in a
national referendum; and (c) recognized as a treaty by
the other contracting state.
There is no dispute as to the presence of the first two
requisites in the case of the VFA. The concurrence
handed by the Senate through Resolution No. 18 is in
accordance with the provisions of the Constitution,
whether under the general requirement in Section 21,
Article VII, or the specific mandate mentioned in Section
25, Article XVIII, the provision in the latter article
requiring ratification by a majority of the votes cast in a
national referendum being unnecessary since Congress
has not required it.
As to the matter of voting, Section 21, Article VII
particularly requires that a treaty or international
agreement, to be valid and effective, must be concurred
in by at least two-thirds of all the members of the Senate.
On the other hand, Section 25, Article XVIII simply
provides that the treaty be "duly concurred in by the
Senate."
Applying the foregoing constitutional provisions, a two-
thirds vote of all the members of the Senate is clearly
required so that the concurrence contemplated by law
may be validly obtained and deemed present. While it is
true that Section 25, Article XVIII requires, among other
things, that the treaty - the VFA, in the instant case - be
"duly concurred in by the Senate," it is very true however
that said provision must be related and viewed in light of
the clear mandate embodied in Section 21, Article VII,
which in more specific terms, requires that the
concurrence of a treaty, or international agreement, be
made by a two-thirds vote of all the members of the
Senate. Indeed, Section 25, Article XVIII must not be
treated in isolation to Section 21, Article VII.
As noted, the "concurrence requirement" under Section
25, Article XVIII must be construed in relation to the
provisions of Section 21, Article VII. In a more particular
language, the concurrence of the Senate contemplated
under Section 25, Article XVIII means that at least two-
thirds of all the members of the Senate favorably vote to
concur with the treaty - the VFA in the instant case.
xxx
Having resolved that the first two requisites prescribed in
Section 25, Article XVIII are present, we shall now pass upon
and delve on the requirement that the VFA should be
recognized as a treaty by the United States of America.
xxx
This Court is of the firm view that the phrase "recognized
as a treaty" means that the other contracting party
accepts or acknowledges the agreement as a treaty
(Ballantine's Legal Dictionary, 1995). To require the other
contracting state, The United States of America in this
case, to submit the VFA to the United States Senate for
concurrence pursuant to its Constitution, is to accord
strict meaning to the phrase.
Well-entrenched is the principle that the words used in
the Constitution are to be given their ordinary meaning
except where technical terms are employed, in which case
the significance thus attached to them prevails. Its
language should be understood in the sense they have in
common use (J.M. Tuason & Co., Inc. v. Land Tenure
Association, 31 SCRA 413 [1970])
Moreover, it is inconsequential whether the United States
treats the VFA only as an executive agreement because,
under international law, an executive agreement is as
binding as a treaty (Altman Co. v. United States, 224 US
263 [1942], cited in Coquia and Defensor-Santiago,
International Law, 1998 Ed. P. 497). To be sure, as long
as the VFA possesses the elements of an agreement
under international law, the said agreement is to be taken
equally as a treaty.
xxx
The records reveal that the United States Government,
through Ambassador Thomas C. Hubbard, has stated that
the United States government has fully committed to
living up to the terms of the VFA. For as long as the
United States of America accepts or acknowledges the
VFA as a treaty, and binds itself further to comply with its
obligations under the treaty, there is indeed marked
compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the
President, of the VFA and the concurrence of the Senate
should be taken as a clear and unequivocal expression of
our nation's consent to be bound by said treaty, with the
concomitant duty to uphold the obligations and
responsibilities embodied thereunder.
xxx
With the ratification of the VFA, which is equivalent to
final acceptance, and with the exchange of notes between
the Philippines and the United States of America, it now
becomes obligatory and incumbent on our part, under the
principles of international law, to be bound by the terms
of the agreement. Thus, no less than Section 2, Article II
of the Constitution, declares that the Philippines adopts
the generally accepted principles of international law as
part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation and amity
with all nations. (BAYAN [Bagong Alyansang
Makabayan] v. Executive Secretary Ronaldo
Zamora, G.R. No. 138570 and Companion Cases,
Oct. 10, 2000, 342 SCRA 449, 481-492, En Banc
[Buena])
414. Are the “Balikatan” exercises covered by the
Visiting Forces Agreement?
Held: The holding of “Balikatan 02-1” must be
studied in the framework of the treaty antecedents to
which the Philippines bound itself. The first of these is
the Mutual Defense Treaty (MDT, for brevity). The MDT
has been described as the “core” of the defense
relationship between the Philippines and its traditional
ally, the United States. Its aim is to enhance the
strategic and technological capabilities of our armed
forces through joint training with its American
counterparts; the “Balikatan” is the largest such training
exercise directly supporting the MDT’s objectives. It is
this treaty to which the VFA adverts and the obligations
thereunder which it seeks to reaffirm.
The lapse of the US-Philippine Bases Agreement in 1992
and the decision not to renew it created a vacuum in
US-Philippine defense relations, that is, until it was
replaced by the Visiting Forces Agreement. It should be
recalled that on October 10, 2000, by a vote of eleven to
three, this Court upheld the validity of the VFA (BAYAN,
et. Al. v. Zamora, et. al., 342 SCRA 449 [2000]). The
VFA provides the “regulatory mechanism” by which
“United States military and civilian personnel [may visit]
temporarily in the Philippines in connection with
activities approved by the Philippine Government.” It
contains provisions relative to entry and departure of
American personnel, driving and vehicle registration,
criminal jurisdiction, claims, importation and exportation,
movement of vessels and aircraft, as well as the
duration of the agreement and its termination. It is the
VFA which gives continued relevance to the MDT despite
the passage of years. Its primary goal is to facilitate the
promotion of optimal cooperation between American and
Philippine military forces in the event of an attack by a
common foe.
The first question that should be addressed is whether
“Balikatan 02-1” is covered by the Visiting Forces
Agreement. To resolve this, it is necessary to refer to
the VFA itself. Not much help can be had therefrom,
unfortunately, since the terminology employed is itself
the source of the problem. The VFA permits United
States personnel to engage, on an impermanent basis,
in “activities,” the exact meaning of which was left
undefined. The expression is ambiguous, permitting a
wide scope of undertakings subject only to the approval
of the Philippine government. The sole encumbrance
placed on its definition is couched in the negative, in
that United States personnel must “abstain from any
activity inconsistent with the spirit of this agreement,
and in particular, from any political activity.” All other
activities, in other words, are fair game.
We are not completely unaided, however. The Vienna
Convention on the Law of Treaties, which contains
provisos governing interpretations of international
agreements, state x x x.
It is clear from the foregoing that the cardinal rule of
interpretation must involve an examination of the text,
which is presumed to verbalize the parties’ intentions.
The Convention likewise dictates what may be used as
aids to deduce the meaning of terms, which it refers to
as the context of the treaty, as well as other elements
may be taken into account alongside the aforesaid
context. X x x
The Terms of Reference rightly fall within the context of
the VFA.
After studied reflection, it appeared farfetched that the
ambiguity surrounding the meaning of the word
“activities” arose from accident. In our view, it was
deliberately made that way to give both parties a certain
leeway in negotiation. In this manner, visiting US forces
may sojourn in Philippine territory for purposes other
than military. As conceived, the joint exercises may
include training on new techniques of patrol and
surveillance to protect the nation’s marine resources,
sea search-and-destroy operations to assist vessels in
distress, disaster relief operations, civic action projects
such as the building of school houses, medical and
humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the
current Balikatan exercises. It is only logical to assume
that “Balikatan 02-1,” a “mutual anti-terrorism advising,
assisting and training exercise,” falls under the umbrella
of sanctioned or allowable activities in the context of the
agreement. Both the history and intent of the Mutual
Defense Treaty and the VFA support the conclusion that
combat-related activities – as opposed to combat itself –
such as the one subject of the instant petition, are
indeed authorized. (Arthur D. Lim and Paulino R.
Ersando v. Honorable Executive Secretary, G.R.
No. 151445, April 11, 2002, En Banc [De Leon])
415. With the ratification of the Visiting Forces
Agreement (VFA), has it now become obligatory and
incumbent on our part to be bound by its terms even if it
is asserted that said agreement contravenes the
Constitution?
Held: With the ratification of the VFA, which is equivalent
to final acceptance, and with the exchange of notes
between the Philippines and the United States of America,
it now becomes obligatory and incumbent on our part,
under the principles of international law, to be bound by
the terms of the agreement. Thus, no less than Section
2, Article II of the Constitution, declares that the
Philippines adopts the generally accepted principles of
international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with all nations.
As a member of the family of nations, the Philippines
agrees to be bound by generally accepted rules for the
conduct of its international relations. While the
international obligation devolves upon the state and not
upon any particular branch, institution, or individual
member of its government, the Philippines is nonetheless
responsible for violations committed by any branch or
subdivision of its government or any official thereof. As
an integral part of the community of nations, we are
responsible to assure that our government, Constitution
and laws will carry out our international obligation (Louis
Henkin, Richard C. Pugh, Oscar Schachter, Hans Smit,
International Law, Cases and Materials, 2nd Ed., American
Casebook Series, p. 136). Hence, we cannot readily plead
the Constitution as a convenient excuse for non-
compliance with our obligations, duties and
responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and
Duties of States adopted by the International Law
Commission in 1949 provides: Every State has the duty to
carry out in good faith its obligations arising from treaties
and other sources of international law, and it may not
invoke provisions in its constitution or its laws as an
excuse for failure to perform this duty. (Gerhard von
Glahn, supra, p. 487)
Equally important is Article 26 of the Convention which
provides that “Every treaty in force is binding upon the
parties to it and must be performed by them in good
faith.” This is known as the principle of pacta sunt
servanda which preserves the sanctity of treaties and
have been one of the most fundamental principles of
positive international law, supported by the jurisprudence
of international tribunals (Harris, p. 634 cited in Coquia,
International Law, supra, p. 512). (BAYAN [Bagong
Alyansang Makabayan] v. Executive Secretary
Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000,
342 SCRA 449, 492-493, En Banc [Buena])
416. What must a person who feels aggrieved by the
acts of a foreign sovereign do to espouse his cause?
Held: Private respondent is not left without any
legal remedy for the redress of its grievances. Under both
Public International Law and Transnational Law, a person
who feels aggrieved by the acts of a foreign sovereign can
ask his own government to espouse his cause through
diplomatic channels.
Private respondent can ask the Philippine
government, through the Foreign Office, to espouse its
claims against the Holy See. Its first task is to persuade
the Philippine government to take up with the Holy See
the validity of its claim. Of course, the Foreign Office shall
first make a determination of the impact of its espousal
on the relations between the Philippine government and
the Holy See (Young, Remedies of Private Claimants
Against Foreign States, Selected Readings on Protection
by Law of Private Foreign Investments 905, 919 [1964]).
Once the Philippine government decides to espouse the
claim, the latter ceases to be a private cause.
 According to the Permanent Court of
International Justice, the forerunner of the International
Court of Justice:
“By taking up the case of one of its subjects and by
resorting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality asserting
its own rights - its right to ensure, in the person of its
subjects, respect for the rules of international law” (The
Mavrommatis Palestine Concessions, 1 Hudson, World
Court Reports 293, 302 [1924]).
(Holy See, The v. Rosario, Jr., 238 SCRA 524, 538-
539, Dec. 1, 1994, En Banc [Quiason])
417. What are the conditions before the rights of
belligerency may be accorded the rebels?
Ans.: As a matter of legal theory, the rebels have
to fulfill certain conditions before the rights of belligerency
are accorded them, namely:
1) An organized civil government that has
control and direction over the armed struggle launched by
the rebels;
2) Occupation of a substantial portion of the
national territory;
3) Seriousness of the struggle, which must be
so widespread thereby leaving no doubt as to the
outcome;
4) Willingness on the part of the rebels to
observe the rules and customs of war.
418. Discuss the legal consequences that follow
recognition of belligerency.
Ans.:
1) Before recognition as such, it is the legitimate
government that is responsible for the acts of the rebels
affecting foreign nationals and their properties. Once
recognition is given, the legitimate government may no longer
be held responsible for their acts; responsibility is shifted to the
rebel government;
2) The legitimate government, once it recognizes the
rebels as belligerents, is bound to observe the laws and customs
of war in conducting the hostilities;
3) From the point of view of third States, the effect
of recognition of belligerency is to put them under obligation to
observe strict neutrality and abide by the consequences arising
from that position;
4) On the side of the rebels, recognition of
belligerency puts them under responsibility to third States and
to the legitimate government for all their acts which do not
conform to the laws and customs of war. (Salonga & Yap,
Public International Law, 5th Ed. [1992], p. 33)
419. Should Courts blindly adhere and take on its face
the communication from the Department of Foreign
Affairs (DFA) that a person is covered by any immunity?
Held: Courts cannot blindly adhere and take on
its face the communication from the DFA that petitioner
is covered by any immunity. The DFA’s determination
that a certain person is covered by immunity is only
preliminary which has no binding effect in courts. In
receiving ex parte the DFA’s advice and in motu proprio
dismissing the two criminal cases without notice to the
prosecution, the latter’s right to due process was violated.
It should be noted that due process is a right of the
accused as much as it is of the prosecution. The needed
inquiry in what capacity petitioner was acting at the time
of the alleged utterances requires for its resolution
evidentiary basis that has yet to be presented at the
proper time (See United States v. Guinto, 182 SCRA 644
[1990]). At any rate, it has been ruled that the mere
invocation of the immunity clause does not ipso facto
result in the dropping of the charges (Chavez v.
Sandiganbayan, 193 SCRA 282 [1991]). (Liang v.
People, 323 SCRA 692, Jan. 28, 2000, 1st Div.
[Ynares-Santiago])
420. Discuss the basis of the argument that a
determination by the DFA that a person is entitled to
diplomatic immunity is a political question binding on the
courts.
Held: Petitioner’s argument that a determination
by the Department of Foreign Affairs that he is entitled to
diplomatic immunity is a political question binding on the
courts, is anchored on the ruling enunciated in the case
of WHO, et al. v. Aquino, et al. (48 SCRA 242 [1972]), viz:
“It is a recognized principle of international law and under
our system of separation of powers that diplomatic
immunity is essentially a political question and courts
should refuse to look beyond a determination by the
executive branch of the government, and where the plea
of diplomatic immunity is recognized and affirmed by the
executive branch of the government as in the case at bar,
it is then the duty of the courts to accept the claim of
immunity upon appropriate suggestion by the principal
law officer of the government, the Solicitor General in this
case, or other officer acting under his direction. Hence,
in adherence to the settled principle that courts may not
so exercise their jurisdiction by seizure and detention of
property, as to embarrass the executive arm of the
government in conducting foreign relations, it is accepted
doctrine that in such cases the judicial department of the
government follows the action of the political branch and
will not embarrass the latter by assuming an antagonistic
jurisdiction.”
This ruling was reiterated in the subsequent cases
of International Catholic Migration Commission v. Calleja
(190 SCRA 130 [1990]); The Holy See v. Rosario, Jr. (238
SCRA 524 [1994]); Lasco v. United Nations (241 SCRA
681 [1995]); and DFA v. NLRC (262 SCRA 38 [1996]).
 The case of WHO v. Aquino involved the search
and seizure of personal effects of petitioner Leonce
Verstuyft, an official of the WHO. Verstuyft was certified
to be entitled to diplomatic immunity pursuant to the Host
Agreement executed between the Philippines and the
WHO.
ICMC v. Calleja concerned a petition for
certification election filed against ICMC and IRRI. As
international organizations, ICMC and IRRI were declared
to possess diplomatic immunity. It was held that they are
not subject to local jurisdictions. It was ruled that the
exercise of jurisdiction by the Department of Labor over
the case would defeat the very purpose of immunity,
which is to shield the affairs of international organizations
from political pressure or control by the host country and
to ensure the unhampered performance of their
functions.
Holy See v. Rosario, Jr. involved an action for
annulment of sale of land against the Holy See, as
represented by the Papal Nuncio. The Court upheld the
petitioner’s defense of sovereign immunity. It ruled that
where a diplomatic envoy is granted immunity from the
civil and administrative jurisdiction of the receiving state
over any real action relating to private immovable
property situated in the territory of the receiving state,
which the envoy holds on behalf of the sending state for
the purposes of the mission, with all the more reason
should immunity be recognized as regards the sovereign
itself, which in that case is the Holy See.
In Lasco v. United Nations, the United Nations
Revolving Fund for Natural Resources Exploration was
sued before the NLRC for illegal dismissal. The Court
again upheld the doctrine of diplomatic immunity invoked
by the Fund.
Finally, DFA v. NLRC involved an illegal dismissal
case filed against the Asian Development Bank. Pursuant
to its Charter and the Headquarters Agreement, the
diplomatic immunity of the Asian Development Bank was
recognized by the Court.
It bears to stress that all of these cases pertain
to the diplomatic immunity enjoyed by international
organizations. Petitioner asserts that he is entitled to the
same diplomatic immunity and he cannot be prosecuted
for acts allegedly done in the exercise of his official
functions.
The term “international organizations” –
“is generally used to describe an organization set up by
agreement between two or more states. Under
contemporary international law, such organizations are
endowed with some degree of international legal
personality such that they are capable of exercising
specific rights, duties and powers. They are organized
mainly as a means for conducting general international
business in which the member states have an interest.”
(ICMC v. Calleja, supra note 2)
International public officials have been defined
as:
“x x x persons who, on the basis of an international treaty
constituting a particular international community, are
appointed by this international community, or by an organ
of it, and are under its control to exercise, in a continuous
way, functions in the interest of this particular
international community, and who are subject to a
particular personal status.” (John Kerry King, The
Privileges and Immunities of the Personnel of
International Organizations xiii [1949], citing: Suzanne
Basdevant, Les Functionnaires Internationaux [Paris:
1931], Chapter I)
“Specialized agencies” are international
organizations having functions in particular fields, such as
posts, telecommunications, railways, canals, rivers, sea
transport, civil aviation, meteorology, atomic energy,
finance, trade, education and culture, health and refugees
(ICMC v. Calleja, et al., citing Articles 57 and 63 of the
United Nations Charter). (Concurring Opinion, Puno
J., in Jeffrey Liang [Huefeng] v. People, G.R. No.
125865, Mar. 26, 2001, 1st Div. [Motion for
Reconsideration])
421. What are the differences between Diplomatic and
International Immunities? Discuss.
Held: There are three major differences
between diplomatic and international immunities. Firstly,
one of the recognized limitations of diplomatic immunity
is that members of the diplomatic staff of a mission may
be appointed from among the nationals of the receiving
State only with the express consent of that State; apart
from inviolability and immunity from jurisdiction in respect
of official acts performed in the exercise of their functions,
nationals enjoy only such privileges and immunities as
may be granted by the receiving State. International
immunities may be specially important in relation to the
State of which the official is a national. Secondly, the
immunity of a diplomatic agent from the jurisdiction of the
receiving State does not exempt him from the jurisdiction
of the sending State; in the case of international
immunities there is no sending State and an equivalent
for the jurisdiction of the Sending State therefore has to
be found either in waiver of immunity or in some
international disciplinary or judicial procedure. Thirdly,
the effective sanctions which secure respect for
diplomatic immunity are the principle of reciprocity and
the danger of retaliation by the aggrieved State;
international immunities enjoy no similar protection (C.
Wilfred Jenks, Contemporary Development in
International Immunities xxxvii [1961]) (Concurring
Opinion, Puno J., in Jeffrey Liang [Huefeng] v.
People, G.R. No. 125865, Mar. 26, 2001, 1st Div.
[Motion for Reconsideration])
422. Discuss the immunity of International Officials.
Held: The generally accepted principles which are now
regarded as the foundation of international immunities
are contained in the ILO Memorandum, which reduced
them in three basic propositions, namely: (1) that
international institutions should have a status which
protects them against control or interference by any one
government in the performance of functions for the
effective discharge of which they are responsible to
democratically constituted international bodies in which
all the nations concerned are represented; (2) that no
country should derive any financial advantage by levying
fiscal charges on common international funds; and (3)
that the international organization should, as a collectivity
of States Members, be accorded the facilities for the
conduct of its official business customarily extended to
each other by its individual member States. The thinking
underlying these propositions is essentially institutional in
character. It is not concerned with the status, dignity or
privileges of individuals, but with the elements of
functional independence necessary to free international
institutions from national control and to enable them to
discharge their responsibilities impartially on behalf of all
their members (Id. at 17). (Concurring Opinion, Puno
J., in Jeffrey Liang [Huefeng] v. People, G.R. No.
125865, Mar. 26, 2001, 1st Div. [Motion for
Reconsideration])
423. What are the three methods of granting privileges
and immunities to the personnel of international
organizations? Under what category does the Asian
Development Bank and its Personnel fall?
Held: Positive international law has devised three
methods of granting privileges and immunities to the
personnel of international organizations. The first is by
simple conventional stipulation, as was the case in the
Hague Conventions of 1899 and 1907. The second is by
internal legislation whereby the government of a state,
upon whose territory the international organization is to
carry out its functions, recognizes the international
character of the organization and grants, by unilateral
measures, certain privileges and immunities to better
assure the successful functioning of the organization and
its personnel. In this situation, treaty obligation for the
state in question to grant concessions is lacking. Such
was the case with the Central Commission of the Rhine at
Strasbourg and the International Institute of Agriculture
at Rome. The third is a combination of the first two. In
this third method, one finds a conventional obligation to
recognize a certain status of an international organization
and its personnel, but the status is described in broad and
general terms. The specific definition and application of
those general terms are determined by an accord
between the organization itself and the state wherein it is
located. This is the case with the League of Nations, the
Permanent Court of Justice, and the United Nations (J.K.
King, supra note 12, at 81).
The Asian Development Bank and its Personnel
fall under this third category.
There is a connection between diplomatic
privileges and immunities and those extended to
international officials. The connection consists in the
granting, by contractual provisions, of the relatively well-
established body of diplomatic privileges and immunities
to international functionaries. This connection is purely
historical. Both types of officials find the basis of their
special status in the necessity of retaining functional
independence and freedom from interference by the state
of residence. However, the legal relationship between an
ambassador and the state to which he is accredited is
entirely different from the relationship between the
international official and those states upon whose
territory he might carry out its functions (See Id. at 255).
The privileges and immunities of diplomats and those of
international officials rest upon different legal
foundations. Whereas those immunities awarded to
diplomatic agents are a right of the sending state based
on customary international law, those granted to
international officials are based on treaty or conventional
law. Customary international law places no obligation on
a state to recognize a special status of an international
official or to grant him jurisdictional immunities. Such an
obligation can only result from specific treaty provisions
(Id. at 25-26).
The special status of the diplomatic envoy is regulated by
the principle of reciprocity by which a state is free to treat
the envoy of another state as its envoys are treated by
that state. The juridical basis of the diplomat’s position is
firmly established in customary international law. The
diplomatic envoy is appointed by the sending State but it
has to make certain that the agreement of the receiving
State has been given for the person it proposes to accredit
as head of the mission to that State (Article 4, Vienna
Convention on Diplomatic Relations).
The staff personnel of an international organization – the
international officials – assume a different position as
regards their special status. They are appointed or
elected to their position by the organization itself, or by a
competent organ of it; they are responsible to the
organization and their official acts are imputed to it. The
juridical basis of their special position is found in
conventional law (J.K. King, supra note 12, at xiii), since
there is no established basis of usage or custom in the
case of the international official. Moreover, the
relationship between an international organization and a
member-state does not admit of the principle of
reciprocity (Id. at 27), for it is contradictory to the basic
principle of equality of states. An international
organization carries out functions in the interest of every
member state equally. The international official does not
carry out his functions in the interest of any state, but in
serving the organization he serves, indirectly, each state
equally. He cannot be, legally, the object of the operation
of the principle of reciprocity between states under such
circumstances. It is contrary to the principle of equality
of states for one state member of an international
organization to assert a capacity to extract special
privileges for its nationals from other member states on
the basis of a status awarded by it to an international
organization. It is upon this principle of sovereign
equality that international organizations are built.
It follows from this same legal circumstance that a state
called upon to admit an official of an international
organization does not have a capacity to declare him
persona non grata.
The functions of the diplomat and those of the
international official are quite different. Those of the
diplomat are functions in the national interest. The task
of the ambassador is to represent his state, and its
specific interest, at the capital of another state. The
functions of the international official are carried out in the
international interest. He does not represent a state or
the interest of any specific state. He does not usually
“represent” the organization in the true sense of that
term. His functions normally are administrative, although
they may be judicial or executive, but they are rarely
political or functions of representation, such as those of
the diplomat.
There is a difference of degree as well as of kind. The
interruption of the activities of a diplomatic agent is likely
to produce serious harm to the purposes for which his
immunities were granted. But the interruption of the
activities of the international official does not, usually,
cause serious dislocation of the functions of an
international secretariat (id. at 254-257).
On the other hand, they are similar in the sense that acts
performed in an official capacity by either a diplomatic
envoy or an international official are not attributable to
him as an individual but are imputed to the entity he
represents, the state in the case of the diplomat, and the
organization in the case of the international official (Id. at
103). ). (Concurring Opinion, Puno J., in Jeffrey
Liang [Huefeng] v. People, G.R. No. 125865, Mar.
26, 2001, 1st Div. [Motion for Reconsideration])
424. What is the reason behind the current tendency
of reducing privileges and immunities of personnel of
international organizations to a minimum?
Held: Looking back over 150 years of privileges and
immunities granted to the personnel of international
organizations, it is clear that they were accorded a wide
scope of protection in the exercise of their functions – The
Rhine Treaty of 1804 between the German Empire and
France which provided “all the rights of neutrality” to
persons employed in regulating navigation in the
international interest; The Treaty of Berlin of 1878 which
granted the European Commission of the Danube
“complete independence of territorial authorities” in the
exercise of its functions; The Convention of the League
which granted “diplomatic immunities and privileges.”
Today, the age of the United Nations finds the scope of
protection narrowed. The current tendency is to reduce
privileges and immunities of personnel of international
organizations to a minimum. The tendency cannot be
considered as a lowering of the standard but rather as a
recognition that the problem on the privileges and
immunities of international officials is new. The solution
to the problem presented by the extension of diplomatic
prerogatives to international functionaries lies in the
general reduction of the special position of both types of
agents in that the special status of each agent is granted
in the interest of function. The wide grant of diplomatic
prerogatives was curtailed because of practical necessity
and because the proper functioning of the organization
did not require such extensive immunity for its officials.
While the current direction of the law seems to be to
narrow the prerogatives of the personnel of international
organizations, the reverse is true with respect to the
prerogatives of the organizations themselves, considered
as legal entities. Historically, states have been more
generous in granting privileges and immunities to
organizations than they have to the personnel of these
organizations (J.K. King, supra note 12, at 253-268).
Thus, Section 2 of the General Convention on the
Privileges and Immunities of the United Nations states
that the UN shall enjoy immunity from every form of legal
process except insofar as in any particular case it has
expressly waived its immunity. Section 4 of the
Convention on the Privileges and Immunities of the
Specialized Agencies likewise provides that the specialized
agencies shall enjoy immunity from every form of legal
process subject to the same exception. Finally, Article
50[1] of the ADB Charter and Section 5 of the
Headquarters Agreement similarly provide that the bank
shall enjoy immunity from every form of legal process,
except in cases arising out of or in connection with the
exercise of its powers to borrow money, to guarantee
obligations, or to buy and sell or underwrite the sale of
securities.
The phrase “immunity from every form of legal process”
as used in the UN General Convention has been
interpreted to mean absolute immunity from a state’s
jurisdiction to adjudicate or enforce its law by legal
process, and it is said that states have not sought to
restrict that immunity of the United Nations by
interpretation or amendment. Similar provisions are
contained in the Special Agencies Convention as well as
in the ADB Charter and Headquarters Agreement. These
organizations were accorded privileges and immunities in
their charters by language similar to that applicable to the
United Nations. It is clear therefore that these
organizations were intended to have similar privileges and
immunities (1 Restatement of the Law Third 498-501).
From this, it can be easily deduced that international
organizations enjoy absolute immunity similar to the
diplomatic prerogatives granted to diplomatic envoys.
Even in the United States this seems to be the prevailing
rule x x x.
On the other hand, international officials are governed by
a different rule. Section 18[a] of the General Convention
on Privileges and Immunities of the United Nations states
that officials of the United Nations shall be immune from
legal process in respect of words spoken or written and
all acts performed by them in their official capacity. The
Convention on Specialized Agencies carries exactly the
same provision. The Charter of the ADB provides under
Article 55[i] that officers and employees of the bank shall
be immune from legal process with respect to acts
performed by them in their official capacity except when
the Bank waives immunity. Section 45 [a] of the ADB
Headquarters Agreement accords the same immunity to
the officers and staff of the bank. There can be no
dispute that international officials are entitled to immunity
only with respect to acts performed in their official
capacity, unlike international organizations which enjoy
absolute immunity.
Clearly, the most important immunity to an international
official, in the discharge of his international functions, is
immunity from local jurisdiction. There is no argument in
doctrine or practice with the principle that an international
official is independent of the jurisdiction of the local
authorities for his official acts. Those acts are not his, but
are imputed to the organization, and without waiver the
local courts cannot hold him liable for them. In strict law,
it would seem that even the organization itself could have
no right to waive an official’s immunity for his official acts.
This permits local authorities to assume jurisdiction over
an individual for an act which is not, in the wider sense of
the term, his act al all. It is the organization itself, as a
juristic person, which should waive its own immunity and
appear in court, not the individual, except insofar as he
appears in the name of the organization. Provisions for
immunity from jurisdiction for official acts appear, aside
from the aforementioned treatises, in the constitution of
most modern international organizations. The
acceptance of the principle is sufficiently widespread to
be regarded as declaratory of international law (J.K. King,
supra note 12, at 258-259) (Concurring Opinion, Puno
J., in Jeffrey Liang [Huefeng] v. People, G.R. No.
125865, Mar. 26, 2001, 1st Div. [Motion for
Reconsideration])
425. What is the status of the international official with
respect to his private acts?
Held: Section 18 [a] of the General Convention
has been interpreted to mean that officials of the specified
categories are denied immunity from local jurisdiction for
acts of their private life and empowers local courts to
assume jurisdiction in such cases without the necessity of
waiver (Id. at 186). It has earlier been mentioned that
historically, international officials were granted diplomatic
privileges and immunities and were thus considered
immune for both private and official acts. In practice, this
wide grant of diplomatic prerogatives was curtailed
because of practical necessity and because the proper
functioning of the organization did not require such
exclusive immunity for its officials. Thus, the current
status of the law does not maintain that states grant
jurisdictional immunity to international officials for acts of
their private lives (But see id. at 259. It is important to
note that the submission of international officials to local
jurisdiction for private acts is not completely accepted in
doctrine and theory. Jenks, in particular, has argued for
complete jurisdictional immunity, as has Hammarskjold.).
This much is explicit from the charter and Headquarters
Agreement of the ADB which contain substantially similar
provisions to that of the General convention.
(Concurring Opinion, Puno J., in Jeffrey Liang
[Huefeng] v. People, G.R. No. 125865, Mar. 26,
2001, 1st Div. [Motion for Reconsideration])
426. Who is competent to determine whether a given
act of international officials and representatives is private
or official?
Held: In connection with this question, the
current tendency to narrow the scope of privileges ad
immunities of international officials and representatives is
most apparent. Prior to the regime of the United Nations,
the determination of this question rested with the
organization and its decision was final. By the new
formula, the state itself tends to assume this competence.
If the organization is dissatisfied with the decision, under
the provisions of the General Convention of the United
Nations, or the Special Convention for Specialized
Agencies, the Swiss Arrangement, and other current
dominant instruments, it may appeal to an international
tribunal by procedures outlined in these instruments.
Thus, the state assumes this competence in the first
instance. It means that, if a local court assumes
jurisdiction over an act without the necessity of waiver
from the organization, the determination of the nature of
the act is made at the national level (Id. at 260-261).
It appears that the inclination is to place the
competence to determine the nature of an act as private
or official in the courts of the state concerned. That the
practical notion seems to be to leave to the local courts
determination of whether or not a given act is official or
private does not necessarily mean that such
determination is final. If the United Nations questions the
decision of the Court, it may invoke proceedings for
settlement of disputes between the organization and the
member states as provided in Section 30 of the General
Convention. Thus, the decision as to whether a given act
is official or private is made by the national courts in the
first instance, but it may be subjected to review in the
international level if questioned by the United Nations (Id.
at 189).
xxx
Under the Third Restatement of the Law, it is suggested
that since an international official does not enjoy personal
inviolability from arrest or detention and has immunity
only with respect to official acts, he is subject to judicial
or administrative process and must claim his immunity in
the proceedings by showing that the act in question was
an official act. Whether an act was performed in the
individual’s official capacity is a question for the court in
which a proceeding is brought, but if the international
organization disputes the court’s finding, the dispute
between that organization and the state of the forum is
to be resolved by negotiation, by an agreed mode of
settlement or by advisory opinion of the International
Court of Justice (Restatement of the Law Third 512).
Recognizing the difficulty that by reason of the right of a
national court to assume jurisdiction over private acts
without a waiver of immunity, the determination of the
official or private character of a particular act may pass
from international to national, Jenks proposes three ways
of avoiding difficulty in the matter. The first would be for
a municipal court before which a question of the official
or private character of a particular act arose to accept as
conclusive in the matter any claim by the international
organization that the act was official in character, such a
claim being regarded as equivalent to a governmental
claim that a particular act is an act of State. Such a claim
would be in effect a claim by the organization that the
proceedings against the official were a violation of the
jurisdictional immunity of the organization itself which is
unqualified and therefore not subject to delimitation in
the discretion of the municipal court. The second would
be for a court to accept as conclusive in the matter a
statement by the executive government of the country
where the matter arises certifying the official character of
the act. The third would be to have recourse to the
procedure of international arbitration. Jenks opines that
it is possible that none of these three solutions would be
applicable in all cases; the first might be readily
acceptable only in the clearest cases and the second is
available only if the executive government of the country
where the matter arises concurs in the view of the
international organization concerning the official
character of the act. However, he surmises that taken in
combination, these various possibilities may afford the
elements of a solution to the problem (Jenks, supra note
14, at 117-118). (Concurring Opinion, Puno J., in
Jeffrey Liang [Huefeng] v. People, G.R. No.
125865, Mar. 26, 2001, 1st Div. [Motion for
Reconsideration])
427. Discuss the extent of the international official’s
immunity for official acts.
Held: One final point. The international official’s
immunity for official acts may be likened to a consular
official’s immunity from arrest, detention, and criminal or
civil process which is not absolute but applies only to acts
or omissions in the performance of his official functions,
in the absence of special agreement. Since a consular
officer is not immune from all legal processes, he must
respond to any process and plead and prove immunity on
the ground that the act or omission underlying the
process was in the performance of his official functions.
The issue has not been authoritatively determined, but
apparently the burden is on the consular official to prove
his status as well as his exemption in the circumstances.
In the United States, the US Department of State
generally has left it to the courts to determine whether a
particular act was within a consular officer’s official duties
(1 Restatement of the Law Third 475-477). (Concurring
Opinion, Puno J., in Jeffrey Liang [Huefeng] v.
People, G.R. No. 125865, Mar. 26, 2001, 1st Div.
[Motion for Reconsideration])
428. State the occasions when the use of force may be
allowed under the UN Charter.
Ans.: There are only two occasions when the use of force
is allowed under the UN Charter. The first is when it is
authorized in pursuance of the enforcement action that
may be decreed by the Security Council under Art. 42.
The second is when it is employed in the exercise of the
inherent right of self-defense under conditions prescribed
in Art. 51. (Justice Isagani A. Cruz, in an article
entitled “A New World Order” written in his
column “Separate Opinion” published in the March
30, 2003 issue of the Philippines Daily Inquirer)
429. Is the United States justified in invading Iraq
invoking its right to defend itself against an expected
attack by Iraq with the use of its biological and chemical
weapons of mass destruction?
Ans.: The United States is invoking its right to defend
itself against an expected attack by Iraq with the use of
its biological and chemical weapons of mass destruction.
There is no evidence of such a threat, but Bush is
probably invoking the modern view that a state does not
have to wait until the potential enemy fires first. The
cowboy from Texas says that outdrawing the foe who is
about to shoot is an act of self-defense.
Art. 51 says, however, that there must first be an “armed
attack” before a state can exercise its inherent right of
self-defense, and only until the Security Council, to which
the aggression should be reported, shall have taken the
necessary measures to maintain international peace and
security. It was the United States that made the “armed
attack” first, thus becoming the aggressor, not Iraq. Iraq
is now not only exercising its inherent right of self-defense
as recognized by the UN Charter. (Justice Isagani A.
Cruz, in an article entitled “A New World Order”
written in his column “Separate Opinion”
published in the March 30, 2003 issue of the
Philippines Daily Inquirer)

430. Will the subsequent discovery of weapons of

mass destruction in Iraq after its invasion by the US justify
the attack initiated by the latter?

Ans.: Even if Iraq’s hidden arsenal is discovered – or

actually used – and the United States is justified in its
suspicions, that circumstance will not validate the
procedure taken against Iraq. It is like searching a person
without warrant and curing the irregularity with the
discovery of prohibited drugs in his possession. The
process cannot be reversed. The warrant must first be
issued before the search and seizure can be made.

The American invasion was made without permission

from the Security Council as required by the UN Charter.
Any subsequent discovery of the prohibited biological and
chemical weapons will not retroactively legalize that
invasion, which was, legally speaking, null and void ab
initio. (Justice Isagani A. Cruz, in an article entitled
“A New World Order” written in his column
“Separate Opinion” published in the March 30,
2003 issue of the Philippines Daily Inquirer)