LEX REVIEWS AND SEMINARS INC; NATIONAL BAR REVIEW CENTER

FOUR HUNDRED AND SEVENTY-NINE (479) QUESTIONS AND ANSWERS IN POLITICAL LAW AND PUBLIC INTERNATIONAL LAW (Culled from Significant Laws and Decisions of the Supreme Court) Attorney EDWIN REY SANDOVAL (As of August 25, 2006) PART II
C. ADMINISTRATIVE LAW 280. 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]) 281. 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]) 282. 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]) 283. What is the Government of the Republic of the Philippines?

Ans.: 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) 284. What is an Agency of the Government?

Ans.: Agency of the Government refers to any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein. (Sec. 2[4], Introductory Provisions, Executive Order No. 292) 285. What is a Department?

Ans.: Department refers to an executive department created by law. For purposes of Book IV, this shall include any instrumentality, as herein defined, having or assigned the rank of a department, regardless of its name or designation. (Sec. 2[7], Introductory Provisions, Executive Order No. 292) 286. What is a Bureau?

Ans.: Bureau refers to any principal subdivision or unit of any department. For purposes of Book IV, this shall include any principal subdivision or unit of any instrumentality given or assigned the rank of a bureau, regardless of actual name or designation, as in the case of department-wide regional offices. (Sec. 2[8], Introductory Provisions, Executive Order No. 292) What is an Office? Ans.: Office refers, within the framework of governmental organization, to any major functional unit of a department or bureau including regional offices. It may also refer to any position held or occupied by individual persons, whose functions are defined by law or regulation. (Sec. 2[9], Introductory Provisions, Executive Order No. 292) 1 287.

288.

What is a Government Instrumentality? What are included in the term Government Instrumentality?

Ans.: 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) 289. What is a Regulatory Agency?

Ans.: 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) 290. What is a Chartered Institution?

Ans.: 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) 291. What is a Government-Owned or Controlled Corporation?

Ans.: Government-owned or controlled corporation refers to any agency organized as a stock or non-stock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government directly or through its instrumentalities either wholly, or, where applicable as in the case of stock corporations, to the extent of at least fifty-one (51) per cent of its capital stock; x x x (Sec. 2[13], Introductory Provisions, Executive Order No. 292) 292. 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]) 293. 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 amendnt 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]) 294. When may the Government not validly invoke the rule that prescription does not run against the State? Illustrative Case.

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 Galvezs 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 countrys 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 countrys 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 petitioners 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. 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 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. 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]) 295. Discuss the nature and functions of the National Telecommunications Commission (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 x x x. 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 NTCs 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-ininterest 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. [YnaresSantiago]) 296. Is the filing of the administrative rules and regulations with the UP Law Center the operative act that gives the rules force and effect? 3

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. 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 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.

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, fall squarely within the scope of these laws, as explicitly mentioned in the case of Tanada v. Tuvera. 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 govern. (Republic v. Express Telecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1st Div. [Ynares-Santiago]) 297. 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, 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; b) Letter of Instruction No. 416 ordering the suspension of payments due and payable by distressed copper mining companies to the national government; c) Memorandum Circulars issued by the POEA regulating the recruitment of domestic helpers to Hong Kong; d) Administrative Order No. SOCPEC 89-08-01 issued by the Philippine International Trading Corporation regulating applications for importation from the Peoples Republic of China; 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. 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. 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. 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]) 298. 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. 5

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, 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 Generals reliance on the case of Yaokasin v. Commissioner of Customs 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]) 299. 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. Using this as our premise, we cannot accede to PHOTOKINAs contention that there is already a perfected contract. While we held in Metropolitan Manila Development Authority v. Jancom Environmental Corporation 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. 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. 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 COMELECs 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: 6

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. Xxx In fine, we rule that PHOTOKINA, though the winning bidder, cannot compel the COMELEC to formalize the contract. Since PHOTOKINAs 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]) 300. 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 abovementioned 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. 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. (Commission on Elections v. Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-Gutierrez]) 301. 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, 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 quasijudicial 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.]) 302. 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, 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 7

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. (Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 134-135, Jan. 5, 1994, En Banc [Vitug, J.]) 303. 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 nonobservance 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]) 304. 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.]) 305. 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 297, Oct. 9, 1992, 3rd Div. [Panganiban]) 306. Discuss the Doctrine of Exhaustion of Administrative Remedies. What are the 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 courts judicial power can be sought. The premature invocation of courts jurisdiction is fatal to ones cause of action. Accordingly, absent any finding of waiver or estoppel the case is susceptible of dismissal for lack of cause of action. This doctrine of exhaustion of administrative remedies was not without its practical and legal reasons, for one thing, availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies. It is no less true to state that the courts of justice for reasons of comity and convenience will shy away from a dispute until the system of administrative redress has been completed and complied with so as to give the administrative agency concerned every opportunity to correct its error and to dispose of the case. This doctrine is disregarded: when there is a violation of due process; 8

when the issue involved is purely a legal question; when the administrative action is patently illegal amounting to lack or excess of jurisdiction; when there is estoppel on the part of the administrative agency concerned; when there is irreparable injury; 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; when to require exhaustion of administrative remedies would be unreasonable; when it would amount to a nullification of a claim; when the subject matter is a private land in land case proceeding; when the rule does not provide a plain, speedy and adequate remedy, and 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, March 3, 1997, 3rd Div. [Davide]) D. THE LAW OF PUBLIC OFFICERS 307. 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, reiterated in Flores v. Drilon, 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. 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]) 308. 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 Commissions authority only to whether or not the appointees possess the legal qualifications and the appropriate civil service eligibility, nothing else. If they do then the appointments are approved because the Commission cannot exceed its power by substituting its will for that of the appointing authority. Neither can we. (Rimonte v. CSC, 244 SCRA 504-505, May 29, 1995, En Banc [Bellosillo, J.]) 309. 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, 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, 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]) 310. 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., 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 moments notice, conformably to established jurisprudence. The Court, having considered these submissions and the additional arguments of the parties in the petitioners Reply and of the Solicitor-Generals 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 respondents 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 respondents 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]) 311. 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: 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: CES eligibility; and 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.

10

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]) 312. 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). 313. 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 latters belief that he can share a close intimate relationship with the occupant which ensures freedom of discussion without fear or embarrassment or misgivings of possible betrayal of personal trust or confidential matters of state. Withal, where the position occupied is more remote from that of the appointing authority, the element of trust between them is no longer predominant. (CSC v. Salas, 274 SCRA 414, June 19, 1997) 314. 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]) 315. 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]) 316. 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 11

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]) 317. 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 Ombudsmans 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, 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. 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. 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]) 12

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 petitioners 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 Presidents 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, 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. 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. 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. 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]) 319. 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?

318.

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 In the relatively recent case of Segovia v. Sandiganbayan, 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

13

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. Explaining the nature of the preventive suspension, the Court in the case of Bayot v. Sandiganbayan: 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. 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 Sandiganbayans 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 hearing, there is no hard and fast rule as to the conduct 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. 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., 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:

14

x x x Petitioners 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]) 320. 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) 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) 321. 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) 322. 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. Xxx 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 15

Particularly odious and revolting to the peoples 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 IXB 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 16

constituting the exception thereto. In the same manner must Section 7, par. (2) of Article IX-B be construed vis--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, VicePresident, 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 constitutions manifest intent and the peoples 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 heads 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]) 323. 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 exofficio 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. 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. 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. 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 officials office. The 17

term ex-officio means from office; by virtue of office. It refers to an authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position. Ex officio likewise denotes an act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office. An 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. 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, 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. 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). The additional duties must not only be closely related to, but must be required by the officials primary functions. Examples of designations to positions by virtue of ones 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 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. 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]) 324. 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. It has been held that in cases where there is no de jure officer, a de facto officer, who, in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by the services of an officer de facto and then be freed from all liability to pay any one for such services. Any per diem, allowances or other emoluments received by the respondents by virtue of actual services rendered in the questioned positions may therefore be retained by them. (Civil Liberties Union v. Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ]) 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). 18

325.

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) b) c) d) appointing authority; recommending authority; chief of the bureau or office; and 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]) 326. 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) 327. 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 officers 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]) 328. What is the Doctrine of Condonation? Illustrative case.

Held: Petitioner contends that, per our ruling in Aguinaldo v. Santos, 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, citing Conant v. Brogan, 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 petitioners character. On this point, petitioner responds that knowledge of an officials 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, 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, 19

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 contracts 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. 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 peoples 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 officials 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 officials 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. 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 petitioners second term. However, respondents argue that the contract, although signed on May 7, 1998, during petitioners 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 petitioners 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]) 329. 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: Petitioners 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 20

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. Petitioners 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 petitioners 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, 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, Benipayos 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, Benipayos order designating Cinco Officer-in-Charge of the EID is legally unassailable. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio]) 330. 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 appointees assumption of the position in the civil service, he acquires a legal right which cannot be taken away either by revocation of the appointment or by removal except for cause and with previous notice and hearing. Moreover, it is well-settled that the person assuming a position in the civil service under a completed appointment acquires a legal, not just an equitable, right to the position. This right is protected not only by statute, but by the Constitution as well, which right cannot be taken away by either revocation of the appointment, or by removal, unless there is valid cause to do so, provided that there is previous notice and hearing. 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 CSCs 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. 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 21

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: Non-compliance with the procedures/criteria provided in the agencys Merit Promotion Plan; Failure to pass through the agencys Selection/Promotion Board; Violation of the existing collective agreement between management and employees relative to promotion; or 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]) 331. 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?

Held: 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 respondents substantial compliance with the standing rules, and the City Governments 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 CSCs 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 respondents 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 22

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. 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 Governments 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. 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. 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. 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, 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. 23

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 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]) 332. 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. In order to constitute abandonment of an office, it must be total and under such circumstances as clearly to indicate an absolute relinquishment. There must be a complete abandonment of duties of such continuance that the law will infer a relinquishment. Abandonment of duties is a voluntary act; it springs from and is accompanied by deliberation and freedom of choice. There are, therefore, two essential elements of abandonment: first, an intention to abandon and second, an overt or external act by which the intention is carried into effect. Generally speaking, a person holding a public office may abandon such office by non-user or acquiescence. Non-user refers to a neglect to use a right or privilege or to exercise an office. However, non-performance of the duties of an office does not constitute abandonment where such non-performance results from temporary disability or from involuntary failure to perform. Abandonment may also result from an acquiescence by the officer in his wrongful removal or discharge, for instance, after a summary removal, an unreasonable delay by an officer illegally removed in taking steps to vindicate his rights may constitute an abandonment of the office. Where, while desiring and intending to hold the office, and with no willful desire or intention to abandon it, the public officer vacates it in deference to the requirements of a statute which is afterwards declared unconstitutional, such a surrender will not be deemed an abandonment and the officer may recover the effect. (Canonizado v. Aguirre, 351 SCRA 659, 665-668, Feb. 15, 2001, En Banc [Gonzaga-Reyes]) 333. 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 Canonizados 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 petitioners 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]) 334. Distinguish term of office from tenure of the incumbent. 24

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]) 335. 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, 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]) 336. 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.]) 337. 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. 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]) 338. 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.

25

Clear intention to abandon should be manifested by the officer concerned. Such intention may be express or inferred from his own conduct. Thus, the failure to perform the duties pertaining to the office must be with the officers actual or imputed intention to abandon and relinquish the office. Abandonment of an office is not wholly a matter of intention; it results from a complete abandonment of duties of such continuance that the law will infer a relinquishment. Therefore, there are two 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) 339. What is the effect of acceptance of an incompatible office to a claim for reinstatement?

Held: The next issue is whether Canonizados 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. Public policy considerations dictate against allowing the same individual to perform inconsistent and incompatible duties. The incompatibility contemplated is not the mere physical impossibility of one persons 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. 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 v. Gimenez and Gonzales v. Hernandez 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 ones family, either of which are sufficient to justify Canonizados 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]) 340. When may unconsented transfers be considered anathema to security of tenure? Held: As held in Sta. Maria v. Lopez: "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]) 341. 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 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 26

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, 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]) 342. 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: 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 Presidents 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. (Larin v. Executive Secretary, 280 SCRA 713, Oct. 16, 1997) 343. 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: Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned; Where an office is abolished and another performing substantially the same functions is created; Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit; 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; 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) E. ELECTION LAWS 344. 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 27

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 Voters Registration Act of 1996. (Akbayan-Youth v. COMELEC, 355 SCRA 318, Mar. 26, 2001, En Banc [Buena]) 345. Discuss the nature of Voters 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 voters registration for the ultimate purpose of conducting honest, orderly and peaceful election, to the incidental yet generally important end, that even pre-election activities could be performed by the duly constituted authorities in a realistic and orderly manner one which is not indifferent and so far removed from the pressing order of the day and the prevalent circumstances of the times. (Akbayan-Youth v. COMELEC, 355 SCRA 318, Mar. 26, 2001, En Banc [Buena]) 346. 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]) 347. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987 Constitution of the Republic of the Philippines?

Held: [P]etitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of the 1987 Constitution which requires that the voter must be a resident in the Philippines for at least one year and in the place where he proposes to vote for at least six months immediately preceding an election. Petitioner cites the ruling of the Court in Caasi v. Court of Appeals (G.R. No. 88831, 8 November 1990, 191 SCRA 229) to support his claim. In that case, the Court held that a green card holder immigrant to the United States is deemed to have abandoned his domicile and residence in the Philippines. Petitioner further argues that Section 1, Article V of the Constitution does not allow provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise; that the legislature should not be allowed to circumvent the requirement of the Constitution on the right of suffrage by providing a condition thereon which in effect amends or alters the aforesaid residence requirement to qualify a Filipino abroad to vote. He claims that the right of suffrage should not be granted to anyone who, on the date of the election, does not possess the qualifications provided for by Section 1, Article V of the Constitution. Xxx The seed of the present controversy is the interpretation that is given to the phrase, qualified citizens of the Philippines abroad as it appears in R.A. No. 9189 x x x. X x x Under Section 5(d) of R.A. No. 9189, one of those disqualified from voting is an immigrant or permanent resident who is recognized as such in the host country unless he/she executes an affidavit declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three years from approval of his/her registration under said Act. Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the Filipinos abroad who are immigrants or permanent residents, to vote. He focuses solely on Section 1, Article V of the Constitution in ascribing constitutional infirmity to Section 5(d) of R.A. No. 9189, totally ignoring the provisions of Section 2 empowering Congress to provide a system for absentee voting by qualified Filipinos abroad. A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression that it contravenes Section 1, Article V of the Constitution. Filipino immigrants and permanent residents overseas are perceived as having left and abandoned the Philippines to live permanently in their host countries and therefore, a provision in the law enfranchising those who do not possess the residency requirement of the Constitution by the mere act of executing an affidavit expressing their intent to return to the Philippines within a given period, risks a declaration of unconstitutionality. However, the risk is more apparent than real. Xxx 28

As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court to take a holistic view of the pertinent provisions of both the Constitution and R.A. No. 9189. It is a basic rule in constitutional construction that the Constitution should be construed as a whole. X x x R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V of the Constitution that Congress shall provide a system for voting by qualified Filipinos abroad. It must be stressed that Section 2 does not provide for the parameters of the exercise of legislative authority in enacting said law. Hence, in the absence of restrictions, Congress is presumed to have duly exercised its function as defined in Article VI (the Legislative Department) of the Constitution. To put matters in their right perspective, it is necessary to dwell first on the significance of absentee voting. The concept of absentee voting is relatively new. X x x Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a resident and an absentee (1 WORDS AND PHRASES 264 citing Savant v. Mercadal, 66 So. 961, 962, 136 La., 248). However, under our election laws and the countless pronouncements of the Court pertaining to elections, an absentee remains attached to his residence in the Philippines as residence is considered synonymous with domicile. Xxx Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the framers of the Constitution considered the circumstances that impelled them to require Congress to establish a system for overseas absentee voting x x x. Xxx Thus, the Constitutional Commission recognized the fact that while millions of Filipinos reside abroad principally for economic reasons and hence they contribute in no small measure to the economic uplift of this country, their voices are marginal insofar as the choice of this countrys leaders is concerned. The Constitutional Commission realized that under the laws then existing and considering the novelty of the system of absentee voting in this jurisdiction, vesting overseas Filipinos with the right to vote would spawn constitutional problems especially because the Constitution itself provides for the residency requirement of voters x x x. Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the inapplicability of the residency requirement in Section 1. It is precisely to avoid any problems that could impede the implementation of its pursuit to enfranchise the largest number of qualified Filipinos who are not in the Philippines that the Constitutional Commission explicitly mandated Congress to provide a system for overseas absentee voting. The discussion of the Constitutional Commission on the effect of the residency requirement prescribed by Section 1, Article V of the Constitution on the proposed system for absentee voting for qualified Filipinos abroad is enlightening x x x. Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the responsibility of devising a system of absentee voting. The qualifications of voters as stated in Section 1 shall remain except for the residency requirement. This is in fact the reason why the Constitutional Commission opted for the term qualified Filipinos abroad with respect to the system of absentee voting that Congress should draw up. As stressed by Commissioner Monsod, by the use of the adjective qualified with respect to Filipinos abroad, the assumption is that they have the qualifications and none of the disqualifications to vote. In fine-tuning the provision on absentee voting, the Constitutional Commission discussed how the system should work x x x. It is clear from these discussions of the members of the Constitutional Commission that they intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin. The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents domicile of origin is in the Philippines, and consider them qualified as voters for the first time. It is in pursuance of that intention that the Commission provided for Section 2 immediately after the residency requirement of Section 1. By the doctrine of necessary implication in statutory construction, which may be applied in construing constitutional provisions (Marcelino v. Cruz, 121 SCRA 51, 56), the strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with respect to qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote though they do not satisfy the residency requirement in Section 1, Article V of the Constitution. That Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of the same Article was in fact the subject of debate when Senate Bill No. 2104, which became R.A. No. 9189, was deliberated upon on the Senate floor x x x. Xxx Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting process x x x which does not require physical residency in the Philippines; and Section 5 of the assailed law which enumerates those who are disqualified x x x. As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or permanent resident who is recognized as such in the host country because immigration or permanent residence in another country implies renunciation of ones residence in his country of origin. However, same Section allows an immigrant and permanent resident abroad to register as voter for as long as he/she executes an affidavit to show that he/she has not abandoned his domicile in pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V that all citizens of the Philippines not otherwise disqualified by law must be entitled to exercise the right of suffrage and, that Congress must establish a system for absentee voting; for otherwise, if actual, physical residence in the Philippines is required, there is no sense for the framers of the Constitution to mandate Congress to establish a system for absentee voting. 29

Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippines, but more significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin. Thus, it is not correct to say that the execution of the affidavit under Section 5(d) violates the Constitution that proscribes provisional registration or a promise by a voter to perform a condition to be qualified to vote in a political exercise. To repeat, the affidavit is required of immigrants and permanent residents abroad because by their status in their host countries, they are presumed to have relinquished their intent to return to this country; thus, without the affidavit, the presumption of abandonment of Philippine domicile shall remain. Further perusal of the transcripts of the Senate proceedings discloses another reason why the Senate required the execution of said affidavit. It wanted the affiant to exercise the option to return or to express his intention to return to his domicile of origin and not to preempt that choice by legislation. X x x Xxx In the advent of The Overseas Absentee Voting Act of 2003 or R.A. No. 9189, they may still be considered as a qualified citizen of the Philippines abroad upon fulfillment of the requirements of registration under the new law for the purpose of exercising their right of suffrage. It must be emphasized that Section 5(d) does not only require an affidavit or a promise to resume actual physical permanent residence in the Philippines not later than three years from approval of his/her registration, the Filipinos abroad must also declare that they have not applied for citizenship in another country. Thus, they must return to the Philippines otherwise, their failure to return shall be cause for the removal of their names from the National Registry of absentee voters and his/her permanent disqualification to vote in absentia. Thus, Congress crafted a process of registration by which a Filipino voter permanently residing abroad who is at least eighteen years old, not otherwise disqualified by law, who has not relinquished Philippine citizenship and who has not actually abandoned his/her intentions to return to his/her domicile of origin, the Philippines, is allowed to register and vote in the Philippine embassy, consulate or other foreign service establishments of the place which has jurisdiction over the country where he/she has indicated his/her address for purposes of the elections, while providing for safeguards to a clean election. Xxx Contrary to petitioners claim that Section 5(d) circumvents the Constitution, Congress enacted the law prescribing a system of overseas absentee voting in compliance with the constitutional mandate. Such mandate expressly requires that Congress provide a system of absentee voting that necessarily presupposes that the qualified citizen of the Philippines abroad is not physically present in the country. The provisions of Sections 5(d) and 11 are components of the system of overseas absentee voting established by R.A. No. 9189. The qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the Philippines. He is presumed not to have lost his domicile by his physical absence from this country. His having become an immigrant or permanent resident of his host country does not necessarily imply an abandonment of his intention to return to his domicile of origin, the Philippines. Therefore, under the law, he must be given the opportunity to express that he has not actually abandoned his domicile in the Philippines by executing the affidavit required by Sections 5(d) and 8(c) of the law. Petitioners speculative apprehension that the implementation of Section 5(d) would affect the credibility of the elections is insignificant as what is important is to ensure that all those who possess the qualifications to vote on the date of the election are given the opportunity and permitted to freely do so. The COMELEC and the Department of Foreign Affairs gave enough resources and talents to ensure the integrity and credibility of any election conducted pursuant to R.A. No. 9189. As to the eventuality that the Filipino abroad would renege on his undertaking to return to the Philippines, the penalty of perpetual disenfranchisement provided for by Section 5(d) would suffice to serve as deterrence to non-compliance with his/her undertaking under the affidavit. Petitioner argues that should a sizable number of immigrants renege on their promise to return, the result of the elections would be affected and could even be a ground to contest the proclamation of the winning candidates and cause further confusion and doubt on the integrity of the results of the election. Indeed, the probability that after an immigrant has exercised the right to vote, he shall opt to remain in his host country beyond the third year from the execution of the affidavit, is not farfetched. However, it is not for this Court to determine the wisdom of a legislative exercise. X x x Congress itself was conscious of said probability and in fact, it has addressed the expected problem. Section 5(d) itself provides for a deterrence which is that the Filipino who fails to return as promised stands to lose his right of suffrage. Under Section 9, should a registered overseas absentee voter fail to vote for two consecutive national elections, his name may be ordered removed from the National Registry of Overseas Absentee Voters. Other serious legal questions that may be raised would be: what happens to the votes cast by the qualified voters abroad who were not able to return within three years as promised? What is the effect on the votes cast by the non-returnees in favor of the winning candidates? The votes cast by qualified Filipinos abroad who failed to return within three years shall not be invalidated because they were qualified to vote on the date of the elections, but their failure to return shall be cause for the removal of the names of the immigrants or permanent residents from the National Registry of Absentee Voters and their permanent disqualification to vote in absentia. In fine, considering the underlying intent of the Constitution, the Court does not find Section 5(d) of R.A. No. 9189 as constitutionally defective. (Makalintal v. COMELEC, G.R. No. 157013, July 10, 2003, En Banc [Austria-Martinez]) 30

348.

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, 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]) 349. 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, 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]) 350. What are the three classes of domicile? Discuss.

Held: There are three classes of domicile, namely: domicile of origin, domicile of choice, and domicile by operation of law. At any given point, a person can only have one domicile. Domicile of origin is acquired by every person at birth and continues until replaced by the acquisition of another domicile. More specifically, it is the domicile of the childs parents or of the persons upon whom the child is legally dependent at birth. Although referred to as domicile of birth, domicile of origin is actually the domicile of ones parents at the time of birth and may not necessarily be the actual place of ones birth (25 Am Jur 2d, Domicil Sec 11 at 13). Domicile of choice is a domicile chosen by a person to replace his or her former domicile. An adult may change domicile at will. The choice involves an exercise of free will and presumes legal capacity to make a choice. While intention is a principal feature of domicile of choice, a mere intention without the fact of actual presence in the locality cannot bring about the acquisition of a new domicile. Domicile of choice generally consists of a bodily presence in a particular locality and a concurrent intent to remain there permanently or at least indefinitely (Id. at Sec 12). Domicle by operation of law is a domicile that the law attributes to a person independent of a persons residence or intention. It applies to infants, incompetents, and other persons under disabilities that prevent them from acquiring a domicile of choice (Id. at sec 13). (Puno, Concurring and Dissenting Opinion in Makalintal v. COMELEC, G.R. No. 157013, July 10, 2003, En Banc [Austria-Martinez]) 351. What is required to successfully effect a change of domicile? Is a Filipino who becomes an immigrant or permanent resident of a foreign country considered to have changed his domicile?

Held: In Romualdez-Marcos v. COMELEC, we ruled that domicile of origin is not easily lost. To successfully effect a change of domicile, one must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one; and acts which correspond with purpose. This change of domicile is effected by a Filipino who becomes an immigrant or a permanent resident of a foreign country. Thus, we held in Caasi v. Court of Appeals (Supra note 4), viz: Miguels application for immigrant and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an 31

irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor x x x (Id. at 237) The doctrine in Caasi is by no means new. Our election laws have continuously regarded immigrants or permanent residents of a foreign country to have lost their domiciles in the Philippines and hence are not qualified to run for public office (See for instance, Rep. Act No. 7160, section 40(f); B.P. Blg. 52, sec. 4; B.P. Blg. 881, sec. 68). There is no reason not to apply the Caasi ruling in disputes involving the qualification of voters. In essence, both cases concern the fulfillment of the residence requirements. (Puno, Concurring and Dissenting Opinion in Makalintal v. COMELEC, G.R. No. 157013, July 10, 2003, En Banc [AustriaMartinez]) 352. What is the Lone Candidate Law? What are its salient provisions?

Ans.: 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. 353. Who are disqualified to run in a special election under the Lone Candidate Law?

Ans.: 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) b) 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 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. What is the purpose of the law in requiring the filing of certificate of candidacy and in fixing the time limit therefor?

354.

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) 355. 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]) 356. Should the votes cast for the substituted candidate be considered votes for the substitute candidate?

Ans.: 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. 357. What is the effect of the filing of certificate of candidacy by elective officials?

Ans.: 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.

32

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). 358. 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 ones qualifications for public office. The use of a surname, when not intended to mislead or deceive the public as to ones identity, is not within the scope of the provision. (Victorino Salcedo II v. COMELEC, G.R. No. 135886, Aug. 16, 1999, En Banc [Gonzaga-Reyes]) 359. 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 COMELECs 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]) 360. 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, 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. 361. Cite instances when Comelec may or may not validly declare failure of elections.

Held: In Mitmug v. COMELEC, 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 petitioners 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, 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 petitioners 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 33

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, 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]) 362. 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 causes, the Omnibus Election Code denominates them similarly. (Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31, 2000, En Banc [Quisumbing]) 363. 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]) 364. 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, petitioners 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 petitioners 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. 34

Given these circumstances, public respondent cannot be said to have gravely erred in treating petitioners 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]) 365. What are pre-proclamation cases, and exceptions thereto? What Court has jurisdiction over pre-proclamation cases?

Held: 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]) 366. 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 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]) 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]) 367. 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, 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]) 368. 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. X x x. 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) 369. 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? 35

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, 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. (Arthur V. Velayo v. COMELEC, G.R. No. 135613, March 9, 2000, En Banc [Puno]) 370. 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, 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]) 371. 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 petitioners motion for reconsideration, not the COMELEC en banc. 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. (Gementiza v. Commission on Elections, 353 SCRA 724, March 6, 2001, En Banc [Sandoval-Gutierrez]) F. THE LAW OF PUBLIC CORPORATIONS 372. What is an autonomous region?

Ans.: 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 36

Constitution and the national sovereignty as well as the territorial integrity of the Republic of the Philippines. (Sec. 15, Art. X, 1987 Constitution) 373. 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]) 374. 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]) 375. 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 MMDAs function is limited to the delivery of the seven (7) basic services. One of these is transport and traffic management x x x. 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 MMDAs functions. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. This was explicitly stated in the last Committee deliberations prior to the bills presentation to 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]) 376. 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 selfreliant 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 37

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]) 377. What kind of local autonomy is contemplated by the Constitution? What about the 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]) 378. What is the meaning of "devolution"?

Ans: 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) 379. The City of Butuan enacted an ordinance prohibiting the Land Transportation Office (LTO) to register motor vehicles, tricycles in particular, as well as to issue licenses for the driving thereof, contending that these powers have been devolved to local governments under the Local Government Code. Was the City of Butuan correct in its assertion?

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 had 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 are still subject to the guidelines prescribed by the DOTC. (LTO v. City of Butuan, G.R. No. 131512, Jan. 20, 2000, 3rd Div. [Vitug]) 380. The City of Pasig created Barangays Karangalan and Napico and plebiscites were scheduled to ratify said creation. It was found, however, that the two proposed barangays were subject of a pending boundary dispute between the City of Pasig and the Municipality of Cainta in the RTC of Antipolo. Whether or not the plebiscites scheduled should be suspended or cancelled in view of the pending boundary dispute between the two local governments and, if one had already been held, whether it should be nullified.

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 38

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]) 381. Are the Internal Revenue Allotments (IRAs) considered income and, therefore, 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.]) 382. 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 peoples 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]) 383. 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 peoples 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 citys 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 stated 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 39

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]) 384. Discuss the authority of mayors to issue or grant licenses and business permits, and how should it be exercised. Held: The authority of city mayors to issue or grant licenses and business permits is beyond cavil. It is provided for by law. Xxx However, the power to grant or issue licenses or business permits must always be exercised in accordance with law, with utmost observance of the rights of all concerned to due process and equal protection of the law. Succinct and in point is the ruling of this Court, that: x x x While a business may be regulated, such regulation must, however, be within the bounds of reason, i.e., the regulatory ordinance must be reasonable, and its provision cannot be oppressive amounting to an arbitrary interference with the business or calling subject of regulation. A lawful business or calling may not, under the guise of regulation, be unreasonably interfered with even by the exercise of police power. X x x X x x The exercise of police power by the local government is valid unless it contravenes the fundamental law of the land or an act of the legislature, or unless it is against public policy or is unreasonable, oppressive, partial, discriminating or in derogation of a common right. (Balacuit v. CFI of Agusan del Norte, 163 SCRA 182) (Acebedo Optical Company, Inc. v. CA, 329 SCRA 314, 326-327, March 31, 2000, En Banc [Purisima]) 385. 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. (Acebedo Optical Company, Inc. v. CA, 329 SCRA 314, 328, March 31, 2000, En Banc [Purisima]) 386. Acebedo Optical Company, Inc. applied for a permit to engage in the business of running an optical shop. Its application was granted with several conditions. The conditions, in essence, prohibit it from engaging in the practice of optometry as a corporate body or entity. Later, the grant was revoked by the Mayor on the alleged ground that it violated all the conditions of its business permit. Was the revocation valid?

Held: 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. The case of Samahan ng Optometrists sa Pilipinas v. Acebedo International Corporation, G.R. No. 117097, promulgated by this Court on March 21, 1997, is in point. X x x The First Division of this Court x x x ruled in favor of respondent Acebedo International Corporation, holding that the fact that private respondent hires optometrists who practice their profession in the course of their employment in private respondents optical shops, does not translate into a practice of optometry by private respondent itself. The Court further elucidated that in both the old and new Optometry Law, R.A. No. 1998, it is significant to note that there is no prohibition against the hiring by corporations of optometrists. The Court concluded thus: All told, there is no law that prohibits the hiring by corporations of optometrists or considers the hiring by corporations of optometrists as a practice by the corporation itself of the profession of optometry. In the present case, the objective of the imposition of subject conditions on petitioners business permit could be attained by requiring the optometrists in petitioners 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. 40

It is significant to note that during the deliberations of the bicameral conference committee of the Senate and the House of Representatives on R.A. 8050 x x x the committee failed to reach a consensus as to the prohibition on indirect practice of optometry by corporations. (Acebedo Optical Company, Inc. v. CA, 329 SCRA 314, 328-330, March 31, 2000, En Banc [Purisima]) 387. 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]) 388. What are the requisites before a Local Government Unit can validly exercise the power of eminent domain?

Held: In Municipality of Paranaque v. V.M. Realty Corp. (292 SCRA 678, July 20, 1998 [Panganiban]), it was clarified that the requisites before a local government unit can validly exercise the power of eminent domain are: 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; The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless; There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws; 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. 389. 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, 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 boards 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) 390. 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 petitioners 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 mayors 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)

41

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 mayors 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 councils 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 councils 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]). City of Quezon v. Lexber Incorporated, 354 SCRA 493, Mar. 15, 2001, 1st Div. [Ynares-Santiago]) 391. 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) 392. 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, 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 where the Court held that the municipalitys 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) 393. Cite instances when the provincial fiscal may be disqualified to represent in court a particular municipality.

Held: As held in Enriquez, Sr. v. Gimenez, the provincial fiscal may be disqualified to represent in court a particular municipality in the following instances: If and when original jurisdiction of case involving the municipality is vested in the Supreme Court; When the municipality is a party adverse to the provincial government or to some other municipality in the same province; and 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) 394. 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) 395. 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 42

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 lawyers work cannot bind the municipality. (Ramos v. CA, 269 SCRA 34, March 3, 1997) 396. Does the Presidents 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. 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. 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. The public respondent judge therefore committed grave abuse of discretion amounting to lack or excess of jurisdiction in not dismissing the respondents 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]) 397. 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]) 398. 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 43

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]) 399. 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]) 400. 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 Sulongs motion for reconsideration and/or notice of appeal; that the said complainant had not yet complied therewith and his (respondent Sulongs) 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 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 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 44

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 respondents 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]) 401. 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]) 402. 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?

Ans.: 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.

403. 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? Ans.: 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. 404. 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?

Ans.: 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]) 405. 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]) 406. 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. 45

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]) 407. 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 Hagedorns service as mayor, not because of his voluntary renunciation, but because of a legal prohibition. Hagedorns three consecutive terms ended on June 30, 2001. Hagedorns 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 Hagedorns 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 Hagedorns service as mayor. X x x In Hagedorns 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 46

break an elective local officials continuity of service. (Victorino Dennis M. Socrates v. The Commission on Elections, G.R. No. 154512, Nov. 12, 2002, En Banc [Carpio])

408. 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 respondents 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; Arcos v. COMELEC; Lonzanida v. COMELEC; and Adormeo v. COMELEC, 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 officials 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 peoples 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 respondents 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 Romans 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

47

A winner who dislodges in a recall election an incumbent elective local official merely serves the balance of the latters 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 incumbents 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 threeterm 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. 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 candidates 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) 409. 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]) 410. 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. 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-LMs 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 partys 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. 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]) 411. 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 48

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 Governors (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]) 412. 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]) 413. 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]) 414. May local elective officials practice their profession or engage in any occupation? Ans.: Sec. 90, Local Government Code, provides:

SEC. 90. Practice of Profession. (a) 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. (b) Sanggunian members may practice their professions, engage in any occupation, or teach in schools except during session hours: Provided, That sanggunian members who are also members of the Bar shall not: 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; 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; Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and Use property and personnel of the government except when the sanggunian member concerned is defending the interest of the Government. (c) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency: Provided, that the officials concerned do not derive monetary compensation therefrom. 415. 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]) 416. 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.

49

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]) 417. 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]) 418. 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) 419. What are the limitations on recall? Ans.: Section 74, Local Government Code, provides: SEC. 74. Limitations on Recall. (a) Any elective local official may be the subject of a recall election only once during his term of office for loss of confidence. (b) No recall shall take place within one (1) year from the date of the officials assumption to office or one (1) year immediately preceding a regular local election. 420. 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 oneyear 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) 421. 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: 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 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); 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 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])

50

422.

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]) 423. Whether or not a local 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 she 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 officials 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] 424. 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 x x x 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]) G. PUBLIC INTERNATIONAL LAW 425. 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]) 426. 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 Italys Mussolini and Germanys Hitler, the militarism of Japans Hirohito and the communism of Russias Stalin, etc. The sinking of these isms led to the elevation of the rights of 51

the individual against the state. Indeed, some species of human rights have already been accorded universal recognition. Today, the drive to internationalize rights of women and children is also on high gear. 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 individuals 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. The re-examination consigned this pernicious doctrine to the museum of ideas. 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]) 427. 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. 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]) 428. Discuss the Indigenous International Movement. Is the Philippines an active participant in the Indigenous International Movement?

Held: The Indigenous Peoples Rights Act (IPRA) is a recognition of our active participation in the indigenous international movement. The indigenous movement can be seen as the heir to a history of anti-imperialism stretching back to prehistoric times. The movement received a massive impetus during the 1960s from two sources. First, the decolonization of Asia and Africa brought into the limelight the possibility of peoples controlling their own destinies. Second, the right of self-determination was enshrined in the UN Declaration on Human Rights. The rise of the civil rights movement and anti-racism brought to the attention of North American Indians, Aborigines in Australia, and Maori in New Zealand the possibility of fighting for fundamental rights and freedoms. In 1974 and 1975, international indigenous organizations were founded, and during the 1980s, indigenous affairs were on the international agenda. The people of the Philippine Cordillera were the first Asians to take part in the international indigenous movement. It was the Cordillera Peoples Alliance that carried out successful campaigns against the building of the Chico River Dam in 1981-82 and they have since become one of the best-organized indigenous bodies in the world. Presently, there is a growing concern for indigenous rights in the international scene. This came as a result of the increased publicity focused on the continuing disrespect for indigenous human rights and the destruction of the indigenous peoples environment, together with the national governments inability to deal with the situation. Indigenous rights came as a result of both human rights and environmental protection, and have become a part of todays priorities for the international agenda. International organizations and bodies have realized the necessity of applying policies, programs and specific rules concerning IPs in some nations. The World Bank, for example, first adopted a policy on IPs as a result of the dismal experience of projects in Latin America. The World Bank now seeks to apply its current policy on IPs to some of its projects in Asia. This policy has provided an influential model for the projects of the Asian Development Bank. The 1987 Philippine Constitution formally recognizes the existence of ICCs/IPs and declares as a State policy the promotion of their rights within the framework of national unity and development (Section 22, Article II, 1987 Constitution). The IPRA amalgamates the Philippine category of ICCs with the international category of IPs, and is heavily influenced by both the International Labor Organization (ILO) Convention 169 and the United Nations (UN) Draft Declaration on the Rights of Indigenous Peoples. ILO Convention No. 169 is entitled the Convention Concerning Indigenous and Tribal Peoples in Independent Countries (also referred to as the Indigenous and Tribal Peoples Convention, 1989) and was adopted on June 27, 1989. It is based on the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and many other international instruments on the prevention of discrimination. ILO Convention No. 169 revised the Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries passed on June 26, 1957. Developments in international law made it appropriate to adopt new international standards on indigenous peoples with a view to removing the assimilationist orientation of the earlier standards, and recognizing the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development. (Separate Opinion, Puno, J., in Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128, 238-241, Dec. 6, 2000, En Banc) 429. Is sovereignty really absolute and all-encompassing? If no, what are its restrictions and limitations? 52

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]) 430. 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 worldwide 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]) 431. 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: An organized civil government that has control and direction over the armed struggle launched by the rebels; Occupation of a substantial portion of the national territory; Seriousness of the struggle, which must be so widespread thereby leaving no doubt as to the outcome; Willingness on the part of the rebels to observe the rules and customs of war. Discuss the legal consequences that follow recognition of belligerency. Ans.: 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; The legitimate government, once it recognizes the rebels as belligerents, is bound to observe the laws and customs of war in conducting the hostilities; 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; 53

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) 432. Discuss 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) 433. 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) 434. Will the subsequent discovery of weapons of mass destruction in Iraq after its invasion by the US justify the attack initiated by the latter?

Ans.: Even if Iraqs hidden arsenal is discovered or actually used and the United States is justified in its suspicions, that circumstance will not validate the procedure taken against Iraq. It is like searching a person without warrant and curing the irregularity with the discovery of prohibited drugs in his possession. The process cannot be reversed. The warrant must first be issued before the search and seizure can be made. The American invasion was made without permission from the Security Council as required by the UN Charter. Any subsequent discovery of the prohibited biological and chemical weapons will not retroactively legalize that invasion, which was, legally speaking, null and void ab initio. (Justice Isagani A. Cruz, in an article entitled A New World Order written in his column Separate Opinion published in the March 30, 2003 issue of the Philippines Daily Inquirer) 435. What Crimes come within the jurisdiction of the Rome Statute of the International Criminal Court?

Ans.: 1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: The crime of genocide; Crimes against humanity; War crimes; The crime of aggression. 2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations. (Art. 5, Rome Statute of the International Criminal Court) 436. What is Genocide?

Ans.: For the purpose of this Statute, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as: Killing members of the group; Causing serious bodily or mental harm to members of the group; Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intended to prevent births within the group; Forcibly transferring children of the group to another group. (Art. 6, Rome Statute of the International Criminal Court) 437. What are Crimes against Humanity?

Ans.: 1. For the purpose of this Statute, crime against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: Murder; 54

Extermination; Enslavement; Deportation or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; Torture; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence comparable gravity; Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; Enforced disappearance of persons; The crime of apartheid; Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental physical health. 2. For the purpose of paragraph 1:

of as in

or

Attack directed against any civilian population means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; Extermination includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; Enslavement means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; Deportation or forcible transfer of population means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law; Torture means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to lawful, sanctions; Forced pregnancy means the unlawful confinement, of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; Persecution means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; The crime of apartheid means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; Enforced disappearance of persons means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge the deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. 3. For the purpose of this Statute, it is understood that the term gender refers to the two sexes, male and female, within the context of society. The term gender does not indicate any meaning different from the above. (Art. 7, Rome Statute of the International Criminal Court) 438. 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) 439. 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) 440. 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 petitioners (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 55

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 countrys 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]) 441. 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 DFAs determination that a certain person is covered by immunity is only preliminary which has no binding effect in courts. In receiving ex parte the DFAs advice and in motu proprio dismissing the two criminal cases without notice to the prosecution, the latters right to due process was violated. It should be noted that due process is a right of the accused as much as it is of the prosecution. The needed inquiry in what capacity petitioner was acting at the time of the alleged utterances requires for its resolution evidentiary basis that has yet to be presented at the proper time. 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. (Liang v. People, 323 SCRA 692, Jan. 28, 2000, 1st Div. [YnaresSantiago]) 442. 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: Petitioners 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., 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; The Holy See v. Rosario, Jr.; Lasco v. United Nations; and DFA v. NLRC. 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 petitioners 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) 56

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. 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. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1 st Div. [Motion for Reconsideration]) 443. 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. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration]) 444. 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. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1 st Div. [Motion for Reconsideration]) 445. 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. 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. 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. 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 diplomats 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 57

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, 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, 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. 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. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration]) 446. 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. 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 states 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. 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 58

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 officials 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. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration]) 447. 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. 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. 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]) 448. 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. 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. 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 individuals official capacity is a question for the court in which a proceeding is brought, but if the international organization disputes the courts 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. 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. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration]) 449. Discuss the extent of the international officials immunity for official acts. 59

Held: The international officials immunity for official acts may be likened to a consular officials 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 officers official duties. (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration]) 450. 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]) 451. 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; (2) the conduct of public bidding for the repair of a wharf at a United States Naval Station; and (3) the change of employment status of base employees. 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; and (2) the bidding for the operation of barber shops in Clark Air Base in Angeles City. 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]) 452. 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: 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]) 453. 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?

60

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]) 454. 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, 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, the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 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 petitioners 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]) 455. 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) 456. 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, 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 61

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) 457. 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 nature 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]) 458. 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 treatys 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]) 459. 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., 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]) 460. 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 of a fugitive from one state to the other.

62

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. 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. 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 others legal system and judicial process. More pointedly, our duly authorized representatives signature on an extradition treaty signifies our confidence in the capacity and willingness of the other state to protect the basic rights of the person sought to be extradited. 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, 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. 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. 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. 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. 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. Accordingly, the Philippines must be ready and in a position to deliver the accused, should it be found proper. 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. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban]) 461. 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 63

at all, to a courts request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail. Having once escaped the jurisdiction of the requesting state, the reasonable prima facie presumption is that the person would escape again if given the opportunity. 4. Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall make a prima facie finding whether the petition is sufficient in form and substance, whether it complies with the Extradition Treaty and Law, and whether the person sought is extraditable. The magistrate has discretion to require the petitioner to submit further documentation, or to personally examine the affiants or witnesses. If convinced that a prima facie case exists, the judge immediately issues a warrant for the arrest of the potential extraditee and summons him or her to answer and to appear at scheduled hearings on the petition. 5. After being taken into custody, potential extraditees may apply for bail. Since the applicants have a history of absconding, they have the burden of showing that (a) there is no flight risk and no danger to the community; and (b) there exist special, humanitarian or compelling circumstances. The grounds used by the highest court in the requesting state for the grant of bail therein may be considered, under the principle of reciprocity as a special circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial discretion in the context of the peculiar facts of each case. 6. Potential extraditees are entitled to the rights to due process and to fundamental fairness. Due process does not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient due to the flight risk involved. Indeed, available during the hearings on the petition and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition. 7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of democracy and the conscience of society. But it is also well aware of the limitations of its authority and of the need for respect for the prerogatives of the other co-equal and co-independent organs of government. 8. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the presidential power to conduct foreign relations and to implement treaties. Thus, the Executive Department of government has broad discretion in its duty and power of implementation. 9. On the other hand, courts merely perform oversight functions and exercise review authority to prevent or excise grave abuse and tyranny. They should not allow contortions, delays and over-due process every little step of the way, lest these summary extradition proceedings become not only inutile but also sources of international embarrassment due to our inability to comply in good faith with a treaty partners simple request to return a fugitive. Worse, our country should not be converted into a dubious haven where fugitives and escapees can unreasonably delay, mummify, mock, frustrate, checkmate and defeat the quest for bilateral justice and international cooperation. 10. At bottom, extradition proceedings should be conducted with all deliberate speed to determine compliance with the Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid the legalistic contortions, delays and technicalities that may negate that purpose. (Government of the United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban]) 462. 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]) 463. 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]) 464. Do 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, 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." 64

(BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena]) 465. 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]) 466. 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. (Salonga & Yap, Public International Law, 5 th 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]) 467. What are the two types of most-favored nation clause?

Held: 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) 468. Discuss 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. 469. Discuss the nature of ratification 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. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena]) 470. How is the consent of the State to be bound by a treaty by ratification expressed?

Held: 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 65

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]) 471. Discuss the effect of the ratification of the Visiting Forces Agreement (VFA).

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. 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. 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. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, 342 SCRA 449, 492-493, En Banc [Buena]) 472. 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]) 473. Explain the "rebus sic stantibus" rule (i.e., things remaining as they are).

Held: According to Jessup, the doctrine constitutes an attempt to formulate a legal principle which would justify nonperformance of a treaty obligation if the conditions with rela tion 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. (Santos III v. Northwest Orient Airlines, 210 SCRA 256, June 23, 1992) 474. Does the rebus sic stantibus rule operate automatically to render a treaty inoperative?

Held: 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) 475. 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)

66

67