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 I

That written instrument enacted by direct action of the

people by which the fundamental powers of the
government are established, limited and defined, and by
which those powers are distributed among the several
departments for their safe and useful exercise for the
benefit of the body politic.
It is the basic and paramount law to which all other laws
must conform and to which all persons, including the
highest officials of the land, must defer. No act shall be
valid, how noble its intention, if it conflicts with the
Constitution. The Constitution must ever remain supreme.
All must bow to the mandate of this law. Right or wrong,
the Constitution must be upheld as long as the sovereign
people have not changed it.

A. POLITICAL LAW
That branch of public law which deals with the
organization and operations of the
governmental organs of the State and defines the
relations of the State with the inhabitants of its
territory.
Scope/Divisions of Political Law:
1) Constitutional Lawthe study of the maintenance
Enacted (conventional)
formally struck off at a
definite time and place
following a conscious or
deliberate effort taken by a
constituent body or ruler

2)

3)
4)
5)

Evolved (Cumulative)
the result of political
evolution, not inaugurated
at any specific time but
changing by accretion
rather than by any
systematic method

of the proper balance between authority as

represented by the three inherent powers of the
state and liberty as guaranteed by the Bill of
Rights.
Administrative Law-- That branch of public
law which fixes the organization, determines
the competence of administrative authorities who
executes the law, and indicates to the individual
remedies for the violation of his right.
Law on Municipal Corporations
Law of Public Officers
Elections Law

Basis:
1) 1987 Constitution
2) 1973 and 1935
Constitutions
3) Organic laws made to
apply to the
Philippines
a) Philippine Bill
of 1902
b) Jones Law of
1916
c) TydingsMcDuffie Law
of 1934
4) Statutes, executive
orders and decrees, and
5) US Constitution

Classification:
1. Written or unwritten
Written
Unwritten
one whose precepts are integrated into a single,
embodied in one
concrete form but are scattered
document or set of
in various sources
documents
-consists of rules which
have not been
Examples:
a. statutes of
fundamentalcharacter;
b. judicial decisions;
c. commentaries of publicists;
d. customs and traditions;
e. certain common law
principles
2. Enacted (conventional) or Evolved (Cumulative)

3. Rigid Flexible
Rigid

Constitution
legislation direct from the
people

Statute
legislation from the peoples
representative;

states general principles;

provides the details of the

subject matter of
which it treats;
intended primarily to meet
existing conditions
only;
it conforms to the
Constitution

intended not merely to

meet existing
conditions;
it is the fundamental law of
the State

Flexible

judicial decisions

PHILIPPINE CONSTITUTION
Constitutionit is the document, which serves as the
fundamental law of the State; that body of rules and
maxims in accordance with which the power of
sovereignty are habitually exercised.

one that can be amended

only by a formal and
usually difficult process

one that can be changed by

ordinary legislation

- The Philippine Constitution is written, conventional and

rigid. It is embodied in one document and can be
amended only by a formal and usually difficult process.
Interpretation:
1) Verba Legiswhenever possible, the words used
in the Constitution must be given their ordinary
meaning except where technical terms are
employed.
2) When there is Ambiguityratio legis et anima-A doubtful provision shall be examined in the light
of the history of the times and the conditions and
circumstances under which the Constitution was
framed. (Civil Liberties Union vs. Executive

Secretary, 194 SCRA 317)

3) Ut magis valeat quam pereatthe

Constitution has to be interpreted as a whole.

(Francisco vs. HR, G.R. No. 160261,

November 10, 2003) If the plain meaning of

the word is not found to be clear, resort to other

aids is availableconstrue the Constitution from
what appears upon its face. The proper
interpretation, therefore, depends more on how it
was understood by the people adopting it than in
the framers understanding thereof.
In case of doubt, the provision should be considered
as self-executing; mandatory rather than directory;
and prospective rather than retroactive.
Self-executing provisionone which is complete in
itself and becomes operative without the aid of
supplementary or enabling legislation, or that which
supplies a sufficient rule by means of which the right it
grants may be enjoyed or protected.
Essential Qualities of the Written Constitution:
1) Broad;
2) Brief; and
3) Definite.
Essential parts of a good written Constitution:
a) Constitution
of
Libertysets
forth
the
fundamental civil and political rights of the citizens
and imposes limitations on the powers of the
government as a means of securing the
enjoyment of those rights. e.g. Bill of Rights
b) Constitution
of
Governmentoutlines
the
organization of the government, enumerates its
powers, lays down certain rules relative to its
administration and defines the electorate. e .g.
Legislative, Executive and Judicial Departments,
Constitutional Commissions
c) Constitution of Sovereigntythe provisions
pointing out the mode or procedure in accordance
with which formal changes in the fundamental law
may be brought about. e.g. Art. XVIIAmendments or Revisions
Effects of Declaration of Unconstitutionality:
2 Views:
a) ORTHODOX VIEW
i. an unconstitutional act is not a law;
ii. it confers no rights;
iii.
it imposes no duties;
iv.
it affords no protection;
v. it creates no office;

vi.
it is inoperative, as if it had not been
passed at all.
b) MODERN VIEWCourts simply refuse to
recognize the law and determine the rights of the
parties as if the statute had no existence. Certain
legal effects of the statute prior to its declaration
of unconstitutionality may be recognized. Thus, a
public
officer
who
implemented
an
unconstitutional law prior to the declaration of
unconstitutionality cannot be held liable (Ynot vs.
IAC).
Partial Unconstitutionality
Requisites:
a) The legislature must be willing to retain the valid
portion(s), usually shown by the presence of a
separability clause in the lawINTENT OF THE
LEGISLATIVE; and
b) The valid portion can stand independently as
lawINDEPENDENCE OF THE PROVISIONS.

Distinguish sovereignty from dominion.

Held: Sovereignty is the right to exercise the
functions of a State to the exclusion of any other State. It
is often referred to as the power of imperium, which is
defined as the government authority possessed by the
State. On the other hand, dominion, or dominium, is the
capacity of the State to own or acquire property such as
lands and natural resources. (Separate Opinion,

Kapunan, J., in Isagani Cruz v. Secretary of DENR,

G.R. No. 135385, Dec. 6, 2000, En Banc, See
Footnote 86)
What is the Doctrine of Constitutional Supremacy?
Held:
Under the doctrine of constitutional
supremacy, if a law or contract violates any norm of the

Constitution, that law or contract, whether promulgated

by the legislative or by the executive branch or entered
into by private persons for private purposes, is null and
void and without any force and effect. Thus, since the
Constitution is the fundamental, paramount and supreme
law of the nation, it is deemed written in every statute
and contract. (Manila Prince Hotel v. GSIS, 267

SCRA 408 [1997] [Bellosillo])

What are self-executing and non-self executing

provisions of the Constitution?
Held: A provision which lays down a general
principle, such as those found in Article II of the 1987
Constitution, is usually not self-executing. But a provision
which is complete in itself and becomes operative without
the aid of supplementary or enabling legislation, or that
which supplies sufficient rule by means of which the right
it grants may be enjoyed or protected, is self-executing.
Thus a constitutional provision is self-executing if the
nature and extent of the right conferred and the liability
imposed are fixed by the Constitution itself, so that they
can be determined by an examination and construction of
its terms, and there is no language indicating that the
subject is referred to the legislature for action. (Manila

Prince Hotel v. GSIS, 267 SCRA 408 [1997]

[Bellosillo])
Are provisions of the Constitution self-executing or
non-self executing? Why?

Held: Unless it is expressly provided that a

legislative act is necessary to enforce a constitutional
mandate, the presumption now is that all provisions are
self-executing. If the constitutional provisions are treated
as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically
nullify the mandate of the fundamental law. This can be
cataclysmic. (Manila Prince Hotel v. GSIS, 267 SCRA

408 [1997] [Bellosillo])

What is the Filipino First Policy enshrined in the

Constitution?
Ans.: In the grant of rights, privileges, and
concessions covering the national economy and
patrimony, the State shall give preference to qualified
Filipinos.
(Sec. 10, 2nd par., Art. XII, 1987

Constitution)

Is the Filipino First Policy expressed in Section

10, Article XII of the Constitution a self-executing
provision?
Held: Yes. It is a mandatory, positive command
which is complete in itself and which needs no further
guidelines or implementing laws or rules for its
enforcement. From its very words the provision does not
require any legislation to put it in operation. It is per se
judicially enforceable. When our Constitution mandates
that [i]n the grant of rights, privileges, and concessions

covering the national economy and patrimony, the State

shall give preference to qualified Filipinos, it means just
that qualified Filipinos must be preferred. (Manila
Prince Hotel v. GSIS, G.R. No. 118295, May 2,
1997, 267 SCRA 408 [Bellosillo])
Give examples of non-self executing provisions of
the Constitution.
Held: By its very nature, Article II of the
Constitution is a declaration of principles and state
policies. These principles in Article II are not intended to
be self-executing principles ready for enforcement through
the courts. They are used by the judiciary as aids or as
guides in the exercise of its power of judicial review, and
by the legislature in its enactment of laws. As held in the
leading case of Kilosbayan, Incorporated v. Morato (246
SCRA 540, 564, July 17, 1995), the principles and state
policies enumerated in Article II and some sections of
Article XII are not self-executing provisions, the disregard
of which can give rise to a cause of action in courts. They
do not embody judicially enforceable constitutional rights
but guidelines for legislation. (Tanada v. Angara, 272

SCRA 18 [1997], En Banc [Panganiban])

When are acts of persons considered State action

covered by the Constitution?
Held: In constitutional jurisprudence, the act of
persons distinct from the government are considered
state action covered by the Constitution (1) when the
activity it engages in is a public function; (2) when the
government is so significantly involved with the private
actor as to make the government responsible for his
action; and (3) when the government has approved or
authorized the action. (Manila Prince Hotel v. GSIS,

267 SCRA 408 [1997] [Bellosillo])

PREAMBLE

WE,
THE
SOVEREIGN
FILIPINO
PEOPLE,
IMPLORING THE AID OF ALMIGHTY GOD, IN
ORDER TO BUILD A JUST AND HUMANE SOCIETY
AND ESTABLISH A GOVERNMENT THAT SHALL
EMBODY OUR IDEALS AND ASPIRATIONS,
PROMOTE THE COMMON GOOD, CONSERVE AND
DEVELOP OUR PATRIMONY, AND SECURE TO
OURSELVES AND OUR POSTERITY THE BLESSINGS
OF INDEPENDENCE AND DEMOCRACY UNDER THE
RULE OF LAW AND A REGIME OF TRUTH, JUSTICE,
FREEDOM, LOVE, EQUALITY, AND PEACE, DO
ORDAIN AND PROMULGATE THIS CONSTITUTION.
The Preamble is not a source of power or right for any
department of government. It sets down the origin,
scope, and purpose of the Constitution. It bears witness
to the fact that the Constitution is the manifestation of the
sovereign will of the Filipino people.
The identification of the Filipino people as the author of
the constitution calls attention to an important principle:
that the document is not just the work of representatives
of the people but of the people themselves who put their
mark approval by ratifying it in a plebiscite.
1) It does not confer rights nor impose duties.
2) Indicates authorship of the Constitution;
enumerates the primary aims and aspirations of
the framers; and serves as an aid in the
construction of the Constitution.
ARTICLE I
NATIONAL TERRITORY

The national territory comprises the Philippine

archipelago, with all the islands and waters
embraced therein, and all other territories over
which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial and
aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves, and other
submarines areas. The waters around, between
and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form
part of the internal waters of the Philippines.
Two (2) Parts of the National Territory:
1) The Philippine archipelago with all the islands and
waters embraced therein; and
2) All other territories over which the Philippines has
sovereignty or jurisdiction.
Do you consider the Spratlys Group of Islands as
part of Philippine
Archipelago? _Spratlys Group of Islands is not part of
the Philippine Archipelago because it is too far away from
the three main islands of the Philippines. It is found,
geographically, almost in the middle of the South China
Sea. It is not part of the Philippine Archipelago.
Historically, when we talk about Philippine Archipelago, we
refer to those islands and waters that were ceded by the
Spain to the United States by virtue of Treaty of Paris in
1898. And that did not include the Spratlys Group of
Islands yet. Under the treaty, the islands that were ceded
by Spain were identifiedthe main islandsLuzon,
Visayas and Mindanao. Clearly, it did not include the
Spratlys Group of Islands.
Spratlys Group of Islands was only discovered sometime
in the 1950s by a Filipino, Tomas Cloma. The latter
waived his rights over the islands in favor of the Philippine
Government. In effect, the government stepped into the
shoes of the discoverer. By then President Marcos, what
he did the moment Tomas Cloma waived his rights over
3

the Spratlys Group of Islands, is to have the islands

immediately occupied by Philippine troops. He then issued
PD 1596, constituting the Spratlys Group of Islands as a
regular municipality claiming it the Municipality of
Kalayaan placing it under the Province of Palawan. And
then he had the elections immediately held in the islands
so from that time on until now, we continue to hold
elections there. The Philippine exercises not only
jurisdiction but also sovereignty over the Spratlys Group
of Islands, yet it is not part of the Philippine Archipelago.
Geographically, it is too far away from the Philippine
Archipelago.

2. Those contemplated under Article I, 1973

Constitutionbelonging to the
Philippines by historic right or legal title;
PD 1596, June 11, 1978-- constituting the Spratlys Group
of Islands as a regular municipality claiming it the
Municipality of Kalayaan, placing it under the Province of
Palawan.

On May 20, 1980, the Philippines registered its claim with

the UN Secretariat.
The Philippine claim to the islands is justified by reason of
history, indispensable need, and effective occupation and
control. Thus, in accordance with the international law,
the Spratlys Group of islands is subject to the sovereignty
of the Philippines.

This second sentence of Article I is not the Archipelago

Doctrine. This is only our restatement/reaffirmation of our
adherence to the Archipelago Doctrine simply because we
are an archipelago consisting of 7,107 islands. It is
essential for our national survival that we adhere to the
archipelago principle.

Do you consider the Spratlys group of Islands as

part of our National Territory?
Yes. Article I of the Constitution provides: The national

territory comprises the

Philippine archipelago, x x x, and all other territories over
which the Philippines has sovereignty or jurisdiction, x x
x. The Spratlys Group of islands falls under the second

phrase and all other territories over which the Philippines

has sovereignty or jurisdiction. It is part of our national
territory because Philippines exercise sovereignty (through
election of public officials) over Spratlys Group of Islands.
What was the basis of the Philippines claim over
the Spratlys?
Through discovery of Tomas Cloma and occupation
Modes of acquiring territories:
1) Discovery and Occupationwhich are terra nullius
(land belonging to no one)
Doctrine of Effective Occupationdiscovery alone is
not enough. Mere discovery gives only an inchoate right
to the discoverer. For title to finally vest, discovery must
be followed by effective occupation in a reasonable
time and attestation of the same.
2) Cession by Treaty. Examples are Treaty of
Paris, treaty between France and US ceding
Louisiana to the latter and treaty between Russia
and US ceding Alaska to the latter;
3) Prescriptionwhich is a concept under the Civil
Code. Territory may also be acquired through
continuous and uninterrupted possession over a
long period of time. However, in international law,
there is no rule of thumb as to the length of time
for acquisition of territory through prescription. In
this connection, consider the Grotius Doctrine
of immemorial prescription, which speaks of
uninterrupted possession going beyond memory.
4) Conquest or Subjugation (conquistadores)
this is no longer recognized inasmuch as the UN
Charter prohibits resort to threat or use of force
against the territorial integrity or political
independence of any state; and
5) Accretionanother concept in the Civil Code. It
is the increase in the land area of the State, either
through natural means, or artificially, through
human labor.
Other territories over which the Philippines has
sovereignty or jurisdiction:
1. Batanes(1935 Constitution);

xxx The waters around, between and connecting

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

Archipelago Doctrinemerely emphasizes the unity of

lands and waters. It is a body of waters interconnected
with other natural features. Under the United Nation
Convention on the Law of Sea (UNCLOS), it consists of
drawing imaginary baseline connecting the outermost
islands of the archipelago in which all waters, islands is
considered as one integrated whole. An archipelago is
defined as group of islands, interconnecting waters and
other natural features which are so closely interrelated
that such islands, waters and natural features form an
intrinsic geographical, economical and political entity, or
which historically been regarded as such.
Correlate this doctrine to right of innocent of passage,
right of arrival under stress and UNCLOS requiring the
designation of archipelagic seaways so that foreign
vessels may pas through an archipelago.
Components of National Territory:
i. Terrestrialland mass on which the inhabitants live;
ii.
Fluvialmaritime;
a. Internal or national watersbodies of water
within the land mass, among them are:
i. Riverswhich may be:
1. National
2. Boundarydivides the territories of States
3. Internationalflows thru various States
a. Thalweg Doctrinefor boundary rivers, in
the absence of an agreement between the
riparian states, the boundary line is laid on the
middle of the main navigable channel.
b. Middle of the Bridge Doctrinewhere there
is a bridge over a boundary river, the boundary
line is the middle or center of the bridge.
ii. Bays and gulfsa bay is a well-marked
indentation whose penetration is in such proportion to
the width of its mouth as to contain a land-locked
waters and constitutes more than a curvature of the
coast. Also referred to as juridical bay. The area
must be as large as, or larger than, a semi-circle
whose diameter is a line drawn across the mouth of
such indentation, or if the mouth is less than 24 miles
wide.
e.g. Hudson Bay in Canada, one whose waters are
considered internal because of the existence of a
historic title.
iii. Straitsnarrow passageways connecting 2 bodies
of water. If the distance between the 2 opposite coast
4

is not more than 6 miles, they are considered internal

waters.
In international law, when a strait within a country
has a width of more than six (6) miles, the center lane
in excess of the three (3) miles on both sides is
considered international waters.
iv. Canalsthe most famous is the Suez Canal,
which is neutralized, and the Panama Canal, which is
open to everyone in times of war or peace.
b. Archipelagic watersare the waters enclosed by
the archipelagic baselines, regardless of their depth or
distance from the coast.
Archipelagic Statea state made up wholly of
one or two archipelagos. It may include other
islands.
Straight Archipelagic Baselineto determine
the archipelagic waters, the state shall draw
straight baselines connecting the outermost points
of the outermost islands and drying reefs,
provided that the ratio of the area of the water to
the area of the land, including atolls, is between
1:1 and 9:1. The length of such baselines shall
not exceed 100 nautical miles, except up to 3% of
the total number of baselines enclosing any
archipelago may exceed that length, up to a
maximum 125 miles. The baselines drawn should
not depart, to any appreciable extent, from the
general configuration of the archipelago. All the
waters within the baselines shall then be
considered internal waters. The breadth of the 12mile territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf
shall then be measured from the archipelagic
baselines.
Vessels may be allowed innocent passage
within the archipelagic waters, but this right may
be suspended, after publication, in the interest of
international security. The coastal state may also
designate archipelagic sea lanes for continuous,
unobstructed transit of vessels.

2. To punish infringement of the above laws and

regulations committed within its territory.
e. Exclusive Economic Zoneshall not extend beyond
200 nautical miles from the archipelagic baselines.
f. Continental shelfit is the seabed and subsoil of the
submarine areas extending beyond the Philippine
territorial sea throughout the natural prolongation of the
land territory. It extends up to:
i. The outer edge of the continental margin; or
ii. A distance of 200 nautical miles from the
archipelagic baselines, whichever is the farthest.
The continental shelf does not form part of the Philippine
territory. The
Philippines has the sovereign rights over the continental
shelf for the purpose of exploring it and exploiting its
natural resources.
g. High Seastreated as res communes, thus, not
territory of any particular State. These are the waters
which do not constitute the internal waters, archipelagic
waters, territorial sea and exclusive economic zones of a
state. They are beyond the jurisdiction and sovereign
rights of States.
Freedom of navigationrefers to the right to sail ship
on the high sea, subject to international law and the laws
of the flag of the state.
iii.
Aerialthis refers to the air space above the land
and waters of the
State (See Discussions under International Law)

ARTICLE II
DECLARATION OF PRINCIPLES AND
STATE POLICIES
Sec. 1, Article II

The Philippines is a democratic and republican

State. Sovereignty resides in the people and
all government authority emanates from
them.
(Relate this to Article XI)

c. Territorial Seathe belt of the sea located between

the coast and the internal waters of the coastal state on
the other hand, and the high seas on the other,
extending up to 12 nautical miles from the low-water
mark, or in the case of archipelagic states, from the
baselines.
Baselineis a line from which the breadth of the
territorial sea, the contiguous zone and the exclusive
economic zone is measured in order to determine the
maritime boundary of the coastal state.
Types of baseline:
i. Normal Baseline Method
ii. Straight Baseline method
d. Contiguous Zoneextends up to 12 nautical miles
from the territorial sea; this shall not exceed 24 nautical
miles from the archipelagic baselines.
The coastal state may exercise limited jurisdiction
over the contiguous zone:
1. To prevent infringement of customs, fiscal
immigration or sanitary laws and regulations
within its territory or territorial sea; and

Essential
features:
Representation
and
Renovation.
Manifestations:
1) Ours is a government of law and not of men
2)
3)
4)
5)
6)

(Villavicencio vs. Lukban, 39 Phil 778)

Rule of the majority. (Plurality in elections)

Accountability of public officials
Bill of rights
Legislature cannot pass irrepealable laws.
Separation of powers.

Republicanism

What is a republican form of government?

It is a government of the people, by the people, and

for the people, a representative government wherein
the powers and duties of government are exercised
and discharged for the common good and
welfare.thus, the supreme power resides on the
body of people.
Characteristics
government:

of

republican

form

of

1) The people do not govern themselves directly

but through their representatives;
2) It is founded upon popular suffrage;
3) There is the tripartite system of the
government, the mutual interdependence of
the three departments of the government.
STATEa community of persons, more or less
numerous, permanently occupying a definite portion
of territory, independent of external control, and
possessing a government to which a great body of
inhabitants render habitual obedience. (CIR vs.

Campos Rueda, 42 SCRA 23)

State vs. Nation

State is a legal or juristic concept while a Nation is
an ethnic or racial concept
State vs. Government
State possesses a government to which a great
body of inhabitants render habitual obedience while
a Government is merely an instrumentality of the
State through which the will of the State is
implemented and realized.
Elements of State:
1) Peoplethe inhabitants of the State; the #
of which is capable for self-sufficiency and
self-defense; of both sexes for perpetuity.
a. Inhabitants;
b. Citizens;
c. Electors.
2) Territorya fixed portion of the surface of
the earth inhabited by the people of the
State.
3) Governmentthe agency or instrumentality
through which the will of the State is
formulated, expressed and realized.
De Jure vs. De Facto
De Jure has a rightful title but no power or control,
either because the same has been withdrawn from it
or because it has not yet actually entered into the
exercise thereof while a De Facto Actually
exercises the power or control but without legal title.
a) De facto propergovernment that gets
possession and control of, or usurps, by force
or by the voice of the majority, the rightful
legal government and maintains itself against
the will of the latter;
b) Government of Paramount Forces
established and maintained by the military
forces who invade and occupy a territory of
the enemy in the course of war;
c) Independent Governmentestablished by
the inhabitants of the country who rise in
insurrection against the parent State.
Presidential vs. Parliamentary
1) In Presidential, there is separation of
legislative and executive powers. The first is
lodged in the President and the second is
vested in Congress while in Parliamentary
there is fusion of both executive and
legislative powers in Parliament, although

the actual exercise of the executive powers is

vested in a Prime Minister who is chosen by,
and accountable to, Parliament.
2) In Presidential it embodies interdependence
by separation and coordination while in
Parliamentary,
It
embodies
interdependence by integration.
Doctrine of Parens Patriaethe government as
guardian of the rights of the people may initiate legal
actions for and in behalf of particular individual.

(Government of the Philippine Islands vs.

Monte de Piedad, 35 SCRA 738; Cabaas vs.
Pilapil, 58 SCRA 94)

4) SovereigntyIt is the right to exercise the

functions of a State to the exclusion of any
other State.
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. In its Declaration of Principles and State
Policies, the Constitution 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. 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.
Government of Laws and Not of Men.
sovereignty of the people also includes the concept
that government officials have only the authority
given them by law and defined by law, and such
authority continues only with the consent of the
people.
Kinds of Sovereignty:
a) Legalthe power to issue final commands;
b) Politicalthe sum total of all the influences
which lie behind the law;
c) Internalthe supreme power over everything
within its territory;
d) Externalalso known as independence
freedom from external control.
Characteristics:
i. Permanence
ii.
Exclusiveness
iii.
Comprehensiveness
iv.
Absoluteness
v.
Indivisibility
vi.
Inalienability
vii.
Imprescriptibility
Sovereignty, often referred to as Imperiumis the
States authority to govern; it includes passing laws
governing a territory, maintaining peace and order
over it, and defending it against foreign invasion.
6

It is the government authority possessed by the

State expressed in the concept of sovereignty.

Discuss the basis of the doctrine of State immunity

from suit.

Dominiumis the capacity of the State to own or

acquire property such as lands and natural
resources. (Lee Hong Hok vs. David, No. L-

Held: The basic postulate enshrined in the

Constitution that [t]he State may not be sued without its
consent, reflects nothing less than a recognition of the
sovereign character of the State and an express
affirmation of the unwritten rule effectively insulating it
from the jurisdiction of courts. It is based on the very
essence of sovereignty. As has been aptly observed by
Justice Holmes, a sovereign is exempt from suit, not
because of any formal conception or obsolete theory, but
on the logical and practical ground that there can be no
legal right as against the authority that makes the law on
which the right depends. True, the doctrine, not too
infrequently, is derisively called the royal prerogative of
dishonesty because it grants the state the prerogative to
defeat any legitimate claim against it by simply invoking
its non-suability. We have had occasion to explain in its
defense, however, that a continued adherence to the
doctrine of non-suability cannot be deplored, for the loss
of governmental efficiency and the obstacle to the
performance of its multifarious functions would be far
greater in severity than the inconvenience that may be
caused private parties, if such fundamental principle is to
be abandoned and the availability of judicial remedy is not
to be accordingly restricted.
(Department of

30389, December 27, 1972; Separate Opinion

of Justice Kapunan in Cruz vs. Secretary of
DENR, G.R. No. 135385, December 2000)

Effect of Belligerent Occupationthere is no

change in sovereignty. However, political laws,
except those of treason, are suspended; municipal
laws remain in force unless changed by the
belligerent occupant.
Principle of Jus Postliminiumat the end of the
occupation, when the occupant is ousted from the
territory, the political laws which have been
suspended shall automatically become effective
again. (Peralta vs. Director of Prisons, No.

L049, November 12, 1945)

Effect of Change of Sovereigntypolitical laws of

the former sovereign are abrogated unless they are
expressly reenacted by the affirmative act of the new
sovereign. Municipal laws remain in force.

(Macariola vs. Asuncion, Adm. Case No. 133-J,

May31, 1982)
Effect of Revolutionary Governmentit is
bound by no constitution. However, it did not
repudiate the Covenant or Declaration in the same
way it repudiated the Constitution. As the de jure
government, the revolutionary government could not
escape responsibility for the States good faith
compliance with its treaty obligations under
international law. During the interregnum when no
constitution or Bill of Rights existed, directives and
orders issued by government officers did not exceed
the authority granted them by the revolutionary
government. The directives or orders should not
have also violated the Covenant or the Declaration.

(Republic vs. Sandiganbayan,

104768, July 21, 2003)

G.R.

No.

Jurisdictionis the manifestation of sovereignty.

a) Territorialpower of the State over persons
and things within its territory subject to its
control and protection.
b) Personalpower of the State over its
nationals, which may be exercised by the
state even if the individual is outside the
territory of the State.
c) Extraterritorialpower of the State over
persons, things or acts beyond its territorial
limits by reason of their effects to its
territory.

The Doctrine of State Immunity from Suit

Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993

[Vitug])

Is the rule absolute, i.e., that the State may not be

sued at all? How may consent of the State to be
sued given?
Held: The rule, in any case, is not really absolute
for it does not say that the state may not be sued under
any circumstances. On the contrary x x x the doctrine
only conveys, the state may not be sued without its
consent; its clear import then is that the State may at
times be sued. The State's consent may be given either
expressly or impliedly. Express consent may be made
through a general law (i.e., Commonwealth Act No. 327,

as amended by Presidential Decree No. 1445 [Sections

49-50], which requires that all money claims against the
government must first be filed with the Commission on
Audit which must act upon it within sixty days. Rejection
of the claim will authorize the claimant to elevate the
matter to the Supreme Court on certiorari and, in effect,
sue the State thereby) or a special law.
In this
jurisdiction, the general law waiving the immunity of the
state from suit is found in Act No. 3083, where the
Philippine government consents and submits to be sued
upon any money claim involving liability arising from
contract, express or implied, which could serve as a basis
of civil action between the private parties. Implied
consent, on the other hand, is conceded when the State
itself commences litigation, thus opening itself to a
counterclaim or when it enters into a contract. In this
situation, the government is deemed to have descended
to the level of the other contracting party and to have
divested itself of its sovereign immunity. (Department of

Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993

[Vitug])
The rule that when the State enters into a contract
with a private individual or entity, it is deemed to
have descended to the level of that private
individual or entity and, therefore, is deemed to
have tacitly given its consent to be sued, is that
without any qualification? What is the Restrictive
Doctrine of State Immunity from Suit?
7

Held: This rule x x x is not x x x without

qualification.
Not all contracts entered into by the
government operate as a waiver of its non-suability;
distinction must still be made between one which is
executed in the exercise of its sovereign function and
another which is done in its proprietary capacity.
In United States of America v. Ruiz (136 SCRA
487), where the questioned transaction dealt with the
improvements on the wharves in the naval installation at
Subic Bay, we held:
The traditional rule of immunity exempts
a State from being sued in the courts of another
State without its consent or waiver. This rule is a
necessary consequence of the principle of
independence and equality of States. However,
the rules of International Law are not petrified;
they are constantly developing and evolving. And
because the activities of states have multiplied, it
has been necessary to distinguish them - between
sovereign and governmental acts (jure imperii)
and private, commercial and proprietary acts (jure
gestionis). The result is that State immunity now
extends only to acts jure imperii. The restrictive
application of State immunity is now the rule in
the United States, the United Kingdom and other
states in Western Europe.
Xxx
The restrictive application of State
immunity is proper only when the proceedings
arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic
affairs. Stated differently, a State may be said to
have descended to the level of an individual and
can thus be deemed to have tacitly given its
consent to be sued only when it enters into
business contracts. It does not apply where the
contracts relate to the exercise of its sovereign
functions. In this case the projects are an integral
part of the naval base which is devoted to the
defense of both the United States and the
Philippines, indisputably a function of the
government of the highest order; they are not
utilized for nor dedicated to commercial or
business purposes.

(Department of Agriculture v. NLRC, 227 SCRA

693, Nov. 11, 1993 [Vitug])
When is a suit against a public official deemed to
be a suit against the State? Discuss.

Held: 1. The doctrine of state immunity from suit

applies to complaints filed against public officials for acts
done in the performance of their duties. The rule is that
the suit must be regarded as one against the State where
the satisfaction of the judgment against the public official
concerned will require the State itself to perform a
positive act, such as appropriation of the amount
necessary to pay the damages awarded to the plaintiff.
The rule does not apply where the public official is
charged in his official capacity for acts that are unlawful
and injurious to the rights of others. Public officials are
not exempt, in their personal capacity, from liability
arising from acts committed in bad faith.

Neither does it apply where the public official is

clearly being sued not in his official capacity but in his
personal capacity, although the acts complained of may
have been committed while he occupied a public position.

(Amado J. Lansang v. CA, G.R. No. 102667, Feb. 23,

2000, 2nd Div. [Quisumbing])

2. As early as 1954, this Court has pronounced

that an officer cannot shelter himself by the plea that he
is a public agent acting under the color of his office when
his acts are wholly without authority. Until recently in
1991 (Chavez v. Sandiganbayan, 193 SCRA 282 [1991]),
this doctrine still found application, this Court saying that
immunity from suit cannot institutionalize irresponsibility
and non-accountability nor grant a privileged status not
claimed by any other official of the Republic. (Republic

v. Sandoval, 220 SCRA 124, March 19, 1993, En

Banc [Campos, Jr.])
State instances when a suit against the State is
proper.
Held: Some instances when a suit against the
State is proper are:

1) When the Republic is sued by name;

2) When the suit is against an unincorporated
government agency;
3) When the suit is on its face against a
government officer but the case is such that
ultimate liability will belong not to the officer
but to the government.

Republic v. Sandoval, 220 SCRA 124, March 19,

1993, En Banc [Campos, Jr.])

Hundreds of landless peasants, farmers and

farmworkers marched in Mendiola on their way to
Malacanang protesting against the implementation
of the Comprehensive Agrarian Reform Program of
the government. As the demonstration became
unruly, police and military personnel assigned in
the area violently dispersed the rallyists causing
deaths and injuries to several demonstrators, in
what is now referred to as the infamous Mendiola
Massacre. The next day, an indignation rally was
held where no less than the President herself
joined. In that rally, she promised to look into the
plight of the victims and their heirs and she
created a Task Force to investigate the cause of the
Mendiola massacre. After investigation, the Task
Force found that although initially, the police and
military personnel assigned in the area performed
their functions in accordance with law but when
later they fired their guns directlty at the
demonstrators, they exceeded their authority.
Consequently, the Task Force recommended that
the individual police and military officers involved
be prosecuted criminally and for the government to
indemnify the victims and/or their heirs. For the
governments failure to indemnify the victims and
their heirs, the latter brought an action for
damages against the government. The Solicitor
General filed a motion to dismiss invoking State
immunity from suit. The plaintiffs opposed the
motion contending that the government has
waived its immunity from suit based on the acts
and pronouncements of the President, as well as
the recommendation of the Task Force to
indemnify the victims and/or their heirs. Has the
government waived its immunity from suit in the
Mendiola massacre, and, therefore, should
8

indemnify the heirs and victims of the Mendiola

incident? Consequently, is the suit filed against
the Republic by petitioners in said case really a suit
against the State?
Held: Petitioners x x x advance the argument
that the State has impliedly waived its sovereign immunity
from suit.
It is their considered view that by the
recommendation made by the Commission for the
government to indemnify the heirs and victims of the
Mendiola incident and by the public addresses made by
then President Aquino in the aftermath of the killings, the
State has consented to be sued.
Xxx
This is not a suit against the State with its
consent.
Firstly, the recommendation made by the
Commission regarding indemnification of the heirs of the
deceased and the victims of the incident by the
government does not in any way mean that liability
automatically attaches to the State. It is important to
note that A.O. 11 expressly states that the purpose of
creating the Commission was to have a body that will
conduct an investigation of the disorder, deaths and
casualties that took place.
In the exercise of its
functions, A.O. 11 provides guidelines, and what is
relevant to Our discussion reads:
1. Its conclusions regarding the existence of
probable cause for the commission of any offense and
of the persons probably guilty of the same shall be
sufficient compliance with the rules on preliminary
investigation and the charges arising therefrom may
be filed directly with the proper court.
In effect, whatever may be the findings of the
Commission, the same shall only serve as the cause of
action in the event that any party decides to litigate
his/her claim. Therefore, the Commission is merely a
preliminary venue. The Commission is not the end in
itself. Whatever recommendation it makes cannot in any
way bind the State immediately, such recommendation
not having become final and executory. This is precisely
the essence of it being a fact-finding body.
Secondly, whatever acts or utterances that then
President Aquino may have done or said, the same are
not tantamount to the State having waived its immunity
from suit. The Presidents act of joining the marchers,
days after the incident, does not mean that there was an
admission by the State of any liability. In fact to borrow
the words of petitioner x x x, it was an act of solidarity by
the government with the people. Moreover, petitioners
rely on President Aquinos speech promising that the
government would address the grievances of the rallyists.
By this alone, it cannot be inferred that the State has
admitted any liability, much less can it be inferred that it
has consented to the suit.
Although consent to be sued may be given
impliedly, still it cannot be maintained that such consent
was given considering the circumstances obtaining in the
instant case.
Thirdly, the case does not qualify as a suit against
the State.
Xxx

While the Republic in this case is sued by name,

the ultimate liability does not pertain to the government.
Although the military officers and personnel, then party
defendants, were discharging their official functions when
the incident occurred, their functions ceased to be official
the moment they exceeded their authority. Based on the
Commission findings, there was lack of justification by the
government forces in the use of firearms. Moreover, the
members of the police and military crowd dispersal units
committed a prohibited act under B.P. Blg. 880 as there
was unnecessary firing by them in dispersing the
marchers.
As early as 1954, this Court has pronounced that
an officer cannot shelter himself by the plea that he is a
public agent acting under the color of his office when his
acts are wholly without authority. Until recently in 1991
(Chavez v. Sandiganbayan, 193 SCRA 282 [1991]) , this
doctrine still found application, this Court saying that
immunity from suit cannot institutionalize irresponsibility
and non-accountability nor grant a privileged status not
claimed by any other official of the Republic. The military
and police forces were deployed to ensure that the rally
would be peaceful and orderly as well as to guarantee the
safety of the very people that they are duty-bound to
protect. However, the facts as found by the trial court
showed that they fired at the unruly crowd to disperse the
latter.
While it is true that nothing is better settled than
the general rule that a sovereign state and its political
subdivisions cannot be sued in the courts except when it
has given its consent, it cannot be invoked by both the
military officers to release them from any liability, and by
the heirs and victims to demand indemnification from the
government. The principle of state immunity from suit
does not apply, as in this case, when the relief demanded
by the suit requires no affirmative official action on the
part of the State nor the affirmative discharge of any
obligation which belongs to the State in its political
capacity, even though the officers or agents who are

made defendants claim to hold or act only by virtue of a

title of the state and as its agents and servants. This
Court has made it quite clear that even a high position in
the government does not confer a license to persecute or
recklessly injure another.

The inescapable conclusion is that the State

cannot be held civilly liable for the deaths that followed
the incident. Instead, the liability should fall on the
named defendants in the lower court. In line with the
ruling of this Court in Shauf v. Court of Appeals (191
SCRA 713 [1990]), herein public officials, having been
found to have acted beyond the scope of their authority,
may be held liable for damages.
(Republic v.

Sandoval, 220 SCRA 124, March 19, 1993, En Banc

[Campos, Jr.])

May the Government validly invoke the doctrine of

State immunity from suit if its invocation will serve
as an instrument for perpetrating an injustice on a
citizen?
Held: To our mind, it would be the apex of
injustice and highly inequitable for us to defeat
petitioners-contractors right to be duly compensated for
actual work performed and services rendered, where both
the government and the public have, for years, received
and accepted benefits from said housing project and
reaped the fruits of petitioners-contractors honest toil and
labor.
9

Incidentally, respondent likewise argues that the

State may not be sued in the instant case, invoking the
constitutional doctrine of Non-suability of the State,
otherwise known as the Royal Prerogative of Dishonesty.
Respondents argument is misplaced inasmuch as
the principle of State immunity finds no application in the
case before us.
Under these circumstances, respondent may not
validly invoke the Royal Prerogative of Dishonesty and
conveniently hide under the States cloak of invincibility
against suit, considering that this principle yields to
certain settled exceptions. True enough, the rule, in any
case, is not absolute for it does not say that the state may
not be sued under any circumstances.
Thus, in Amigable v. Cuenca, this Court, in effect,
shred the protective shroud which shields the state from
suit, reiterating our decree in the landmark case of
Ministerio v. CFI of Cebu that the doctrine of

governmental immunity from suit cannot serve as an

instrument for perpetrating an injustice on a citizen. It is
just as important, if not more so, that there be fidelity to
legal norms on the part of officialdom if the rule of law
were to be maintained. (Citations omitted)

Although the Amigable and Ministerio cases

generously tackled the issue of the States immunity from
suit vis a vis the payment of just compensation for
expropriated property, this Court nonetheless finds the
doctrine enunciated in the aforementioned cases
applicable to the instant controversy, considering that the
ends of justice would be subverted if we were to uphold,
in this particular instance, the States immunity from suit.
To be sure, this Court as the staunch guardian
of the citizens rights and welfare cannot sanction an
injustice so patent on its face, and allow itself to be an
instrument in the perpetration thereof. Justice and equity
sternly demand that the States cloak of invincibility
against suit be shred in this particular instance, and that
petitioners-contractors be duly compensated on the
basis of quantum meruit for construction done on the
public works housing project. (EPG Construction Co. v.

Vigilar, 354 SCRA 566, Mar.16, 2001, 2nd Div.

[Buena])
Citizenship

1. What citizenship principle do the Philippines adhere

to? Explain, and give illustrative case.
Held: The Philippine law on citizenship adheres
to the principle of jus sanguinis. Thereunder, a child
follows the nationality or citizenship of the parents
regardless of the place of his/her birth, as opposed to the
doctrine of jus soli which determines nationality or
citizenship on the basis of place of birth. (Valles v.

COMELEC, 337 SCRA 543, Aug. 9, 2000, En Banc

[Purisima])
2. Rosalind Ybasco Lopez was born on May 16, 1934 in
Napier Terrace, Broome, Western Australia, to the
spouses, Telesforo Ybasco, a Filipino citizen and
native of Daet, Camarines Norte, and Theresa
Marquez, an Australian. Is she a Filipino citizen and,
therefore, qualified to run for Governor of her
province?

Held: Private respondent Rosalind Ybasco Lopez

was born on May 16, 1934 in Napier Terrace, Broome,
Western Australia, to the spouses, Telesforo Ybasco, a
Filipino citizen and native of Daet, Camarines Norte, and
Theresa Marquez, an Australian. Historically, this was a
year before the 1935 Constitution took into effect and at
that time, what served as the Constitution of the
Philippines were the principal organic acts by which the
United States governed the country. These were the
Philippine Bill of July 1, 1902 and the Philippine Autonomy
Act of August 29, 1916, also known as the Jones Law.
Among others, these laws defined who were
deemed to be citizens of the Philippine Islands. x x x
Under both organic acts, all inhabitants of the
Philippines who were Spanish subjects on April 11, 1899
and resided therein including their children are deemed to
be Philippine citizens.
Private respondents father,
Telesforo Ybasco, was born on January 5, 1879 in Daet,
Camarines Norte, a fact duly evidenced by a certified true
copy of an entry in the Registry of Births. Thus, under the
Philippine Bill of 1902 and the Jones Law, Telesforo
Ybasco was deemed to be a Philippine citizen. By virtue
of the same laws, which were the laws in force at the time
of her birth, Telesforos daughter, herein private
respondent Rosalind Ybasco Lopez, is likewise a citizen of
the Philippines.
The signing into law of the 1935 Philippine
Constitution has established the principle of jus sanguinis
as basis for the acquisition of Philippine citizenship x x x.
So also, the principle of jus sanguinis, which confers
citizenship by virtue of blood relationship, was
subsequently retained under the 1973 and 1987
Constitutions.
Thus, the herein private respondent,
Rosalind Ybasco Lopez, is a Filipino citizen, having been
born to a Filipino father. The fact of her being born in
Australia is not tantamount to her losing her Philippine
citizenship. If Australia follows the principle of jus soli,
then at most, private respondent can also claim Australian
citizenship resulting to her possession of dual citizenship.

(Valles v. COMELEC, 337 SCRA 543, Aug. 9, 2000,

En Banc [Purisima])

3. Does a legitimate child born under the 1935

Constitution of a Filipino mother and an alien father
who elected Philippine citizenship fourteen (14) years
after attaining the age of majority become a Filipino?
Held: Under Article IV, Section 1(3) of the 1935
Constitution, the citizenship of a legitimate child born of a
Filipino mother and an alien father followed the citizenship
of the father, unless, upon reaching the age of majority,
the child elected Philippine citizenship. C.A. No. 625
which was enacted pursuant to Section 1(3), Article IV of
the 1935 Constitution, prescribes the procedure that
should be followed in order to make a valid election of
Philippine citizenship. However, the 1935 Constitution
and C.A. No. 625 did not prescribe a time period within
which the election of Philippine citizenship should be
made. The 1935 Charter only provides that the election
should be made upon reaching the age of majority. The
age of majority then commenced upon reaching twentyone (21) years. In the opinions of the Secretary of Justice
on cases involving the validity of election of Philippine
citizenship, this dilemma was resolved by basing the time
period on the decisions of this Court prior to the effectivity
of the 1935 Constitution. In these decisions, the proper
period for electing Philippine citizenship was, in turn,
based on the pronouncements of the Department of State
10

of the United States Government to the effect that the

election should be made within a reasonable time after
attaining the age of majority. The phrase reasonable
time has been interpreted to mean that the election
should be made within three (3) years from reaching the
age of majority.
The span of fourteen (14) years that lapsed from
the time that person reached the age of majority until he
finally expressed his intention to elect Philippine
citizenship is clearly way beyond the contemplation of the
requirement of electing upon reaching the age of
majority.
Philippine citizenship can never be treated like a
commodity that can be claimed when needed and
suppressed when convenient. One who is privileged to
elect Philippine citizenship has only an inchoate right to
such citizenship. As such, he should avail of the right with
fervor, enthusiasm and promptitude. (Re: Application

for Admission to the Philippine Bar, Vicente D.

Ching, Bar Matter No. 914, Oct. 1, 1999, En Banc
[Kapunan])
4. Is FPJ a natural-born Filipino citizen and, therefore,
qualified to run for President?
Held: The term natural-born citizens, is defined
to include those who are citizens of the Philippines from
birth without having to perform any act to acquire or
perfect their Philippine citizenship. (Section 2, Article IV,
1987 Constitution)
The date, month and year of birth of FPJ
appeared to be 20 August 1939 during the regime of the
1935 Constitution. Through its history, four modes of
acquiring citizenship naturalization, jus soli, res judicata
and jus sanguinis had been in vogue. Only two, i.e., jus
soli and jus sanguinis, could qualify a person to being a
natural-born citizen of the Philippines. Jus soli, per Roa
v. Collector of Customs (23 Phil. 315 [1912]), did not last
long. With the adoption of the 1935 Constitution and the
reversal of Roa in Tan Chong v. Secretary of Labor
(Supra, which held that jus soli was never applied in the
Philippines), jus sanguinis or blood relationship would now
become the primary basis of citizenship by birth.
Documentary evidence adduced by petitioner
would tend to indicate that the earliest established direct
ascendant of FPJ was his paternal grandfather Lorenzo
Pou, married to Marta Reyes, the father of Allan F. Poe.
While the records of birth of Lorenzo Pou had not been
presented in evidence, his death certificate, however,
identified him to be a Filipino, a resident of San Carlos,
Pangasinan, and 84 years old at the time of his death on
11 September 1954. The certificate of birth of the father
of FPJ, Allan F. Poe, showed that he was born on 17 May
1915 to an Espanol father, Lorenzo Pou, and a mestiza
Espanol mother, Marta Reyes. Introduced by petitioner
was an uncertified copy of a supposed certificate of the
alleged marriage of Allan F. Poe and Paulita Gomez on 05
July 1936. The marriage certificate of Allan F. Poe and
Bessie Kelley reflected the date of their marriage to be on
16 September 1940. In the same certificate, Allan F. Poe
was stated to be twenty-five years old, unmarried, and a
Filipino citizen, and Bessie Kelley to be twenty-two years
old, unmarried, and an American citizen. The birth
certificate of FPJ, would disclose that he was born on 20
August 1939 to Allan F. Poe, a Filipino, twenty-four years
old, married to Bessie Kelley, an American citizen, twentyone years old and married.

Considering the reservations made by the parties

on the veracity of some of entries on the birth certificate
of respondent and the marriage certificate of his parents,
the only conclusions that could be drawn with some
degree of certainty from the documents would be that
1. The parents of FPJ were Allan F. Poe and
Bessie Kelley;
2. FPJ was born to them on 20 August 1939;
3. Allan F. Poe and Bessie Kelley were married to
each other on 16 September, 1940;
4. The father of Allan F. Poe was Lorenzo Poe;
and
5. At the time of his death on 11 September
1954, Lorenzo Poe was 84 years old.
Would the above facts be sufficient or insufficient
to establish the fact that FPJ is a natural-born citizen?
The marriage certificate of Allan F. Poe and Bessie Kelley,
the birth certificate of FPJ, and the death certificate of
Lorenzo Pou are documents of public record in the
custody of a public officer. The documents have been
submitted in evidence by both contending parties during
the proceedings before the COMELEC.
Xxx
Being public documents, the death certificate of
Lorenzo Pou, the marriage certificate of Allan F. Poe and
Bessie Kelly, and the birth certificate of FPJ, constitute
prima facie proof of their contents. Section 44, Rule 130,
of the Rules of Court provides:

Entries in official records. Entries in

official records made in the performance of his
duty by a public officer of the Philippines, or by a
person in the performance of a duty specially
enjoined by law, are prima facie evidence of the
facts therein stated.
Xxx
The death certificate of Lorenzo Pou would
indicate that he died on 11 September 1954, at the age of
84 years, in San Carlos, Pangasinan. It could thus be
assumed that Lorenzo Pou was born sometime in the year
1870 when the Philippines was still a colony of Spain.
Petitioner would argue that Lorenzo Pou was not in the
Philippines during the crucial period of from 1898 to 1902
considering that there was no existing record about such
fact in the Records Management and Archives Office.
Petitioner, however, likewise failed to show that Lorenzo
Pou was at any other place during the same period. In
his death certificate, the residence of Lorenzo Pou was
stated to be San Carlos, Pangasinan. In the absence of
any evidence to the contrary, it should be sound to
conclude, or at least to presume, that the place of
residence of a person at the time of his death was also his
residence before death. It would be extremely doubtful if
the Records Management and Archives Office would have
had complete records of all residents of the Philippines
from 1898 to 1902.
Xxx
Petitioner submits, in any case, that in
establishing filiation (relationship or civil status of the child
to the father [or mother]) or paternity (relationship or civil
status of the father to the child) of an illegitimate child,
FPJ evidently being an illegitimate son according the
11

petitioner, the mandatory rules under civil law must be

used.
Xxx
It should be apparent that the growing trend to
liberalize the acknowledgment or recognition of
illegitimate children is an attempt to break away from the
traditional idea of keeping well apart legitimate and nonlegitimate relationships within the family in favor of the
greater interest and welfare of the child. The provisions
are intended merely to govern the private and personal
affairs of the family. There is little, if any, to indicate that
the legitimate or illegitimate civil status of the individual
would also affect his political rights or, in general, his
relationship to the State. While, indeed, provisions on
citizenship could be found in the Civil Code, such
provisions must be taken in the context of private
relations, the domain of civil law x x x.
The relevance of citizenship or nationality to
Civil Law is best exemplified in Article 15 of the Civil Code
x x x that explains the need to incorporate in the code a
reiteration of the Constitutional provisions on citizenship.
Similarly, citizenship is significant in civil relationships
found in different parts of the Civil Code x x x. In
adoption, for instance, an adopted child would be
considered the child of his adoptive parents and accorded
the same rights as their legitimate child but such legal
fiction extended only to define his rights under civil law
(See Ching Leng v. Galang, L-11931, October 1958,
unreported) and not his political status.
Civil law provisions point to an obvious bias
against illegitimacy. This discriminatory attitude may be
traced to the Spanish family and property laws, which,
while defining proprietary and successional rights of
members of the family, provided distinctions in the rights
of legitimate and illegitimate children. X x x
These distinctions between legitimacy and
illegitimacy were codified in the Spanish Civil Code, and
the invidious discrimination survived when the Spanish
Civil Code became the primary source of our own Civil
Code. Such distinction, however, remains and should
remain only in the sphere of civil law and not unduly
impede or impinge on the domain of political law.
The proof of filiation or paternity for purposes of
determining his citizenship status should be deemed
independent from and not inextricably tied up with that
prescribed for civil law purposes. The Civil Code or Family
Code provisions on proof of filiation or paternity, although
good law, do not have preclusive effects on matters alien
to personal and family relations. The ordinary rules on
evidence could well and should govern. For instance, the
matter about pedigree is not necessarily precluded from
being applicable by the Civil Code or Family Code
provisions.
Xxx
Thus, the duly notarized declaration made by
Ruby Kelley Mangahas, sister of Bessie Kelley Poe
submitted as Exhibit 20 before the COMELEC, might be
accepted to prove the acts of Allan F. Poe, recognizing his
own paternal relationship with FPJ, i.e., living together
with Bessie Kelley and his children (including respondent
FPJ) in one house, and as one family x x x.
Xxx

Petitioner would have it that even if Allan F. Poe

were a Filipino citizen, he could not have transmitted his
citizenship to respondent FPJ, the latter being an
illegitimate child. X x x But the documentary evidence
introduced by no less than respondent himself, consisting
of a birth certificate of respondent and a marriage
certificate of his parents showed that FPJ was born on 20
August 1939 to a Filipino father and an American mother
who were married to each other a year later, or on 16
September 1940. Birth to unmarried parents would make
FPJ an illegitimate child. Petitioner contended that as an
illegitimate child, FPJ so followed the citizenship of his
mother, Bessie Kelley, an American citizen, basing his
stand on the ruling of this Court in Morano v. Vivo (20
SCRA 562, Paa v. Chan, 21 SCRA 753), citing Chiongbian
v. de Leon (82 Phil. 771) and Serra v. Republic (91 Phil.

914, unreported).

On the above score, the disquisition made by

amicus curiae Joaquin G. Bernas, SJ, is most convincing;

he states

We must analyze these cases and ask

what the lis mota was in each of them. If the
pronouncement of the Court on jus sanguinis was
on the lis mota, the pronouncement would be a
decision constituting doctrine under the rule of
stare decisis. But if the pronouncement was
irrelevant to the lis mota, the pronouncement
would not be a decision but a mere obiter dictum
which did not establish doctrine. I therefore
invite the Court to look closely into these cases.
First, Morano v. Vivo. The case was not
about an illegitimate child of a Filipino father. It
was about a stepson of a Filipino, a stepson who
was the child of a Chinese mother and a Chinese
father.
The issue was whether the stepson
followed the naturalization of the stepfather.
Nothing about jus sanguinis there. The stepson
did not have the blood of the naturalized father.
Second, Chiongbian v. de Leon. This
case was not about the illegitimate son of a
Filipino father. It was about a legitimate son of a
father who had become Filipino by election to
public office before the 1935 Constitution
pursuant to Article IV, Section 1(2) of the 1935
Constitution. No one was illegitimate here.
Third, Serra v. Republic. The case was
not about the illegitimate son of a Filipino father.
Serra was an illegitimate child of a Chinese father
and a Filipino mother. The issue was whether
one who was already a Filipino because of his
mother who still needed to be naturalized. There
is nothing there about invidious jus sanguinis.
Finally, Paa v. Chan (21 SCRA 753). This
is a more complicated case. The case was about
the citizenship of Quintin Chan who was the son
of Leoncio Chan. Quintin Chan claimed that his
father, Leoncio, was the illegitimate son of a
Chinese father and a Filipino mother. Quintin
therefore argued that he got his citizenship from
Leoncio, his father. But the Supreme Court said
that there was no valid proof that Leoncio was in
fact the son of a Filipina mother. The Court
therefore concluded that Leoncio was not Filipino.
If Leoncio was not Filipino, neither was his son
12

Quintin. Quintin therefore was not only not a

natural-born Filipino but was not even a Filipino.
The Court should have stopped there.
But instead it followed with an obiter dictum. The
Court said obiter that even if Leoncio, Quintins
father, were Filipino, Quintin would not be Filipino
because Quintin was illegitimate. This statement
about Quintin, based on a contrary to fact
assumption, was absolutely unnecessary for the
case. X x x It was obiter dictum, pure and simple,
simply repeating the obiter dictum in Morano v.

Vivo.

Xxx
Aside from the fact that such a
pronouncement would have no textual foundation
in the Constitution, it would also violate the equal
protection clause of the Constitution not once but
twice.
First, it would make an illegitimate
distinction between a legitimate child and an
illegitimate child, and second, it would make an
illegitimate distinction between the illegitimate
child of a Filipino father and the illegitimate child
of a Filipino mother.
The doctrine on constitutionally allowable
distinctions was established long ago by People v.
Cayat (68 Phil. 12). I would grant that the
distinction between legitimate children and
illegitimate children rests on real differences. X x
x But real differences alone do not justify
invidious distinction. Real differences may justify
distinction for one purpose but not for another
purpose.
x x x What is the relevance of legitimacy
or illegitimacy to elective public service? What
possible state interest can there be for
disqualifying an illegitimate child from becoming a
public officer. It was not the fault of the child
that his parents had illicit liaison. Why deprive
the child of the fullness of political rights for no
fault of his own? To disqualify an illegitimate
child from holding an important public office is to
punish him for the indiscretion of his parents.
There is neither justice nor rationality in that.
And if there is neither justice nor rationality in the
distinction, then the distinction transgresses the
equal protection clause and must be reprobated.
The other amici curiae, Mr. Justice Mendoza (a
former member of this Court), Professor Ruben Balane
and Dean Merlin Magallona, at bottom, have expressed
similar views. The thesis of petitioner, unfortunately
hinging solely on pure obiter dicta, should indeed fail.
Where jurisprudence regarded an illegitimate child
as taking after the citizenship of its mother, it did so for
the benefit of the child. It was to ensure a Filipino
nationality for the illegitimate child of an alien father in
line with the assumption that the mother had custody,
would exercise parental authority and had the duty to
support her illegitimate child. It was to help the child, not
to prejudice or discriminate against him.
The fact of the matter perhaps the most
significant consideration is that the 1935 Constitution,
the fundamental law prevailing on the day, month and
year of birth of respondent FPJ, can never be more

explicit than it is.

Providing neither conditions nor
distinctions, the Constitution states that among the
citizens of the Philippines are those whose fathers are
citizens of the Philippines. There utterly is no cogent
justification to prescribe conditions or distinctions where
there clearly are none provided.
(Maria Jeanette

Tecson, et al. v. COMELEC, G.R. No. 161434, March

3, 2004, En Banc [Vitug])
5. How may Philippine citizenship be renounced? Is the
application for an alien certificate of registration, and
the possession of foreign passport, tantamount to acts
of renunciation of Philippine citizenship?
Held: In order that citizenship may be lost by
renunciation, such renunciation must be express.
Petitioners contention that the application of private
respondent for an alien certificate of registration, and her
Australian passport, is bereft of merit. This issue was put
to rest in the case of Aznar v. COMELEC (185 SCRA 703
[1990]) and in the more recent case of Mercado v.

Manzano and COMELEC (G.R. No. 135083, 307 SCRA 630,

May 26, 1999).

In the case of Aznar, the Court ruled that the

mere fact that he is an American did not mean that he is
no longer a Filipino, and that an application for an alien
certificate of registration was not tantamount to
renunciation of his Philippine citizenship.
And, in Mercado v. Manzano and COMELEC, it was
held that the fact that respondent Manzano was
registered as an American citizen in the Bureau of
Immigration and Deportation and was holding an
American passport on April 22, 1997, only a year before
he filed a certificate of candidacy for vice-mayor of Makati,
were just assertions of his American nationality before the
termination of his American citizenship.
Thus, the mere fact that private respondent
Rosalind Ybasco Lopez was a holder of an Australian
passport and had an alien certificate of registration are
not acts constituting an effective renunciation of
citizenship and do not militate against her claim of Filipino
citizenship. For renunciation to effectively result in the
loss of citizenship, the same must be express. As held by
this Court in the aforecited case of Aznar, an application
for an alien certificate of registration does not amount to
an express renunciation or repudiation of ones
citizenship.
The application of the herein private
respondent for an alien certificate of registration, and her
holding of an Australian passport, as in the case of
Mercado v. Manzano, were mere acts of assertion of her
Australian citizenship before she effectively renounced the
same. Thus, at the most, private respondent had dual
citizenship she was an Australian and a Filipino, as well.
Moreover, under Commonwealth Act 63, the fact
that a child of Filipino parent/s was born in another
country has not been included as a ground for losing ones
Philippine citizenship. Since private respondent did not
lose or renounce her Philippine citizenship, petitioners
claim that respondent must go through the process of
repatriation does not hold water. (Valles v. COMELEC,

337 SCRA 543, Aug. 9, 2000, En Banc [Purisima])

6. What are the ways of acquiring citizenship? Discuss.

Held:
There are two ways of acquiring
citizenship: (1) by birth, and (2) by naturalization. These
ways of acquiring citizenship correspond to the two kinds
13

of citizens: the natural-born citizen, and the naturalized

citizen. A person who at the time of his birth is a citizen
of a particular country, is a natural-born citizen thereof.
As defined in the x x x Constitution, natural-born
citizens are those citizens of the Philippines from birth
without having to perform any act to acquire or perfect
his Philippine citizenship.
On the other hand, naturalized citizens are those
who have become Filipino citizens through naturalization,
generally under Commonwealth Act No. 473, otherwise
known as the Revised Naturalization Law, which repealed
the former Naturalization Law (Act No. 2927), and by
Republic Act No. 530. (Antonio Bengson III v. HRET,

G.R. No. 142840, May 7, 2001, En Banc [Kapunan])

7. To be naturalized, what must an applicant prove?

When and what are the conditions before the decision
granting Philippine citizenship becomes executory?
Held: To be naturalized, an applicant has to
prove that he possesses all the qualifications and none of
the disqualifications provided by law to become a Filipino
citizen.
The decision granting Philippine citizenship
becomes executory only after two (2) years from its
promulgation when the court is satisfied that during the
intervening period, the applicant has (1) not left the
Philippines; (2) has dedicated himself to a lawful calling or
profession; (3) has not been convicted of any offense or
violation of government promulgated rules; or (4)
committed any act prejudicial to the interest of the nation
or contrary to any government announced policies

(Section 1, R.A. 530). (Antonio Bengson III v. HRET,

G.R. No. 142840, May 7, 2001, En Banc [Kapunan])
8. What qualifications must be possessed by an applicant
for naturalization?
Held: Section 2, Act 473 provides the following
qualifications:

(a) He must be not less than 21 years of age on

the day of the hearing of the petition;
(b) He must have resided in the Philippines for a
continuous period of not less than ten years;
(c) He must be of good moral character and
believes in the principles underlying the
Philippine Constitution, and must have
conducted himself in a proper and
irreproachable manner during the entire
period of his residence in the Philippines in
his relation with the constituted government
as well as with the community in which he is
living;
(d) He must own real estate in the Philippines
worth not less than five thousand pesos,
Philippine currency, or must have some
known lucrative trade, profession, or lawful
occupation;
(e) He must be able to speak and write English
or Spanish and any of the principal
languages; and
(f) He must have enrolled his minor children of
school age, in any of the public schools or
private schools recognized by the Bureau of
Private Schools of the Philippines where
Philippine history, government and civic are
taught or prescribed as part of the school
curriculum, during the entire period of the
residence in the Philippines required of him

prior to the hearing of his petition for

naturalization as Philippine citizen.

(Antonio Bengson III v. HRET, G.R. No. 142840,

May 7, 2001, En Banc [Kapunan])
9. What are the disqualifications under Section 4, Act
473, in an application for naturalization?

Held: Section 4, Act 473, provides the following

disqualifications:
(a) He must not be opposed to organized
government or affiliated with any association
or group of persons who uphold and teach
doctrines
opposing
all
organized
governments;
(b) He must not be defending or teaching the
necessity or propriety of violence, personal
assault, or assassination for the success and
predominance of their ideas;
(c) He must not be a polygamist or believer in
the practice of polygamy;
(d) He must not have been convicted of any
crime involving moral turpitude;
(e) He must not be suffering from mental
alienation or incurable contagious diseases;
(f) He must have, during the period of his
residence in the Philippines (or not less than
six months before filing his application),
mingled socially with the Filipinos, or who
have not evinced a sincere desire to learn
and embrace the customs, traditions and
ideals of the Filipinos;
(g) He must not be a citizen or subject of a
nation with whom the Philippines is at war,
during the period of such war;
(h) He must not be a citizen or subject of a
foreign country whose laws do not grant
Filipinos the right to become naturalized
citizens or subjects thereof.

(Antonio Bengson III v. HRET, G.R. No. 142840,

May 7, 2001, En Banc [Kapunan])
10. Distinguish naturalization from repatriation,
discuss the applicable laws in each.

and

Held:
Naturalization is a mode for both
acquisition and reacquisition of Philippine citizenship. As a
mode of initially acquiring Philippine citizenship,
naturalization is governed by Commonwealth Act No. 473,
as amended. On the other hand, naturalization as a mode
for reacquiring Philippine citizenship is governed by
Commonwealth Act No. 63 (An Act Providing for the Ways

in Which Philippine Citizenship May Be Lost or Reacquired

[1936]). Under this law, a former Filipino citizen who
wishes to reacquire Philippine citizenship must possess
certain qualifications and none of the disqualifications
mentioned in Section 4 of C.A. 473.

Repatriation, on the other hand, may be had

under various statutes by those who lost their citizenship
due to: (1) desertion of the armed forces (Section 4, C.A.
No. 63); (2) service in the armed forces of the allied
forces in World War II (Section 1, Republic Act No. 965
[1953]); (3) service in the Armed Forces of the United
States at any other time (Sec. 1, Republic Act No. 2630
[1960]); (4) marriage of a Filipino woman to an alien
(Sec. 1, Republic Act No. 8171 [1995]); and (5) political
and economic necessity (Ibid).

14

As distinguished from the lengthy process of

naturalization, repatriation simply consists of the taking of
an oath of allegiance to the Republic of the Philippines
and registering said oath in the Local Civil Registry of the
place where the person concerned resides or last resided.
Xxx
Moreover, repatriation results in the recovery of
This means that a naturalized
Filipino who lost his citizenship will be restored to his prior
status as a naturalized Filipino citizen. On the other hand,
if he was originally a natural-born citizen before he lost his
Philippine citizenship, he will be restored to his former
status as a natural-born Filipino. (Antonio Bengson III

the original nationality.

v. HRET, G.R. No. 142840, May 7, 2001, En Banc

[Kapunan])
11. How may Filipino citizens who lost their citizenship
reacquire the same?

Answer: Filipino citizens who have lost their

citizenship may x x x reacquire the same in the manner
provided by law. Commonwealth Act No. 63 enumerates
the three modes by which Philippine citizenship may be
reacquired by a former citizen: (1) by naturalization, (2)
by repatriation, and (3) by direct act of Congress .

(Frivaldo v. COMELEC, 257 SCRA 727, June 28,

1996, En Banc [Panganiban]; Antonio Bengson III
v. HRET, G.R. No. 142840, May 7, 2001, En Banc
[Kapunan])

12. Who may validly avail of repatriation under R.A. No.

8171?
Held: R.A. No. 8171, which has lapsed into law
on October 23, 1995, is an act providing for the
repatriation (a) of Filipino women who have lost their
Philippine citizenship by marriage to aliens and (b) of
natural-born Filipinos who have lost their Philippine
citizenship on account of political or economic necessity.

(Gerardo Angat v. Republic, G.R. No. 132244, Sept.

14, 1999 [Vitug])
13. Before what agency should application for repatriation
under R.A 8171 be filed?

Held: Under Section 1 of P.D. No. 725, dated

June 5, 1975, amending C.A. No. 63, an application for
repatriation could be filed with the Special Committee on
Naturalization chaired by the Solicitor General with the
Undersecretary of Foreign Affairs and the Director of the
National Intelligence Coordinating Agency as the other
members. Although the agency was deactivated by virtue
of President Corazon C. Aquinos Memorandum of March
27, 1987, it was not, however, abrogated.
The
Committee was reactivated on June 8, 1995. Hence, the
application should be filed with said Agency, not with the
Regional Trial Court. (Gerardo Angat v. Republic,

G.R. No. 132244, Sept. 14, 1999 [Vitug])

14. May a natural-born Filipino who became an American

citizen still be considered a natural-born Filipino upon
his reacquisition of Philippine citizenship and,
therefore, qualified to run for Congressman?
Held: Repatriation results in the recovery of the
original nationality. This means that a naturalized Filipino
who lost his citizenship will be restored to his prior status
as a naturalized Filipino citizen. On the other hand, if he
was originally a natural-born citizen before he lost his

Philippine citizenship, he will be restored to his former

status as a natural-born Filipino.
In respondent Cruzs case, he lost his Filipino
citizenship when he rendered service in the Armed Forces
of the United States.
However, he subsequently
reacquired Philippine citizenship under R.A. No. 2630 x x
x.
Having thus taken the required oath of allegiance
to the Republic and having registered the same in the Civil
Registry of Mangatarem, Pangasinan in accordance with
the aforecited provision, respondent Cruz is deemed to
have recovered his original status as a natural-born
citizen, a status which he acquired at birth as the son of a
Filipino father.
It bears stressing that the act of
repatriation allows him to recover, or return to, his

original status before he lost his Philippine citizenship.

Petitioners contention that respondent Cruz is no

longer a natural-born citizen since he had to perform an
act to regain his citizenship is untenable. [T]he term
natural-born citizen was first defined in Article III,
Section 4 of the 1973 Constitution as follows:
Section 4. A natural-born citizen is one
who is a citizen of the Philippines from birth
without having to perform any act to acquire or
perfect his Philippine citizenship.
Two requisites must concur for a person to be
considered as such: (1) a person must be a Filipino citizen
from birth and (2) he does not have to perform any act to
obtain or perfect his Philippine citizenship.
Under the 1973 Constitution definition, there were
two categories of Filipino citizens which were not
considered natural-born: (1) those who were naturalized
and (2) those born before January 17, 1973 (the date of
effectivity of the 1973 Constitution), of Filipino mothers
who, upon reaching the age of majority, elected Philippine
citizenship.
Those naturalized citizens were not
considered natural-born obviously because they were not
Filipinos at birth and had to perform an act to acquire
Philippine citizenship. Those born of Filipino mothers
before the effectivity of the 1973 Constitution were
likewise not considered natural-born because they also
had to perform an act to perfect their Philippine
citizenship.
The present Constitution, however, now considers
those born of Filipino mothers before the effectivity of the
1973 Constitution and who elected Philippine citizenship
upon reaching the majority age as natural-born. After
defining who are natural-born citizens, Section 2 of Article
IV adds a sentence: Those who elect Philippine
citizenship in accordance with paragraph (3), Section 1
hereof shall be deemed natural-born citizens.
Consequently, only naturalized Filipinos are considered not
natural-born citizens. It is apparent from the enumeration
of who are citizens under the present Constitution that
there are only two classes of citizens: (1) those who are
natural-born and (2) those who are naturalized in
accordance with law. A citizen who is not a naturalized
Filipino, i.e., did not have to undergo the process of
naturalization to obtain Philippine citizenship, necessarily
is a natural-born Filipino. Noteworthy is the absence in
the said enumeration of a separate category for persons
who, after losing Philippine citizenship, subsequently
reacquire it. The reason therefore is clear: as to such
persons, they would either be natural-born or naturalized
15

depending on the reasons for the loss of their citizenship

and the mode prescribed by the applicable law for the
reacquisition thereof.
As respondent Cruz was not
required by law to go through naturalization proceedings
in order to reacquire his citizenship, he is perforce a
natural-born Filipino. As such, he possessed all the
necessary qualifications to be elected as member of the
House of Representatives. (Antonio Bengson III v.

HRET, G.R. No. 142840, May 7, 2001, En Banc

[Kapunan])
15. Distinguish Dual Citizenship from Dual Allegiance.

Held: Dual citizenship arises when, as a result of

the concurrent application of the different laws of two or
more states, a person is simultaneously considered a
national by the said states. For instance, such a situation
may arise when a person whose parents are citizens of a
state which adheres to the principle of jus sanguinis is
born in a state which follows the doctrine of jus soli. Such
a person, ipso facto and without any voluntary act on his
part, is concurrently considered a citizen of both states.
Dual allegiance, on the other hand, refers to a
situation in which a person simultaneously owes, by some
positive act, loyalty to two or more states. While dual
citizenship is involuntary, dual allegiance is the result of
an individuals volition. (Mercado v. Manzano, 307

SCRA 630, May 26, 1999, En Banc [Mendoza])

16. What is the main concern of Section 5, Article

1987 Constitution, on citizenship? Consequently,
persons with mere dual citizenship disqualified to
for elective local positions under Section 40(d) of
Local Government Code?

IV,
are
run
the

Held: In including Section 5 in Article IV on

citizenship, the concern of the Constitutional Commission
was not with dual citizens per se but with naturalized
citizens who maintain their allegiance to their countries of
origin even after their naturalization. Hence, the phrase
dual citizenship in R.A. No. 7160, Section 40(d) (Local
Government Code) must be understood as referring to
dual allegiance. Consequently, persons with mere dual
citizenship do not fall under this disqualification. Unlike
those with dual allegiance, who must x x x be subject to
strict process with respect to the termination of their
status, for candidates with dual citizenship, it should
suffice if, upon the filing of their certificate of candidacy,
they elect Philippine citizenship to terminate their status
as persons with dual citizenship considering that their
condition is the unavoidable consequence of conflicting
laws of different states.
By electing Philippine citizenship, such candidates
at the same time forswear allegiance to the other country
of which they are also citizens and thereby terminate their
status as dual citizens. It may be that, from the point of
view of the foreign state and of its laws, such an
individual has not effectively renounced his foreign
citizenship.
That is of no moment.
(Mercado v.

Manzano, G.R. No. 135083, 307 SCRA 630, May 26,

1999 [Mendoza])
17. Cite instances when a citizen of the Philippines may
possess dual citizenship considering the citizenship
clause (Article IV) of the Constitution.
Held:

1) Those born of Filipino fathers and/or mothers

in foreign countries which follow the principle
of jus soli;
2) Those born in the Philippines of Filipino
mothers and alien fathers if by the laws of
their fathers country such children are
citizens of that country;
3) Those who marry aliens if by the laws of the
latters country the former are considered
citizens, unless by their act or omission they
are deemed to have renounced Philippine
citizenship.

(Mercado v. Manzano, G.R. No. 135083, 307 SCRA

630, May 26, 1999 [Mendoza])

18. The general rule is that res judicata does not apply
in cases hinging on the issue of citizenship? What is
the exception to this rule? Discuss.
Held: Petitioner maintains further that when
citizenship is raised as an issue in judicial or administrative
proceedings, the resolution or decision thereon is
generally not considered res judicata in any subsequent
proceeding challenging the same; citing the case of Moy

Ya Lim Yao v. Commissioner of Immigration (41 SCRA 292

[1971]). He insists that the same issue of citizenship may
be threshed out anew.

Petitioner is correct insofar as the general rule is

concerned, i.e., the principle of res judicata generally does
not apply in cases hinging on the issue of citizenship.
However, in the case of Burca v. Republic (51 SCRA 248
[1973]), an exception to this general rule was recognized.
The Court ruled in that case that in order that the doctrine
of res judicata may be applied in cases of citizenship, the
following must be present:
1) a persons citizenship be raised as a material
issue in a controversy where said person is a
party;
2) the Solicitor General or his authorized
representative took active part in the
resolution thereof, and
3) the finding on citizenship is affirmed by this
Court.
Although the general rule was set forth in the
case of Moy Ya Lim Yao, the case did not foreclose the
weight of prior rulings on citizenship. It elucidated that
reliance may somehow be placed on these antecedent
official findings, though not really binding, to make the
effort easier or simpler. (Valles v. COMELEC, 337

SCRA 543, Aug. 9, 2000, En Banc [Purisima])

Civilian Supremacy Clause

19. The President issued Letter of Instruction (LOI)

ordering the deployment of members of the Philippine
Marines in the metropolis to conduct joint visibility
patrols with members of the Philippine National Police
in various shopping malls. Will this not violate the
civilian supremacy clause under Section 3, Article II of
the Constitution? Will this not amount to an "insidious
incursion" of the military in the task of law
enforcement in violation of Section 5(4), Article XVI of
the Constitution?
Held: The deployment of the Marines does not
constitute a breach of the civilian supremacy clause. The
calling of the marines in this case constitutes permissible
16

use of military assets for civilian law enforcement. x x x.

The limited participation of the Marines is evident in the
provisions of the LOI itself, which sufficiently provides the
metes and bounds of the Marines' authority.
It is
noteworthy that the local police forces are the ones in
charge of the visibility patrols at all times, the real
authority belonging to the PNP. In fact, the Metro Manila
Police Chief is the overall leader of the PNP-Philippine
Marines joint visibility patrols. Under the LOI, the police
forces are tasked to brief or orient the soldiers on police
patrol procedures. It is their responsibility to direct and
manage the deployment of the Marines. It is, likewise,
their duty to provide the necessary equipment to the
Marines and render logistical support to these soldiers. In
view of the foregoing, it cannot be properly argued that
military authority is supreme over civilian authority.
Moreover, the deployment of the Marines to assist
the PNP does not unmake the civilian character of the
police force. Neither does it amount to an insidious
incursion of the military in the task of law enforcement in
violation of Section 5[4], Article XVI of the Constitution.
In this regard, it is not correct to say that General
Angelo Reyes, Chief of Staff of the AFP, by his alleged
involvement in civilian law enforcement, has been virtually
appointed to a civilian post in derogation of the aforecited
provision. The real authority in these operations, as
stated in the LOI, is lodged with the head of a civilian
institution, the PNP, and not with the military. Such being
the case, it does not matter whether the AFP Chief
actually participates in the Task Force Tulungan since he
does not exercise any authority or control over the same.
Since none of the Marines was incorporated or enlisted as
members of the PNP, there can be no appointment to a
civilian position to speak of. Hence, the deployment of
the Marines in the joint visibility patrols does not destroy
the civilian character of the PNP.
Considering the above circumstances, the Marines
render nothing more than assistance required in
conducting the patrols.
As such, there can be no
insidious incursion of the military in civilian affairs nor
can there be a violation of the civilian supremacy clause in
the Constitution.
It is worth mentioning that military assistance to
civilian authorities in various forms persists in Philippine
jurisdiction. The Philippine experience reveals that it is
not averse to requesting the assistance of the military in
the implementation and execution of certain traditionally
civil functions. x x x [S]ome of the multifarious activities
wherein military aid has been rendered, exemplifying the
activities that bring both the civilian and the military
together in a relationship of cooperation, are:
1. Elections;
2. Administration of the Philippine National
Red Cross;
3. Relief and rescue operations during
calamities and disasters;
4. Amateur
sports
promotion
and
development;
5. Development of the culture and the arts;
6. Conservation of natural resources;
7. Implementation of the agrarian reform
program;
8. Enforcement of customs laws;
9. Composite
civilian-military
law
enforcement activities;
10. Conduct of licensure examinations;

11. Conduct
of
nationwide
tests
for
elementary and high school students;
12. Anti-drug enforcement activities;
13. Sanitary inspections;
14. Conduct of census work;
15. Administration of the Civil Aeronautics
Board;
16. Assistance in installation of weather
forecasting devices;
17. Peace and order policy formulation in
local government units.
This unquestionably constitutes a gloss on
executive power resulting from a systematic, unbroken,
executive practice, long pursued to the knowledge of
Congress and, yet, never before questioned. What we
have here is mutual support and cooperation between the
military and civilian authorities, not derogation of civilian
supremacy. (IBP v. Hon. Ronaldo B. Zamora, G.R.

No. 141284, Aug. 15, 2000, En Banc [Kapunan])

The Right to a Balanced and Healthful Ecology

20. Is the right to a balanced and healthful ecology any

less important than any of the civil and political rights
enumerated in the Bill of Rights? Explain.
Held: While the right to a balanced and healthful
ecology is to be found under the Declaration of Principles
and State Policies and not under the Bill of Rights, it does
not follow that it is less important than any of the civil and
political rights enumerated in the latter. Such a right
belongs to a different category of rights altogether for it
concerns nothing less than self-preservation and selfperpetuation, the advancement of which may even be
said to predate all governments and constitutions. As a
matter of fact, these basic rights need not even be written
in the Constitution for they are assumed to exist from the
inception of humankind.
If they are now explicitly
mentioned in the fundamental charter, it is because of the
well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are
mandated as state policies by the Constitution itself x x x
the day would not be too far when all else would be lost
not only for the present generation, but also for those to
come generations which stand to inherit nothing but
parched earth incapable of sustaining life. (Oposa v.

Factoran, Jr., 224 SCRA 792 [1993][Davide])

21. The Province of Palawan and the City of Puerto

Princesa enacted ordinances prohibiting the catching
and/or exportation of live tropical fishes, and imposing
penalties for violations thereof, in order to stop the
illegal practice of cyanide fishing which destroys the
corals and other marine resources. Several fishermen
apprehended for violating the ordinances in question
challenged their constitutionality contending that the
ordinances violated their preferential right as
subsistence and marginal fishermen to the use of our
communal marine resources guaranteed by the
Constitution, under Section 7, Article XIII. Will you
sustain the challenge?
Held: The preferential right of subsistence or
marginal fishermen to the use of marine resources is not
absolute. In accordance with the Regalian Doctrine,
marine resources belong to the State, and, pursuant to
the first paragraph of Section 2, Article XII of the
Constitution, their exploration, development and
utilization x x x shall be under the full control and
supervision of the State. Moreover, their mandated
17

protection, development and conservation x x x imply

certain restrictions on whatever right of enjoyment there
may be in favor of anyone. What must be borne in mind
is the State policy enshrined in the Constitution regarding
the duty of the State to protect and advance the right of
the people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature (Section 16,
Article II).
The ordinances in question are meant
precisely to protect and conserve our marine resources to
the end that their enjoyment may be guaranteed not only
for the present generation, but also for the generations to
come. The right to a balanced and healthful ecology
carries with it a correlative duty to refrain from impairing
the environment. (Tano v. Gov. Salvador P. Socrates,

G.R. No. 110249, Aug. 21, 1997)

Academic Freedom

22. How should the States power to regulate educational

institutions be exercised?
Held:
Section 4[1], Article XIV of the
Constitution recognizes the States power to regulate
educational institutions:
The State recognizes
roles of public and private
educational system and shall
supervision and regulation
institutions.

the complementary
institutions in the
exercise reasonable
of all educational

As may be gleaned from the above provision,

such power to regulate is subject to the requirement of
reasonableness. Moreover, the Constitution allows merely
the regulation and supervision of educational institutions,
not the deprivation of their rights. (Miriam College

Foundation, Inc. v. Court of Appeals, 348 SCRA

265, 288, Dec. 15, 2000, 1st Div. [Kapunan])
23. Define and discuss the academic
institutions of higher learning.

freedom

of

Held:
Academic freedom of educational
institutions has been defined as the right of the school or
college to decide for itself, its aims and objectives, and
how best to attain them - free from outside coercion or
interference save possibly when the overriding public
welfare calls for some restraint. It has a wide sphere of
autonomy certainly extending to the choice of students.
Said constitutional provision is not to be construed in a
niggardly manner or in a grudging fashion. That would be
to frustrate its purpose and nullify its intent.
While it is true that an institution of learning has a
contractual obligation to afford its students a fair
opportunity to complete the course they seek to pursue,
since a contract creates reciprocal rights and obligations,
the obligation of the school to educate a student would
imply a corresponding obligation on the part of the
student to study and obey the rules and regulations of the
school. When a student commits a serious breach of
discipline or failed to maintain the required academic
standard, he forfeits his contractual right.
In this
connection, this Court recognizes the expertise of
educational institutions in the various fields of learning.
Thus, they are afforded ample discretion to formulate
reasonable rules and regulations in the admission of
students, including setting of academic standards. Within
the parameters thereof, they are competent to determine
who are entitled to admission and re-admission.

(University of San Agustin, Inc. v. Court of Appeals,

230 SCRA 761, 774-775, March 7, 1994 [Nocon])
24. What are the essential freedoms subsumed in the
term academic freedom?
Held: 1. In Ateneo de Manila University v.
Capulong (G.R. No. 99327, 27 May 1993), this Court cited

with approval the formulation made by Justice Felix

Frankfurter of the essential freedoms subsumed in the
term academic freedom encompassing not only the
freedom to determine x x x on academic grounds who
may teach, what may be taught (and) how it shall be
taught, but likewise who may be admitted to study.
We have thus sanctioned its invocation by a school in
rejecting students who are academically delinquent, or a
laywoman seeking admission to a seminary, or students
violating School Rules on Discipline. (Isabelo, Jr. v.

Perpetual Help College of Rizal, Inc., 227 SCRA

595-597, Nov. 8, 1993, En Banc [Vitug])

2. The essential freedoms subsumed in the term

academic freedom encompass the freedom to determine
for itself on academic grounds:
(1)
(2)
(3)
(4)

Who may teach,

What may be taught,
How it shall be taught, and
Who may be admitted to study.

The right of the school to discipline its students is

at once apparent in the third freedom, i.e., how it shall
be taught. A school certainly cannot function in an
atmosphere of anarchy.
Thus, there can be no doubt that the
establishment of an educational institution
requires rules and regulations necessary for the
maintenance of an orderly educational program
and the creation of an educational environment
conducive to learning. Such rules and regulations
are equally necessary for the protection of the
students, faculty, and property (Angeles v. Sison,

112 SCRA 26, 37 [1982]).

Moreover, the school has an interest in teaching

the student discipline, a necessary, if not indispensable,
value in any field of learning. By instilling discipline, the
school teaches discipline.
Accordingly, the right to
discipline the student likewise finds basis in the freedom
what to teach.
Incidentally, the school not only has the right but
the duty to develop discipline in its students.
The
Constitution no less imposes such duty.
[All educational institutions] shall inculcate
patriotism and nationalism, foster love of
humanity, respect for human rights, appreciation
of the role of national heroes in the historical
development of the country, teach the rights and
duties of citizenship, strengthen ethical and
spiritual values, develop moral character and
personal discipline, encourage critical and creative
thinking, broaden scientific and technological
knowledge, and promote vocational efficiency

(Section 3[2], Article XIV, Constitution).

In Angeles v. Sison, we also said that discipline was a

means for the school to carry out its responsibility to help
18

its students grow and develop into mature, responsible,

effective and worthy citizens of the community.
Finally, nowhere in the above formulation is the
right to discipline more evident than in who may be
admitted to study. If a school has the freedom to
determine whom to admit, logic dictates that it also has
the right to determine whom to exclude or expel, as well
as upon whom to impose lesser sanctions such as
suspension and the withholding of graduation privileges.
Thus, in Ateneo de Manila v. Capulong (222 SCRA
643 [1993]), the Court upheld the expulsion of students
found guilty of hazing by petitioner therein, holding that:
No one can be so myopic as to doubt that
the immediate reinstatement of respondent
students who have been investigated and found
guilty by the Disciplinary Board to have violated
petitioner universitys disciplinary rules and
standards will certainly undermine the authority of
the administration of the school. This we would
be most loathe to do.
More importantly, it will seriously impair
petitioner universitys academic freedom which
has been enshrined in the 1935, 1973 and the
present 1987 Constitution.

(Miriam College Foundation, Inc. v. Court of

Appeals, 348 SCRA 265, Dec. 15, 2000, 1st Div.
[Kapunan])
25. May a university validly revoke a degree or honor it
has conferred to a student after the graduation of the
latter after finding that such degree or honor was
obtained through fraud?
Held: In Garcia v. Faculty Admission Committee,
Loyola School of Theology (68 SCRA 277 [1975]), the SC
pointed out that academic freedom of institutions of
higher learning is a freedom granted to institutions of
higher learning which is thus given a wide sphere of
authority certainly extending to the choice of students. If
such institution of higher learning can decide who can and
who cannot study in it, it certainly can also determine on
whom it can confer the honor and distinction of being its
graduates.
Where it is shown that the conferment of an
honor or distinction was obtained through fraud, a
university has the right to revoke or withdraw the honor
or distinction it has thus conferred. This freedom of a
university does not terminate upon the graduation of a
student, for it is precisely the graduation of such a
student that is in question. (UP Board of Regents v.

Hon. Court of Appeals and Arokiaswamy William

Margaret Celine, G.R. No. 134625, Aug. 31, 1999,
2nd Div. [Mendoza])
Economic Policy

26. Does the Constitutional policy of a self-reliant and

independent national economy rule out foreign
competition?
Held: The constitutional policy of a self-reliant
and independent national economy does not necessarily
rule out the entry of foreign investments, goods and
services. It contemplates neither economic seclusion
nor mendicancy in the international community.

Aside from envisioning a trade policy based on

equality and reciprocity, the fundamental law
encourages industries that are competitive in both
domestic and foreign markets, thereby demonstrating a
clear policy against a sheltered domestic trade
environment, but one in favor of the gradual development
of robust industries that can compete with the best in the
foreign markets. (Tanada v. Angara, 272 SCRA 18

[1997])

27. Is PHILSECO (Philippine Shipyard and Engineering

Corporation), as a shipyard, a public utility and,
hence, could be operated only by a corporation at
least 60% of whose capital is owned by Filipino
citizens in accordance with Article XII, Section 10 of
the Constitution?
Held: Petitioner asserts that a shipyard is a
public utility pursuant to Section 13 (b) of Commonwealth
Act No. 146. Respondents, on the other hand, contend
that shipyards are no longer public utilities by express
provision of Presidential Decree No. 666, which provided
incentives to the shipbuilding and ship repair industry.
Indeed, P.D. No. 666 dated March 5, 1975
explicitly stated that a shipyard was not a public utility.
xxx
However, Section 1 of P.D. No. 666 was expressly
repealed by Section 20 of Batas Pambansa Blg. 391, the
Investment Incentive Policy Act of 1983. Subsequently,
Executive Order No. 226, the Omnibus Investments Code
of 1987, was issued and Section 85 thereof expressly
repealed B.P. Blg. 391.
The express repeal of B.P. Blg. 391 by E.O. No.
226 did not revive Section 1 of P.D. No. 666, declassifying
the shipbuilding and ship repair industry as a public utility,
as said executive order did not provide otherwise. When
a law which expressly repeals a prior law is itself repealed,
the law first repealed shall not be thereby revived unless
expressly so provided (Administrative Code of 1987, Book
I, Chapter 5, Section 21). Consequently, when the APT
[Asset Privatization Trust] drafted the ASBR [Asset
Specific Bidding Rules] sometime in 1993, P.D. No. 666 no
longer existed in our statute books. While it is true that
the repeal of a statute does not operate to impair rights
that have become vested or accrued while the statute was
in force, there are no vested rights of the parties that
should be protected in the case at bar. The reason is
simple: said decree was already inexistent when the ASBR
was issued.
A shipyard such as PHILSECO being a public utility
as provided by law, the following provision of the Article
XII of the Constitution applies:
Sec. 11. No franchise, certificate, or any
other form of authorization for the operation of a
public utility shall be granted except to citizens of
the Philippines or to corporations or associations
organized under the laws of the Philippines at

least sixty per centum of whose capital is owned

by such citizens, nor shall such franchise,
certificate, or authorization be exclusive in
character or for a longer period than fifty years.
Neither shall any such franchise or right be
granted except under the condition that it shall be
subject to amendment, alteration, or repeal by
the Congress when the common good so requires.
The State shall encourage equity participation in

19

public utilities by the general public.

The
participation of foreign investors in the governing
body of any public utility enterprise shall be
limited to their proportionate share in its capital,
and all the executive and managing officers of
such corporation or association shall be citizens of
the Philippines.

Section 1. The Congress shall give the

highest priority to the enactment of measures that
protect and enhance the right of all the people to
human dignity, reduce social, economic and
political inequalities, and remove cultural
inequalities by equitably diffusing wealth and
political power for the common good.

The progenitor of this constitutional provision,

Article XIV, Section 5 of the 1973 Constitution, required
the same proportion of 60%-40% capitalization. The JVA
[Joint Venture Agreement] between NIDC [National
Investment and Development Corporation] and Kawasaki
[Kawasaki Heavy Industries, Ltd. of Kobe, Japan] entered
into on January 27, 1977 manifests the intention of the
parties to abide by the constitutional mandate on
capitalization of public utilities. x x x

To this end, the State shall regulate the

acquisition, ownership, use and disposition of
property and its increments. (Article XIII of the

A joint venture is an association of persons or

companies jointly undertaking some commercial
enterprise with all of them generally contributing assets
and sharing risks.
x x x.
Considered more of a
partnership, a joint venture is governed by the laws on
contracts and on partnership. The joint venture created
between NIDC and Kawasaki falls within the purview of an
association pursuant to Section 5 of Article XIV of the
1973 Constitution and Section 11 of Article XII of the 1987
Constitution. Consequently, a joint venture that would
engage in the business of operating a public utility, such
as a shipyard, must observe the proportion of 60%-40%
Filipino-foreign capitalization. (JG Summit Holdings,

Inc. v. Court of Appeals, 345 SCRA 143, Nov. 20,

2000, 1st Div. [Ynares-Santiago])
The Rights of Indigenous Cultural
Communities/Indigenous Peoples

28. Enumerate the Constitutional provisions recognizing

and protecting the rights and interests of the
indigenous peoples.
Held: The framers of the 1987 Constitution,
looking back to the long destitution of our less fortunate
brothers, fittingly saw the historic opportunity to actualize
the ideals of people empowerment and social justice, and
to reach out particularly to the marginalized sectors of
society, including the indigenous peoples.
They
incorporated in the fundamental law several provisions
recognizing and protecting the rights and interests of the
indigenous peoples, to wit:

Constitution, entitled Social Justice and Human

Rights)

Section 6. The State shall apply the

principles of agrarian reform or stewardship,
whenever applicable in accordance with law, in
the disposition and utilization of other natural
resources, including lands of the public domain
under lease or concession, subject to prior rights,
homestead rights of small settlers, and the rights
of indigenous communities to their ancestral
lands. (Ibid.)
Section 17. The State shall recognize,
respect, and protect the rights of cultural
communities to preserve and develop their
cultures, traditions, and institutions.
It shall
consider these rights in the formulation of
national plans and policies. (Article XIV of the

Constitution,
entitled
Education,
Technology, Arts, Culture, and Sports)

Science,

Section 12. The Congress may create a

consultative body to advise the President on
policies affecting indigenous cultural communities,
the majority of the members of which shall come
from such communities.
(Article XVI of the

Constitution, entitled General Provisions)

(Separate Opinion, Kapunan, J., in Isagani Cruz v.
Secretary of Environment and Natural Resources,
et al., G.R. No. 135385, Dec. 6, 2000, En Banc)
29. Discuss the Indigenous Peoples Rights Act (R.A. No.
8371).

Section 22. The State recognizes and

promotes the rights of indigenous peoples within
the framework of national unity and development.

Held: Republic Act No. 8371 is entitled "An Act

to Recognize, Protect and Promote the Rights of
Indigenous Cultural Communities/Indigenous Peoples,
Creating a National Commission on Indigenous Peoples,
Establishing Implementing Mechanisms, Appropriating
Funds Therefor, and for Other Purposes." It is simply
known as "The Indigenous Peoples Rights Act of 1997" or
the IPRA.

Section 5. The State, subject to the

provisions of the Constitution and national
development policies and programs, shall protect
the rights of indigenous cultural communities to
their ancestral lands to ensure their economic,
social, and cultural well-being.

The IPRA recognizes the existence of the

indigenous cultural communities or indigenous peoples
(ICCs/IPs) as a distinct sector in Philippine society. It
grants these people the ownership and possession of their
ancestral domains and ancestral lands, and defines the
extent of these lands and domains. The ownership given
is the indigenous concept of ownership under customary
law which traces its origin to native title.

(Article II of the Constitution, entitled State

Principles and Policies)

The Congress may provide for the

applicability of customary laws governing property
rights and relations in determining the ownership
and extent of ancestral domains. (Article XII of

the Constitution, entitled National Economy and

Patrimony)

Xxx
Within their ancestral domains and ancestral
lands, the ICCs/IPs are given the right to self-governance
and empowerment (Sections 13 to 20), social justice and
human rights (Sections 21 to 28), the right to preserve
and protect their culture, traditions, institutions and
community intellectual rights, and the right to develop
20

their own sciences and technologies (Sections 29 to 37).

(Separate Opinion, Puno, J., in Isagani Cruz v.

Secretary of DENR, et al., G.R. No. 135385, Dec. 6,
2000, En Banc)
30. Define "indigenous
communities."

peoples/indigenous

cultural

Held: 1. Drawing inspiration from both our

fundamental law and international law, IPRA now employs
the politically-correct conjunctive term indigenous
peoples/indigenous cultural communities as follows:
Section 3. Definition of Terms. - For
purposes of this Act, the following terms shall
mean:
(i) Indigenous peoples/Indigenous cultural communities. refer to a group of people or homogenous societies
identified by self-ascription and ascription by others,
who have continuously lived as organized community
on communally bounded and defined territory, and
who have, under claims of ownership since time
immemorial, occupied, possessed and utilized such
territories, sharing common bonds of language,
customs, traditions, and other distinctive cultural traits,
or who have, through resistance to political, social and
cultural inroads of colonization, non-indigenous
religions
and
cultures,
became
historically
differentiated from the majority of Filipinos.
Indigenous peoples shall likewise include peoples who
are regarded as indigenous on account of their descent
from the populations which inhabited the country at
the time of conquest or colonization, or at the time of
inroads of non-indigenous religions and cultures, or the
establishment of present State boundaries, who retain
some or all of their own social, economic, cultural and
political institutions, but who may have been displaced
from their traditional domains or who may have
resettled outside their ancestral domains x x x.

(Separate Opinion, Kapunan, J., in Isagani Cruz

v. Secretary of Environment and Natural
Resources, et al., G.R. No. 135385, Dec. 6, 2000, En
Banc)

2. The IPRA is a law dealing with a specific group

of people, i.e., the Indigenous Cultural Communities
(ICCs) or the Indigenous Peoples (IPs). The term ICCs
is used in the 1987 Constitution while that of IPs is the
contemporary international language in the International
Labor Organization (ILO) Convention 169 and the United
Nations (UN) Draft Declaration on the Rights of
Indigenous Peoples.

Indigenous Cultural Communities or Indigenous

Peoples refer to a group of people or homogeneous
societies who have continuously lived as an organized
community on communally bounded and defined territory.

These groups of people have actually occupied, possessed

and utilized their territories under claim of ownership
since time immemorial. They share common bonds of
language, customs, traditions and other distinctive cultural
traits, or, they, by their resistance to political, social and
cultural inroads of colonization, non-indigenous religions
and cultures, became historically differentiated from the
Filipino majority. ICCs/IPs also include descendants of
ICCs/IPs who inhabited the country at the time of
conquest or colonization, who retain some or all of their
own social, economic, cultural and political institutions but
who may have been displaced from their traditional
territories or who may have resettled outside their

ancestral domains. (Separate Opinion, Puno, J., in

Isagani Cruz v. Secretary of DENR, et al., G.R. No.

135385, Dec. 6, 2000, En Banc)
31. Define ancestral domains and ancestral lands. Do
they constitute part of the land of the public domain?
Held: Ancestral domains and ancestral lands are
the private property of indigenous peoples and do not
constitute part of the land of the public domain.
The IPRA grants to ICCs/IPs a distinct kind of
ownership over ancestral domains and ancestral lands.
Ancestral lands are not the same as ancestral domains.
These are defined in Section 3(a) and (b) of the
Indigenous Peoples Rights Act x x x.

Ancestral domains are all areas belonging to

ICCs/IPs held under a claim of ownership, occupied or
possessed by ICCs/IPs by themselves or through their
ancestors, communally or individually since time
immemorial, continuously until the present, except when
interrupted by war, force majeure or displacement by
force, deceit, stealth or as a consequence of government
projects or any other voluntary dealings with government
and/or private individuals or corporations.
Ancestral
domains comprise lands, inland waters, coastal areas, and
natural resources therein and includes ancestral lands,
forests, pasture, residential, agricultural, and other lands
individually owned whether alienable or not, hunting
grounds, burial grounds, worship areas, bodies of water,
mineral and other natural resources. They also include
lands which may no longer be exclusively occupied by
ICCs/IPs but from which they traditionally had access to
for their subsistence and traditional activities, particularly
the home ranges of ICCs/IPs who are still nomadic and/or
shifting cultivators (Section 3[a], IPRA).
Ancestral lands are lands held by the ICCs/IPs
under the same conditions as ancestral domains except
that these are limited to lands and that these lands are
not merely occupied and possessed but are also utilized
by the ICCs/IPs under claims of individual or traditional
group ownership. These lands include but are not limited
to residential lots, rice terraces or paddies, private forests,
swidden farms and tree lots (Section 3[b], IPRA).
(Separate Opinion, Puno, J., in Isagani Cruz v.
Secretary of DENR, et al., G.R. No. 135385, Dec. 6,
2000, En Banc)
32. How may ICCs/IPs acquire rights to their ancestral
domains and ancestral lands?
Held:
The rights of the ICCs/IPs to their
ancestral domains and ancestral lands may be acquired in
two modes: (1) by native title over both ancestral lands
and domains; or (2) by torrens title under the Public Land
Act and the Land Registration Act with respect to
ancestral lands only. (Separate Opinion, Puno, J., in

Isagani Cruz v. Secretary of DENR, et al., G.R. No.

135385, Dec. 6, 2000, En Banc)

33. What is the concept of native title? What is a

Certificate of Ancestral Domain Title (CADT)?
Held: Native title refers to ICCs/IPs preconquest
rights to lands and domains held under a claim of private
ownership as far back as memory reaches. These lands
are deemed never to have been public lands and are
indisputably presumed to have been held that way since
before the Spanish Conquest. The rights of ICCs/IPs to
21

their ancestral domains (which also include ancestral

lands) by virtue of native title shall be recognized and
respected (Section 11, IPRA). Formal recognition, when
solicited by ICCs/IPs concerned, shall be embodied in a
Certificate of Ancestral Domain Title (CADT), which shall
recognize the title of the concerned ICCs/IPs over the
territories identified and delineated.
Like a torrens title, a CADT is evidence of private
ownership of land by native title. Native title, however, is
a right of private ownership peculiarly granted to ICCs/IPs
over their ancestral lands and domains.
The IPRA
categorically declares ancestral lands and domains held by
native title as never to have been public land. Domains
and lands held under native title are, therefore,
indisputably presumed to have never been public lands
and are private.
The concept of native title in the IPRA was taken
from the 1909 case of Carino v. Insular Government (41

Phil. 935 [1909], 212 U.S. 449, 53 L. Ed. 594). Carino

firmly established a concept of private land title that
existed irrespective of any royal grant from the State.

(Separate Opinion, Puno, J., in Isagani Cruz v.

Secretary of DENR, et al., G.R. No. 135385, Dec. 6,
2000, En Banc)
34. Distinguish ownership of land under native title and
ownership by acquisitive prescription against the
State.
Held:
Ownership by virtue of native title
presupposes that the land has been held by its possessor
and his predecessor-in-interest in the concept of an owner
since time immemorial. The land is not acquired from the
State, that is, Spain or its successor-in-interest, the United
States and the Philippine Government. There has been no
transfer of title from the State as the land has been
regarded as private in character as far back as memory
goes. In contrast, ownership of land by acquisitive
prescription against the State involves a conversion of the
character of the property from alienable public land to
private land, which presupposes a transfer of title from
the State to a private person. (Separate Opinion,

Kapunan, J., in Isagani Cruz v. Secretary of DENR,

G.R. No. 135385, Dec. 6, 2000, En Banc)

35. Discuss the concept of jura regalia and how it

evolved in the Philippines. Does it negate native title
to lands held in private ownership since time
immemorial?
Held: Generally, under the concept of jura
regalia, private title to land must be traced to some grant,
express or implied, from the Spanish Crown or its
successors, the American Colonial government, and
thereafter, the Philippine Republic. The belief that the
Spanish Crown is the origin of all land titles in the
Philippines has persisted because title to land must
emanate from some source for it cannot issue forth from
nowhere.
In its broad sense, the term jura regalia refers
to royal grants, or those rights which the King has by
virtue of his prerogatives. In Spanish law, it refers to a
right which the sovereign has over anything in which a
subject has a right of property or propriedad. These were
rights enjoyed during feudal times by the king as the
sovereign.

The theory of the feudal system was that title to

all lands was originally held by the King, and while the use
of lands was granted out to others who were permitted to
hold them under certain conditions, the King theoretically
retained the title. By fiction of law, the King was regarded
as the original proprietor of all lands, and the true and
only source of title, and from him all lands were held. The
theory of jura regalia was therefore nothing more than a
natural fruit of conquest.
The Regalian theory, however, does not negate
native title to lands held in private ownership since time
immemorial. In the landmark case of Carino v. Insular

Government (41 Phil. 935, 212 U.S. 449, 53 L. Ed. 594

[1909]), the United States Supreme Court, reversing the

decision of the pre-war Philippine Supreme Court, made

the following pronouncement:
x x x Every presumption is and ought to
be taken against the Government in a case like the
present. It might, perhaps, be proper and sufficient to
say that when, as far back as testimony or memory goes,

the land has been held by individuals under a claim of

private ownership, it will be presumed to have been held
in the same way from before the Spanish conquest, and
never to have been public land. x x x (Carino v. Insular
Government, supra note 75, at 941)
The above ruling institutionalized the recognition
of the existence of native title to land, or ownership of
land by Filipinos by virtue of possession under a claim of
ownership since time immemorial and independent of any
grant from the Spanish Crown, as an exception to the
theory of jura regalia.
Xxx

Carino was decided by the U.S. Supreme Court in

1909, at a time when decisions of the U.S. Court were
binding as precedent in our jurisdiction (Section 10,
Philippine Bill of 1902). We applied the Carino doctrine in
the 1946 case of Oh Cho v. Director of Lands (75 Phil. 890
[1946]), where we stated that [a]ll lands that were not
acquired from the Government either by purchase or by
grant, belong to the public domain, but [a]n exception to
the rule would be any land that should have been in the
possession of an occupant and of his predecessors in
interest since time immemorial, for such possession would
justify the presumption that the land had never been part
of the public domain or that it had been private property
even before the Spanish conquest. (Separate Opinion,
Kapunan, J., in Isagani Cruz v. Secretary of DENR,
G.R. No. 135385, Dec. 6, 2000, En Banc)

36. Does R.A. 8371, otherwise known as the Indigenous

Peoples Rights Act infringe upon the States
ownership over the natural resources within the
ancestral domains?
Held: Petitioners posit that IPRA deprives the
State of its ownership over mineral lands of the public
domain and other natural resources, as well as the States
full control and supervision over the exploration,
development and utilization of natural resources.
Specifically, petitioners and the Solicitor General assail
Sections 3[a], 5, and 7 of IPRA as violative of Section 2,
Article XII of the Constitution which states, in part, that
[a]ll lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the
22

State. (Section 2, Article XII, Constitution) They would

have the Court declare as unconstitutional Section 3[a] of
IPRA because the inclusion of natural resources in the
definition of ancestral domains purportedly results in the
abdication of State ownership over these resources.
Xxx
Section 3[a] merely defines the coverage of
ancestral domains, and describes the extent, limit and
composition of ancestral domains by setting forth the
standards and guidelines in determining whether a
particular area is to be considered as part of and within
the ancestral domains. In other words, Section 3[a]
serves only as a yardstick which points out what
properties are within the ancestral domains. It does not
confer or recognize any right of ownership over the
natural resources to the indigenous peoples. Its purpose
is definitional and not declarative of a right or title.
The specification of what areas belong to the
ancestral domains is x x x important to ensure that no
unnecessary encroachment on private properties outside
the ancestral domains will result during the delineation
process.
The mere fact that Section 3[a] defines
ancestral domains to include the natural resources found
therein does not ipso facto convert the character of such
natural resources as private property of the indigenous
peoples. Similarly, Section 5 in relation to Section 3[a]
cannot be construed as a source of ownership rights of
indigenous peoples over the natural resources simply
because it recognizes ancestral domains as their private
but community property.
The phrase private but community property is
merely descriptive of the indigenous peoples concept of
ownership as distinguished from that provided in the Civil
Code. x x x. In contrast, the indigenous peoples concept
of ownership emphasizes the importance of communal or
group ownership. By virtue of the communal character of
ownership, the property held in common cannot be sold,
disposed or destroyed because it was meant to benefit
the whole indigenous community and not merely the
individual member.
That IPRA is not intended to bestow ownership
over natural resources to the indigenous peoples is also
clear from the deliberations of the bicameral conference
committee on Section 7 which recites the rights of
indigenous peoples over their ancestral domains x x x.
Further, Section 7 makes no mention of any right
of ownership of the indigenous peoples over the natural
resources. In fact, Section 7[a] merely recognizes the
right to claim ownership over lands, bodies of water
traditionally and actually occupied by indigenous peoples,
sacred places, traditional hunting and fishing grounds, and
all improvements made by them at any time within the
domains. Neither does Section 7[b], which enumerates
certain rights of the indigenous peoples over the natural
resources found within their ancestral domains, contain
any recognition of ownership vis--vis the natural
resources.
What is evident is that the IPRA protects the
indigenous peoples rights and welfare in relation to the
natural resources found within their ancestral domains,
including the preservation of the ecological balance
therein and the need to ensure that the indigenous
peoples will not be unduly displaced when the Stateapproved activities involving the natural resources located

therein are undertaken. (Separate Opinion, Kapunan,

J., in Cruz v. Secretary of Environment and Natural

Resources, 347 SCRA 128, 284-293, Dec. 6, 2000,
En Banc [Per Curiam])
37. Has the concept of native title to natural resources,
like native title to land, been recognized in the
Philippines?
Held: The concept of native title to natural
resources, unlike native title to land, has not been
recognized in the Philippines. NCIP and Flavier, et al.
invoke the case of Reavies v. Fianza (40 Phil. 1017
[1909], 215 US 16, 54 L Ed 72) in support of their thesis
that native title to natural resources has been upheld in
this jurisdiction. X x x. However, a judicious examination
of Reavies reveals that, contrary to the position of NCIP
and Flavier, et al., the Court did not recognize native title
to natural resources. Rather, it merely upheld the right of
the indigenous peoples to claim ownership of minerals

under the Philippine Bill of 1902.

While x x x native title to land or private

ownership by Filipinos of land by virtue of time
immemorial possession in the concept of an owner was
acknowledged and recognized as far back during the
Spanish colonization of the Philippines, there was no
similar favorable treatment as regards natural resources.

(Separate Opinion, Kapunan, J., in Cruz v.

Secretary of Environment and Natural Resources,
347 SCRA 128, 284-293, Dec. 6, 2000, En Banc [Per
Curiam])
38. What is the underlying reason for the States
consistent assertion of ownership and control over
natural resources from the Spanish regime up to the
present?

Held: The unique value of natural resources has

been acknowledged by the State and is the underlying
reason for its consistent assertion of ownership and
control over said natural resources from the Spanish
regime up to the present. Natural resources, especially
minerals, were considered by Spain as an abundant
source of revenue to finance its battle in wars against
other nations. Hence, Spain, by asserting its ownership
over minerals wherever these may be found, whether in
public or private lands, recognized the separability of title
over lands and that over minerals which may be found
therein.
On the other hand, the United States viewed
natural resources as a source of wealth for its nationals.
As the owner of natural resources over the Philippines
after the latters cession from Spain, the United States
saw it fit to allow both Filipino and American citizens to
explore and exploit minerals in public lands, and to grant
patents to private mineral lands. x x x. Although the
United States made a distinction between minerals found
in public lands and those found in private lands, title in
these minerals was in all cases sourced from the State.
The framers of the 1935 Constitution found it necessary to
maintain the States ownership over natural resources to
insure their conservation for future generations of
Filipinos, to prevent foreign control of the country through
economic domination; and to avoid situations whereby the
Philippines would become a source of international
conflicts, thereby posing danger to its internal security
and independence. (Separate Opinion, Kapunan, J.,

in Cruz v. Secretary of Environment and Natural

23

Resources, 347 SCRA 128, 284-293, Dec. 6, 2000,

En Banc [Per Curiam])
39. What was the basis for the early Spanish decrees
embracing the theory of jura regalia? Is this also the
basis of the declaration in Section 2, Article XII of the
1987 Constitution that all lands of the public domain
are owned by the State? Consequently, did Spain
acquire title over all lands in the Philippines in the 16 th
century?
Held: Dominium was the basis for the early
Spanish decrees embracing the theory of jura regalia.
The declaration in Section 2, Article XII of the 1987
Constitution that all lands of the public domain are owned
by the State is likewise founded on dominium.
If
dominium, not imperium, is the basis of the theory of jura
regalia, then the lands which Spain acquired in the 16th
century were limited to non-private lands, because it
could only acquire lands which were not yet privatelyowned or occupied by the Filipinos.
Hence, Spain
acquired title only over lands which were unoccupied and
unclaimed, i.e., public lands. (Separate Opinion,

Kapunan, J., in Isagani Cruz v. Secretary of DENR,

G.R. No. 135385, Dec. 6, 2000, En Banc, See
Footnote 86)
The Right of the State to Recover Properties
Unlawfully Acquired by Public Officials or
Employees

40. Does the right of the State to recover properties

unlawfully acquired by public officials or employees
which may not be barred by prescription, laches, or
estoppel under Section 15, Article XI of the
Constitution apply to criminal cases for the recovery of
ill-gotten wealth?
Held: Section 15, Article XI, 1987 Constitution
provides that [T]he right of the State to recover
properties unlawfully acquired by public officials or
employees, from them or from their nominees as
transferees, shall not be barred by prescription, laches, or
estoppel. From the proceedings of the Constitutional
Commission of 1986, however, it was clear that this
provision applies only to civil actions for recovery of illgotten wealth, and not to criminal cases. Thus, the
prosecution of offenses arising from, relating or incident
to, or involving ill-gotten wealth contemplated in Section
15, Article XI of the Constitution may be barred by
prescription.
(Presidential Ad Hoc Fact-Finding

Committee on Behest Loans, et al. v. Hon. Aniano

A. Desierto, et al., G.R. No. 130140, Oct. 25, 1999,
En Banc [Davide, C.J.])
STRUCTURE OF GOVERNMENT
The Doctrine of Separation of Powers

41. May the Government, through the PCGG, validly bind

itself to cause the dismissal of all cases against the
Marcos heirs pending before the Sandiganbayan and
other courts in a Compromise Agreement entered into
between the former and the latter?
Held: This is a direct encroachment on judicial
power, particularly in regard to criminal jurisdiction. Wellsettled is the doctrine that once a case has been filed
before a court of competent jurisdiction, the matter of its

dismissal or pursuance lies within the full discretion and

control of the judge. In a criminal case, the manner in
which the prosecution is handled, including the matter of
whom to present as witnesses, may lie within the sound
discretion of the government prosecutor; but the court
decides, based on the evidence proffered, in what manner
it will dispose of the case. Jurisdiction, once acquired by
the trial court, is not lost despite a resolution, even by the
justice secretary, to withdraw the information or to
dismiss the complaint.
The prosecutions motion to
withdraw or to dismiss is not the least binding upon the
court. On the contrary, decisional rules require the trial
court to make its own evaluation of the merits of the case,
because granting such motion is equivalent to effecting a
disposition of the case itself.
Thus, the PCGG, as the government prosecutor of
ill-gotten wealth cases, cannot guarantee the dismissal of
all such criminal cases against the Marcoses pending in
the courts, for said dismissal is not within its sole power
and discretion. (Chavez v. PCGG, 299 SCRA 744,

Dec. 9, 1998 [Panganiban])

Delegation of Powers

42. What are the tests of a valid delegation of power?

Held: [I]n every case of permissible delegation,
there must be a showing that the delegation itself is valid.
It is valid only if the law (a) is complete in itself, setting
forth therein the policy to be executed, carried out, or
implemented by the delegate; and (b) fixes a standard
the limits of which are sufficiently determinate and
determinable to which the delegate must conform in the
performance of his functions. A sufficient standard is one
which defines legislative policy, marks its limits, maps out
its boundaries and specifies the public agency to apply it.
It indicates the circumstances under which the legislative
command is to be effected. (Santiago v. COMELEC,

270 SCRA 106, March 19, 1997)

The Legislative Department

43. Discuss the nature of the Party-List system.

without any qualification, open to all?

Is it,

Held: 1. The party-list system is a social justice

tool designed not only to give more law to the great
masses of our people who have less in life, but also to
enable them to become veritable lawmakers themselves,
empowered to participate directly in the enactment of
laws designed to benefit them. It intends to make the
marginalized and the underrepresented not merely
passive recipients of the States benevolence, but active
participants in the mainstream of representative
democracy. Thus, allowing all individuals and groups,
including those which now dominate district elections, to
have the same opportunity to participate in party-list
elections would desecrate this lofty objective and
mongrelize the social justice mechanism into an atrocious
veneer for traditional politics. (Ang Bagong Bayani

OFW Labor Party v. COMELEC, G.R. No. 147589,

June 26, 2001, En Banc [Panganiban])

2. Crucial to the resolution of this case is the

fundamental social justice principle that those who have
less in life should have more in law. The party-list system
is one such tool intended to benefit those who have less
in life. It gives the great masses of our people genuine
24

hope and genuine power. It is a message

and the prejudiced, and even to
underground, that change is possible. It
for them to come out of their limbo
opportunity.

to the destitute
those in the
is an invitation
and seize the

Clearly, therefore, the Court cannot accept the

submissions x x x that the party-list system is, without any
qualification, open to all. Such position does not only
weaken the electoral chances of the marginalized and
underrepresented; it also prejudices them. It would gut
the substance of the party-list system.
Instead of
generating hope, it would create a mirage. Instead of
enabling the marginalized, it would further weaken them
and aggravate their marginalization. (Ang Bagong

Bayani OFW Labor Party v. COMELEC, G.R. No.

147589, June 26, 2001, En Banc [Panganiban])

44. Are political parties even the major ones

prohibited from participating in the party-list
elections?
Held: Under the Constitution and RA 7941,
private respondents cannot be disqualified from the partylist elections, merely on the ground that they are political
parties. Section 5, Article VI of the Constitution, provides
that members of the House of Representatives may be
elected through a party-list system of registered national,
regional, and sectoral parties or organizations.
Furthermore, under Sections 7 and 8, Article IX
[C] of the Constitution, political parties may be registered
under the party-list system. X x x
During the deliberations in the Constitutional
Commission, Comm. Christian S. Monsod pointed out that
the participants in the party-list system may be a regional
party, a sectoral party, a national party, UNIDO,
Magsasaka, or a regional party in Mindanao. x x x.
Xxx
For its part, Section 2 of RA 7941 also provides
for a party-list system of registered national, regional and
sectoral parties or organizations or coalitions thereof, x x
x. Section 3 expressly states that a party is either a
political party or a sectoral party or a coalition of parties.
More to the point, the law defines political party as an
organized group of citizens advocating an ideology or
platform, principles and policies for the general conduct of
government and which, as the most immediate means of
securing their adoption, regularly nominates and supports
certain of its leaders and members as candidates for
public office.
Furthermore, Section 11 of RA 7941 leaves no
doubt as to the participation of political parties in the
party-list system. X x x
Indubitably, therefore, political parties even the
major ones may participate in the party-list elections.
That political parties may participate in the partylist elections does not mean, however, that any political
party or any organization or group for that matter may
do so.
The requisite character of these parties or
organizations must be consistent with the purpose of the
party-list system, as laid down in the Constitution and RA
7941. X x x (Ang Bagong Bayani OFW Labor Party

v. COMELEC, G.R. No. 147589, June 26, 2001, En

Banc [Panganiban])

45. Is
the
enumeration
of
marginalized
and
underrepresented sectors to be represented under the
party-list system in RA 7941 exclusive? Will it be
correct to assert that the party-list system is not
exclusive to the marginalized and underrepresented
sectors, but that even the super-rich and
overrepresented can validly participate in party-list
elections?
Held: While the enumeration of marginalized and
underrepresented sectors is not exclusive, it demonstrates
the clear intent of the law that not all sectors can be
represented under the party-list system. X x x
[W]e stress that the party-list system seeks to
enable certain Filipino citizens specifically those
belonging to marginalized and underrepresented sectors,
organizations and parties to be elected to the House of
Representatives. The assertion x x x that the party-list
system is not exclusive to the marginalized and
underrepresented disregards the clear statutory policy.
Its claim that even the super-rich and overrepresented
can participate desecrates the spirit of the party-list
system.
Indeed, the law crafted to address the peculiar
disadvantage of Payatas hovel dwellers cannot be
appropriated by the mansion owners of Forbes Park. The
interests of these two sectors are manifestly disparate;
hence, the x x x position to treat them similarly defies
reason and common sense. X x x
While the business moguls and the mega-rich are,
numerically speaking, a tiny minority, they are neither
marginalized nor underrepresented, for the stark reality is
that their economic clout engenders political power more
awesome than their numerical limitation. Traditionally,
political power does not necessarily emanate from the size
of ones constituency; indeed, it is likely to arise more
directly from the number and amount of ones bank
accounts.
It is ironic, therefore, that the marginalized and
underrepresented in our midst are the majority who
wallow in poverty, destitution and infirmity. It was for
them that the party-list system was enacted to give
them not only genuine hope, but genuine power; to give
them opportunity to be elected and to represent the
specific concerns of their constituencies; and simply to
give them a direct vote in Congress and in the larger
affairs of the State. In its noblest sense, the party-list
system truly empowers the masses and ushers a new
hope for genuine change.
Verily, it invites those
marginalized and underrepresented in the past the farm
hands, the fisher folk, the urban poor, even those in the
underground movement to come out and participate, as
indeed many of them came out and participated during
the last elections. The State cannot now disappoint and
frustrate them by disabling the desecrating this social
justice vehicle.
Because the marginalized and underrepresented
had not been able to win in the congressional district
elections normally dominated by traditional politicians and
vested groups, 20 percent of the seats in the House of
Representatives were set aside for the party-list system.
In arguing that even those sectors who normally
controlled 80 percent of the seats in the House could
participate in the party-list elections for the remaining 20
percent, the OSG and the Comelec disregard the
25

fundamental difference between the congressional district

elections and the party-list elections.
As earlier noted, the purpose of the party-list
provision was to open up the system, in order to enhance
the chance of sectoral groups and organizations to gain
representation in the House of Representatives through
the simplest scheme possible. Logic shows that the
system has been opened to those who have never gotten
a foothold within it those who cannot otherwise win in
regular elections and who therefore need the simplest
scheme possible to do so. Conversely, it would be
illogical to open the system to those who have long been
within it those privileged sectors that have long
dominated the congressional district elections.
Xxx
Verily, allowing the non-marginalized and
overrepresented to vie for the remaining seats under the
party-list system would not only dilute, but also prejudice
the chance of the marginalized and underrepresented,
contrary to the intention of the law to enhance it. The
party-list system is a tool for the benefit of the
underprivileged; the law could not have given the same
tool to others, to the prejudice of the intended
beneficiaries. (Ang Bagong Bayani OFW Labor

Party v. COMELEC, G.R. No. 147589, June 26, 2001,

En Banc [Panganiban])

46. Section 5(2), Article VI of the Constitution provides

that [t]he party-list representatives shall constitute
twenty per centum of the total number of
representatives including those under the party-list.
Does the Constitution require all such allocated seats
to be filled up all the time and under all
circumstances?
Held: The Constitution simply states that [t]he
party-list representatives shall constitute twenty per
centum of the total number of representatives including
those under the party-list.
Xxx
We rule that a simple reading of Section 5, Article
VI of the Constitution, easily conveys the equally simple
message that Congress was vested with the broad power
to define and prescribe the mechanics of the party-list
system of representation. The Constitution explicitly sets
down only the percentage of the total membership in the
House of Representatives reserved for party-list
representatives.
In the exercise of its constitutional prerogative,
Congress enacted RA 7941. As said earlier, Congress
declared therein a policy to promote proportional
representation in the election of party-list representatives
in order to enable Filipinos belonging to the marginalized
and underrepresented sectors to contribute legislation
that would benefit them. It however deemed it necessary
to require parties, organizations and coalitions
participating in the system to obtain at least two percent
of the total votes cast for the party-list system in order to
be entitled to a party-list seat. Those garnering more
than this percentage could have additional seats in
proportion to their total number of votes. Furthermore,
no winning party, organization or coalition can have more
than three seats in the House of Representatives. X x x

Considering the foregoing statutory requirements,

it will be shown x x x that Section 5(2), Article VI of the
Constitution is not mandatory. It merely provides a
ceiling for party-list seats in Congress. (Veterans

Federation Party v. COMELEC, G.R. No. 136781,

Oct. 6, 2000, En Banc [Panganiban])

47. What are the inviolable parameters to determine the

winners in a Philippine-style party-list election?
Held: To determine the winners in a Philippinestyle party-list election, the Constitution and Republic Act
No. 7941 mandate at least four inviolable parameters.
These are:

First, the twenty percent allocation - the

combined number of all party-list congressmen shall not
exceed twenty percent of the total membership of the
House of Representatives, including those elected under
the party list.
Second, the two percent threshold - only
those garnering a minimum of two percent of the total
valid votes cast for the party-list system are "qualified" to
have a seat in the House of Representatives.
Third, the three seat limit - each qualified
party, regardless of the number of votes it actually
obtained, is entitled to a maximum of three seats; that is,
one "qualifying" and two additional seats.
Fourth, proportional representation - the
additional seats which a qualified party is entitled to shall
be computed "in proportion to their total number of
votes." (Veterans Federation Party v. COMELEC,
G.R. No. 136781 and Companion Cases, Oct. 6,
2000, En Banc [Panganiban])

48. To determine the total votes cast for the party-list

system, should the votes tallied for the disqualified
candidates be deducted?
Held: The instant Motions for proclamation
contend that the disqualification of many party-list
organizations has reduced the total number of votes cast
for the party-list elections. Because of this reduction,
the two-percent benchmark required by law has now been
allegedly attained by movants. Hence, they now pray for
their proclamation as winners in the last party-list
elections.
Recall that under Section 11(b) of RA 7941 (the
Party-List Act), only those parties garnering a minimum of
two percent of the total votes cast for the party-list
system are entitled to have a seat in the House of
Representatives. The critical question now is this: To
determine the total votes cast for the party-list system,
should the votes tallied for the disqualified candidates be
deducted? Otherwise stated, does the clause total votes
cast for the party-list system include only those ballots
cast for qualified party-list candidates?
To answer this question, there is a need to review
related jurisprudence on the matter, especially Labo v.
Comelec and Grego v. Comelec, which were mentioned in
our February 18, 2003 Resolution.

Labo and Grego Not Applicable

In Labo, the Court declared that the ineligibility
of a candidate receiving majority votes does not entitle
26

the eligible candidate receiving the next highest number

of votes to be declared elected. A minority or defeated
candidate cannot be deemed elected to the office. In
other words, the votes cast for an ineligible or disqualified
candidate cannot be considered stray.

Bayani OFW Labor Party v. COMELEC, G.R. No.

147589, June 25, 2003, En Banc [Panganiban])

However, this rule would be different if the

electorate, fully aware in fact and in law of a candidates
disqualification so as to bring such awareness within the
realm of notoriety, would nonetheless cast their votes in
favor of the ineligible. In such case, the electorate may
be said to have waived the validity and efficacy of their
votes by notoriously misapplying their franchise or
throwing away their votes, in which case, the eligible
candidate obtaining the next higher number of votes may
be deemed elected. In short, the votes cast for a
notoriously disqualified candidate may be considered
stray and excluded from the canvass.

Held: In this light, the Court finds it appropriate

to lay down the following guidelines, culled from the law
and the Constitution, to assist the Comelec in its work.

The foregoing pronouncement was reiterated in

Grego, which held that the exception mentioned in Labo
v. Comelec is predicated on the concurrence of two
assumptions, namely: 1) the one who obtained the
highest number of votes is disqualified; and 2) the
electorate is fully aware in fact and in law of a candidates
disqualification so as to bring such awareness within the
realm of notoriety but would nonetheless cast their votes
in favor of the ineligible candidate.
Note,
however,
that
the
foregoing
pronouncements (1) referred to regular elections for local
offices and (2) involved the interpretation of Section 6 of
RA 6646. They were not meant to cover party-list
elections, which are specifically governed by RA 7941.
Section 10 of this latter law clearly provides that the votes
cast for a party, a sectoral organization or a coalition not

entitled to be voted for shall not be counted:

Xxx
The language of the law is clear; hence, there is
room, not for interpretation, but merely for application.
Likewise, no recourse to extrinsic aids is warranted when
the language of the law is plain and unambiguous.
Another reason for not applying Labo and Grego
is that these cases involve single elective posts, while the
present controversy pertains to the acquisition of a
number of congressional seats depending on the total
election results such that even those garnering second,
third, fourth or lesser places could be proclaimed winners
depending on their compliance with other requirements.
RA 7941 is a special statute governing the
election of party-list representatives and is the controlling
law in matters pertaining thereto. Since Labo and Section
6 of RA 6646 came into being prior to the enactment of
RA 7941, the latter is a qualification of the former ruling
and law. On the other hand, Grego and other related
cases that came after the enactment of RA 7941 should
be construed as inapplicable to the latter.
Subtracting the votes garnered by these
disqualified party-list groups from the total votes cast
under the party-list system will reduce the base figure to
6,523,185. This means that the two-percent threshold
can be more easily attained by the qualified marginalized
and under-represented groups. Hence, disregarding the
votes of disqualified party-list participants will increase
and broaden the number of representatives from these
sectors. Doing so will further concretize and give flesh to
the policy declaration in RA 7941 x x x. (Ang Bagong

49. State the guidelines

Participants.

for

screening

Party-List

First, the political party, sector, organization or

coalition must represent the marginalized and
underrepresented groups identified in Section 5 of RA
7941. In other words, it must show through its
constitution, articles of incorporation, bylaws, history,
platform of government and track record that it
represents and seeks to uplift marginalized and
underrepresented sectors.
Verily, majority of its
membership should belong to the marginalized and
underrepresented. And it must demonstrate that in a
conflict of interest, it has chosen or is likely to choose the
interest of such sectors.
Second, while even major political parties are
expressly allowed by RA 7941 and the Constitution to
participate in the party-list system, they must comply with
the declared statutory policy of enabling Filipino citizens
belonging to marginalized and underrepresented sectors x
x x to be elected to the House of Representatives. In
other words, while they are not disqualified merely on the
ground that they are political parties, they must show,
however, that they represent the interests of the
marginalized and underrepresented. X x x
Third, in view of the objections directed against
the registration of Ang Buhay Hayaang Yumabong, which
is allegedly a religious group, the Court notes the express
constitutional provision that the religious sector may not
be represented in the party-list system. x x x
Furthermore, the Constitution provides that
religious denominations and sects shall not be
registered. (Sec. 2 [5], Article IX [C]) The prohibition
was explained by a member of the Constitutional
Commission in this wise: [T]he prohibition is on any
religious organization registering as a political party. I do
not see any prohibition here against a priest running as a
candidate.
That is not prohibited here; it is the
registration of a religious sect as a political party.

Fourth, a party or an organization must not be

disqualified under Section 6 of RA 7941, which
enumerates the grounds for disqualification as follows:
1) It is a religious sect or denomination,
organization or association organized for
religious purposes;
2) It advocates violence or unlawful means to
seek its goal;
3) It is a foreign party or organization;
4) It is receiving support from any foreign
government,
foreign
political
party,
foundation, organization, whether directly or
through any of its officers or members or
indirectly through third parties for partisan
election purposes;
5) It violates or fails to comply with laws, rules
or regulations relating to elections;
6) It declares untruthful statements in its
petition;
27

7) It has ceased to exist for at least one (1)

year; or
8) It fails to participate in the last two (2)
preceding elections or fails to obtain at least
two per centum (2%) of the votes cast under
the party-list system in the two (2) preceding
elections for the constituency in which it had
registered.
Note should be taken of paragraph 5, which
disqualifies a party or group for violation of or failure to
comply with election laws and regulations. These laws
include Section 2 of RA 7941, which states that the partylist system seeks to enable Filipino citizens belonging to
marginalized and underrepresented sectors, organizations
and parties x x x to become members of the House of
Representatives. A party or organization, therefore, that
does not comply with this policy must be disqualified.

Fifth, the party or organization must not be an

adjunct of, or a project organized or an entity funded or
assisted by, the government. By the very nature of the
party-list system, the party or organization must be a
group of citizens, organized by citizens and operated by
citizens. It must be independent of the government. The
participation of the government or its officials in the
affairs of a party-list candidate is not only illegal and
unfair to other parties, but also deleterious to the
objective of the law: to enable citizens belonging to
marginalized
and
underrepresented
sectors
and
organization to be elected to the House of
Representatives.
Sixth, the party must not only comply with the
requirements of the law; its nominees must likewise do
so. x x x
Seventh,

not only the candidate party or

organization
must
represent
marginalized
and
underrepresented sectors; so also must its nominees. To
repeat, under Section 2 of RA 7941, the nominees must
be Filipino citizens who belong to marginalized and
underrepresented sectors, organizations and parties.
Surely, the interests of the youth cannot be fully
represented by a retiree; neither can those of the urban
poor or the working class, by an industrialist. To allow
otherwise is to betray the State policy to give genuine
representation to the marginalized and underrepresented.

Eighth, x x x while lacking a well-defined political

constituency, the nominee must likewise be able to
contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a
whole. (Ang Bagong Bayani OFW Labor Party v.
COMELEC, G.R. No. 147589, June 26, 2001, En Banc
[Panganiban])

50. Discuss the history of the constitutional provision

granting immunity from arrest or detention of
Members of Congress, and how should it be
construed?
Held: The immunity from arrest or detention of
Senators and members of the House of Representatives x
x x arises from a provision of the Constitution. The
history of the provision shows that the privilege has
always been granted in a restrictive sense. The provision
granting an exemption as a special privilege cannot be
extended beyond the ordinary meaning of its terms. It
may not be extended by intendment, implication or
equitable considerations.

The 1935 Constitution provided in its Article VI on

the Legislative Department:
Sec. 15. The Senators and Members of
the House of Representatives shall in all cases
except treason, felony, and breach of the peace,
be privileged from arrest during their attendance
at the sessions of Congress, and in going to and
returning from the same; x x x.
Because of the broad coverage of felony and
breach of the peace, the exemption applied only to civil
arrests.
A congressman like the accused-appellant,
convicted under Title Eleven of the Revised Penal Code
could not claim parliamentary immunity from arrest. He
was subject to the same general laws governing all
persons still to be tried or whose convictions were
pending appeal.
The 1973 Constitution broadened the privilege of
immunity as follows:
Article VIII, Sec. 9. A Member of the
Batasang Pambansa shall, in all offenses
punishable by not more than six years
imprisonment, be privileged from arrest during his
attendance at its sessions and in going to and
returning from the same.
For offenses punishable by more than six years
imprisonment, there was no immunity from arrest. The
restrictive interpretation of immunity and the intent to
confine it within carefully defined parameters is illustrated
by the concluding portion of the provision, to wit:
X x x but the Batasang Pambansa shall
surrender the member involved to the custody of
the law within twenty four hours after its
adjournment for a recess or for its next session,
otherwise such privilege shall cease upon its
failure to do so.
The present Constitution adheres to the same
restrictive rule minus the obligation of Congress to
surrender the subject Congressman to the custody of the
law.
The requirement that he should be attending
sessions or committee meetings has also been removed.
For relatively minor offenses, it is enough that Congress is
in session. (People v. Jalosjos, 324 SCRA 689, Feb.

3, 2000, En Banc [Ynares-Santiago])

51. Accused-appellant Congressman Romeo G. Jalosjos

filed a motion before the Court asking that he be
allowed to fully discharge the duties of a
Congressman, including attendance at legislative
sessions and committee meetings despite his having
been convicted in the first instance of a non-bailable
offense. He contended that his reelection being an
expression of popular will cannot be rendered inutile
by any ruling, giving priority to any right or interest
not even the police power of the State. Resolve.
Held:
The accused-appellant argues that a
member of Congress function to attend sessions is
underscored by Section 16(2), Article VI of the
Constitution which states that
(2) A majority of each House shall
constitute a quorum to do business, but a smaller
number may adjourn from day to day and may
28

compel the attendance of absent Members in such

manner, and under such penalties, as such House
may provide.
However, the accused-appellant has not given any
reason why he should be exempted from the operation of
Section 11, Article VI of the Constitution. The members of
Congress cannot compel absent members to attend
sessions if the reason for the absence is a legitimate one.
The confinement of a Congressman charged with a crime
punishable by imprisonment of more than six years is not
merely authorized by law, it has constitutional
foundations.
Accused-appellants reliance on the ruling in

Aguinaldo v. Santos (212 SCRA 768, at 773 [1992]),

which states, inter alia, that
The Court should never remove a public
officer for acts done prior to his present term of
office. To do otherwise would be to deprive the
people of their right to elect their officers. When
the people have elected a man to office, it must
be assumed that they did this with the knowledge
of his life and character, and that they
disregarded or forgave his fault or misconduct, if
he had been guilty of any. It is not for the Court,
by reason of such fault or misconduct, to
practically overrule the will of the people.
will not extricate him from his predicament. It can be
readily seen x x x that the Aguinaldo case involves the
administrative removal of a public officer for acts done
prior to his present term of office. It does not apply to
imprisonment arising from the enforcement of criminal
law.
Moreover, in the same way that preventive
suspension is not removal, confinement pending appeal is
not removal. He remains a Congressman unless expelled
by Congress or, otherwise, disqualified.
One rationale behind confinement, whether
pending appeal or after final conviction, is public selfdefense. Society must protect itself. It also serves as an
example and warning to others.
A person charged with crime is taken into custody
for purposes of the administration of justice. As stated in
United States v. Gustilo (19 Phil. 208, 212), it is the injury
to the public which State action in criminal law seeks to
redress. It is not the injury to the complainant. After
conviction in the Regional Trial Court, the accused may be
denied bail and thus subjected to incarceration if there is
risk of his absconding.
The accused-appellant states that the plea of the
electorate which voted him into office cannot be
supplanted by unfounded fears that he might escape
eventual
punishment
if
permitted
to
perform
congressional duties outside his regular place of
confinement.
It will be recalled that when a warrant for
accused-appellants arrest was issued, he fled and evaded
capture despite a call from his colleagues in the House of
Representatives for him to attend the sessions ands to
surrender voluntarily to the authorities. Ironically, it is
now the same body whose call he initially spurned which
accused-appellant is invoking to justify his present motion.
This can not be countenanced because x x x aside from its
being contrary to well-defined Constitutional restraint, it

would be a mockery of the aims of the States penal

system.
Accused-appellant argues that on several
occasions, the Regional Trial Court of Makati granted
several motions to temporarily leave his cell at the Makati
City Jail, for official or medical reasons x x x.
He also calls attention to various instances, after
his transfer at the New Bilibid Prison in Muntinlupa City,
when he was likewise allowed/permitted to leave the
prison premises x x x.
There is no showing that the above privileges are
peculiar to him or to a member of Congress. Emergency
or compelling temporary leaves from imprisonment are
allowed to all prisoners, at the discretion of the authorities
or upon court orders.
What the accused-appellant seeks is not of an
emergency nature. Allowing accused-appellant to attend
congressional sessions and committee meetings for five
(5) days or more in a week will virtually make him a free
man with all the privileges appurtenant to his position.
Such an aberrant situation not only elevates accusedappellants status to that of a special class, it also would
be a mockery of the purposes of the correction system. X
xx
The accused-appellant avers that his constituents
in the First District of Zamboanga del Norte want their
voices to be heard and that since he is treated as bona
fide member of the House of Representatives, the latter
urges a co-equal branch of government to respect his
mandate. He also claims that the concept of temporary
detention does not necessarily curtail his duty to
discharge his mandate and that he has always complied
with the conditions/restrictions when he is allowed to
leave jail.
We remain unpersuaded.
Xxx
When the voters of his district elected the
accused-appellant to Congress, they did so with full
awareness of the limitations on his freedom of action.
They did so with the knowledge that he could achieve
only such legislative results which he could accomplish
within the confines of prison. To give a more drastic
illustration, if voters elect a person with full knowledge
that he is suffering from a terminal illness, they do so
knowing that at any time, he may no longer serve his full
term in office. (People v. Jalosjos, 324 SCRA 689,

Feb. 3, 2000, En Banc [Ynares-Santiago])

52. May the Supreme Court properly inquire into the

motives of the lawmakers in conducting legislative
investigations? Can it enjoin the Congress or any of
its regular and special committees from making
inquiries in aid of legislation?
Held:
The allocation of constitutional
boundaries is a task that this Court must perform under
the Constitution. Moreover, as held in a recent case

(Neptali A. Gonzales, et al. v. Hon. Catalino Macaraig, Jr.,

et al., G.R. No. 87636, 19 November 1990, 191 SCRA 452,
463), [t]he political question doctrine neither interposes
an obstacle to judicial determination of the rival claims.
The jurisdiction to delimit constitutional boundaries has
been given to this Court.
It cannot abdicate that

29

obligation mandated by the 1987 Constitution, although

said provision by no means does away with the
applicability of the principle in appropriate cases.

the Senate to look into the possible violation of the

law in the case, particularly with regard to Republic
Act No. 3019, the Anti-Graft and Corrupt Practices
Act.

The Court is thus of the considered view that it

has jurisdiction over the present controversy for the
purpose of determining the scope and extent of the power
of the Senate Blue Ribbon Committee to conduct inquires
into private affairs in purported aid of legislation.

On motion of Senator Orlando Mercado, the

matter was referred by the Senate to the Committee
on Accountability of Public Officers (Blue Ribbon
Committee). Thereafter, the Senate Blue Ribbon
Committee started its investigation on the matter.
Petitioners and Ricardo Lopa were subpoenaed by the
Committee to appear before it and testify on what
they know regarding the sale of the thirty-six (36)
corporations belonging
to Benjamin Kokoy
Romualdez.

(Section 1, Article VIII of the 1987 Constitution)

(Bengzon, Jr. v. Senate Blue Ribbon Committee,

203 SCRA 767, Nov. 20, 1991, En Banc [Padilla])
53. Is the power of both houses of Congress to conduct
inquiries in aid of legislation absolute or unlimited?

Held:
The 1987 Constitution expressly
recognizes the power of both houses of Congress to
conduct inquiries in aid of legislation (In Arnault v.

Nazareno, 87 Phil. 29, this Court held that although there

was no express provision in the 1935 Constitution giving
such power to both houses of Congress, it was so
incidental to the legislative function as to be implied.).
Thus, Section 21, Article VI provides x x x.

The power of both houses of Congress to conduct

inquiries in aid of legislation is not, therefore, absolute or
unlimited. Its exercise is circumscribed by the aforequoted provision of the Constitution. Thus, as provided
therein, the investigation must be in aid of legislation in
accordance with its duly published rules of procedure and
that the rights of persons appearing in or affected by
such inquiries shall be respected. It follows then that the
rights of persons under the Bill of Rights must be
respected, including the right to due process and the right
not to be compelled to testify against ones self.
The power to conduct formal inquiries or
investigations is specifically provided for in Sec. 1 of the

Senate Rules of Procedure Governing Inquiries in Aid of

Legislation.
Such inquiries may refer to the

implementation or re-examination of any law or in

connection with any proposed legislation or the
formulation of future legislation. They may also extend to
any and all matters vested by the Constitution in Congress
and/or in the Senate alone.
As held in Jean L. Arnault v. Leon Nazareno, et al,
(No. L-3820, July 18, 1950, 87 Phil. 29), the inquiry, to be
within the jurisdiction of the legislative body making it,
must be material or necessary to the exercise of a power
in it vested by the Constitution, such as to legislate or to
expel a member.
Under Sec. 4 of the aforementioned Rules, the
Senate may refer to any committee or committees any
speech or resolution filed by any Senator which in its
judgment requires an appropriate inquiry in aid of
legislation. In order therefore to ascertain the character
or nature of an inquiry, resort must be had to the speech
or resolution under which such an inquiry is proposed to
be made. (Bengzon, Jr. v. Senate Blue Ribbon

Committee, 203 SCRA 767, Nov. 20, 1991, En Banc

[Padilla])

54. On 13 September 1988, the Senate Minority Floor

Leader, Hon. Juan Ponce Enrile delivered a speech
on a matter of personal privilege before the Senate
on the alleged take-over of SOLOIL Incorporated, the
flagship on the First Manila Management of
Companies (FMMC) by Ricardo Lopa and called upon

At the hearing held on 23 May 1989, Ricardo Lopa

declined to testify on the ground that his testimony
may unduly prejudice the defendants in Civil Case
No. 0035 before the Sandiganbayan. Petitioner Jose
F.S. Bengzon, Jr. likewise refused to testify invoking
his constitutional right to due process, and averring
that the publicity generated by respondent
Committees inquiry could adversely affect his rights
as well as those of the other petitioners who are his
co-defendants in Civil Case No. 0035 before the
Sandiganbayan.
The Senate Blue Ribbon Committee, thereupon,
suspended its inquiry and directed the petitioners to
file their memorandum on the constitutional issues
raised, after which, it issued a resolution dated 5 June
1989 rejecting the petitioners plea to be excused
from testifying, and the Committee voted to pursue
and continue its investigation of the matter. X x x
Claiming that the Senate Blue Ribbon Committee
is poised to subpoena and require their attendance
and testimony in proceedings before the Committee,
in excess of its jurisdiction and legislative rights, and
that there is no appeal nor any other plain, speedy
and adequate remedy in the ordinary course of law,
the petitioners filed the present petition for prohibition
with a prayer for temporary restraining order and/or
injunctive relief.
Held: A perusal of the speech of Senator Enrile
reveals that he (Senator Enrile) made a statement which
was published in various newspapers on 2 September
1988 accusing Mr. Ricardo Baby Lopa of having taken
over the FMMC Group of Companies. X x x
Verily, the speech of Senator Enrile contained no
suggestion of contemplated legislation; he merely called
upon the Senate to look into a possible violation of Sec. 5
of RA No. 3019, otherwise known as The Anti-Graft and
Corrupt Practices Act. In other words, the purpose of the
inquiry to be conducted by respondent Blue Ribbon
Committee was to find out whether or not the relatives of
President Aquino, particularly Mr. Ricardo Lopa, had
violated the law in connection with the alleged sale of the
36 or 39 corporations belonging to Benjamin Kokoy
Romualdez to the Lopa Group. There appears to be,
therefore, no intended legislation involved.
Xxx
It appears, therefore, that the contemplated
inquiry by respondent Committee is not really in aid of
legislation because it is not related to a purpose within
the jurisdiction of Congress, since the aim of the
30

investigation is to find out whether or not the relatives of

the President or Mr. Ricardo Lopa had violated Section 5
of RA No. 3019, the Anti-Graft and Corrupt Practices
Act, a matter that appears more within the province of
the courts rather than of the legislature. Besides, the
Court may take judicial notice that Mr. Ricardo Lopa died
during the pendency of this case. In John T. Watkins v.
United States, it was held:
x x x. The power of Congress to conduct
inquiries in aid of legislation is inherent in the
legislative process. That power is broad. It
encompasses
inquiries
concerning
the
administration of existing laws as well as
proposed or possibly needed statutes. It includes
surveys of defects in our social, economic, or
political system for the purpose of enabling
Congress to remedy them.
It comprehends
probes into departments of the Federal
Government to expose corruption, inefficiency or
waste. But broad as is this power of inquiry, it is
not unlimited. There is no general authority to

expose the private affairs of individuals without

justification in terms of the functions of Congress.
This was freely conceded by the Solicitor General
in his arguments in this case. Nor is the Congress
a law enforcement or trial agency. These are
functions of the executive and judicial
departments of government. No inquiry is an end
in itself; it must be related to and in furtherance
of a legislative task of Congress. Investigations
conducted solely for the personal aggrandizement
of the investigators or to punish those
investigated are indefensible. (italics supplied)

It cannot be overlooked that when respondent

Committee decided to conduct its investigation of the
petitioners, the complaint in Civil Case No. 0035 had
already been filed with the Sandiganbayan. A perusal of
that complaint shows that one of its principal causes of
action against herein petitioners, as defendants therein, is
the alleged sale of the 36 (or 39) corporations belonging
to Benjamin Kokoy Romualdez. Since the issues in said
complaint had long been joined by the filing of petitioners
respective answers thereto, the issue sought to be
investigated by the respondent Committee is one over
which jurisdiction had been acquired by the
Sandiganbayan. In short, the issue has been pre-empted
by that court. To allow the respondent Committee to
conduct its own investigation of an issue already before
the Sandiganbayan would not only pose the possibility of
conflicting judgments between a legislative committee and
a judicial tribunal, but if the Committees judgment were
to be reached before that of the Sandiganbayan, the
possibility of its influence being made to bear on the
ultimate judgment of the Sandiganbayan can not be
discounted.
In fine, for the respondent Committee to probe
and inquire into the same justiciable controversy already
before the Sandiganbayan, would be an encroachment
into the exclusive domain of judicial jurisdiction that had
much earlier set in. (Bengzon, Jr. v. Senate Blue

Ribbon Committee, 203 SCRA 767, Nov. 20, 1991,

En Banc [Padilla])

55. Petitioners contention is that Republic Act No. 7716

(The Expanded-VAT Law) did not originate
exclusively in the House of Representatives as
required by Art. VI, Sec. 24 of the Constitution,
because it is in fact the result of the consolidation of

two distinct bills, H. No. 11197 and S. No. 1630. In

this connection, petitioners point out that although
Art. VI, Sec. 24 was adopted from the American
Federal Constitution, it is notable in two respects: the
verb shall originate is qualified in the Philippine
Constitution by the word exclusively and the phrase
as on other bills in the American version is omitted.
This means, according to them, that to be considered
as having originated in the House, Republic Act No.
7716 must retain the essence of H. No. 11197.
Held: This argument will not bear analysis. To
begin with, it is not the law - but the revenue bill - which
is required by the Constitution to originate exclusively in
the House of Representatives.
It is important to
emphasize this, because a bill originating in the House
may undergo such extensive changes in the Senate that
the result may be a rewriting of the whole. The possibility
of a third version by the conference committee will be
discussed later. At this point, what is important to note is
that, as a result of the Senate action, a distinct bill may be
produced. To insist that a revenue statute - and not only
the bill which initiated the legislative process culminating
in the enactment of the law - must substantially be the
same as the House bill would be to deny the Senate's
power not only to concur with amendments but also to
propose amendments.
It would be to violate the
coequality of legislative power of the two houses of
Congress and in fact make the House superior to the
Senate.
The contention that the constitutional design is to
limit the Senate's power in respect of revenue bills in
order to compensate for the grant to the Senate of the
treaty-ratifying power and thereby equalize its powers and
those of the House overlooks the fact that the powers
being compared are different. We are dealing here with
the legislative power which under the Constitution is
vested not only in any particular chamber but in the
Congress of the Philippines, consisting of a Senate and a
House of Representatives. The exercise of the treatyratifying power is not the exercise of legislative power. It
is the exercise of a check on the executive power. There
is, therefore, no justification for comparing the legislative
powers of the House and of the Senate on the basis of the
possession of a similar non-legislative power by the
Senate. The possession of a similar power by the U.S.
Senate has never been thought of as giving it more
legislative powers than the House of Representatives.
X x x Given, then, the power of the Senate to
propose amendments, the Senate can propose its own
version even with respect to bills which are required by
the Constitution to originate in the House.
It is insisted, however, that S. No. 1630 was
passed not in substitution of H. No. 11197 but of another
Senate bill (S. No. 1129) earlier filed and that what the
Senate did was merely to take (H. No. 11197) into
consideration in enacting S. No. 1630. There is really no
difference between the Senate preserving H. No. 11197
up to the enacting clause and then writing its own version
following the enacting clause (which, it would seem,
petitioners admit is an amendment by substitution), and,
on the other hand, separately presenting a bill of its own
on the same subject matter. In either case the result are
two bills on the same subject.
Indeed, what the Constitution simply means is
that the initiative for filing revenue, tariff, or tax bills, bills
authorizing an increase of the public debt, private bills and
31

bills of local application must come from the House of

Representatives on the theory that, elected as they are
from the districts, the members of the House can be
expected to be more sensitive to the local needs and
problems. On the other hand, the senators, who are
elected at large, are expected to approach the same
problems from the national perspective. Both views are
thereby made to bear on the enactment of such laws.
Nor does the Constitution prohibit the filing in the
Senate of a substitute bill in anticipation of its receipt of
the bill from the House, so long as action by the Senate as
a body is withheld pending receipt of the House bill. The
Court cannot, therefore, understand the alarm expressed
over the fact that on March 1, 1993, eight months before
the House passed H. No. 11197, S. No. 1129 had been
filed in the Senate. After all it does not appear that the
Senate ever considered it. It was only after the Senate
had received H. No. 11197 on November 23, 1993 that
the process of legislation in respect of it began with the
referral to the Senate Committee on Ways and Means of
H. No. 11197 and the submission by the Committee on
February 7, 1994 of S. No. 1630. For that matter, if the
question were simply the priority in the time of filing of
bills, the fact is that it was in the House that a bill (H. No.
253) to amend the VAT law was first filed on July 22,
1992. Several other bills had been filed in the House
before S. No. 1129 was filed in the Senate, and H. No.
11197 was only a substitute of those earlier bills.

(Tolentino v. Secretary of Finance, 235 SCRA 630,

661-663, Aug. 25, 1994, En Banc [Mendoza])
56. Discuss the objectives of Section 26(1), Article VI of
the 1987 Constitution, that "[e]very bill passed by the
Congress shall embrace only one subject which shall
be expressed in the title thereof."

Held: The objectives of Section 26(1), Article VI

of the 1987 Constitution are:
1) To prevent hodge-podge or log-rolling
legislation;
2) To prevent surprise or fraud upon the
legislature by means of provisions in bills of
which the titles gave no information, and
which might therefore be overlooked and
carelessly and unintentionally adopted; and
3) To fairly apprise the people, through such
publication of legislative proceedings as is
usually made, of the subjects of legislation
that are being considered, in order that they
may have opportunity of being heard thereon
by petition or otherwise if they shall so desire.
Section 26(1) of Article VI of the 1987 Constitution is
sufficiently complied with where x x x the title is
comprehensive enough to embrace the general objective
it seeks to achieve, and if all the parts of the statute are
related and germane to the subject matter embodied in
the title or so long as the same are not inconsistent with
or foreign to the general subject and title. (Agripino A.

De Guzman, Jr., et al. v. COMELEC, G.R. No.

129118, July 19, 2000, en Banc [Purisima])

57. Section 44 of R.A. No. 8189 (The Voter's Registration

Act of 1996) which provides for automatic transfer to
a new station of any Election Officer who has already
served for more than four years in a particular city or
municipality was assailed for being violative of Section
26(1) of Article VI of the Constitution allegedly
because it has an isolated and different subject from

that of RA 8189 and that the same is not expressed in

the title of the law.
Should the challenge be
sustained?
Held: Section 44 of RA 8189 is not isolated
considering that it is related and germane to the subject
matter stated in the title of the law. The title of RA 8189
is "The Voter's Registration Act of 1996" with a subject
matter enunciated in the explanatory note as "AN ACT
PROVIDING FOR A GENERAL REGISTRATION OF VOTERS,
ADOPTING A SYSTEM OF CONTINUING REGISTRATION,
PRESCRIBING THE PROCEDURES THEREOF AND
AUTHORIZING THE APPROPRIATION OF FUNDS
THEREFOR."
Section 44, which provides for the
reassignment of election officers, is relevant to the subject
matter of registration as it seeks to ensure the integrity of
the registration process by providing guideline for the
COMELEC to follow in the reassignment of election
officers. It is not an alien provision but one which is
related to the conduct and procedure of continuing
registration of voters. In this regard, it bears stressing
that the Constitution does not require Congress to employ
in the title of an enactment, language of such precision as
to mirror, fully index or catalogue, all the contents and the
minute details therein. (Agripino A. De Guzman, Jr.,

et al. v. COMELEC, G.R. No. 129118, July 19, 2000,

En Banc [Purisima])
58. Do courts have the power to inquire into allegations
that, in enacting a law, a House of Congress failed to
comply with its own rules?

Held: The cases, both here and abroad, in

varying forms of expression, all deny to the courts the
power to inquire into allegations that, in enacting a law, a
House of Congress failed to comply with its own rules, in
the absence of showing that there was a violation of a
constitutional provision or the right of private individuals.
In Osmena v. Pendatun, it was held: At any rate, courts
have declared that the rules adopted by deliberative
bodies are subject to revocation, modification or waiver at
the pleasure of the body adopting them. And it has been
said that Parliamentary rules are merely procedural, and
with their observance, the courts have no concern. They
may be waived or disregarded by the legislative body.
Consequently, mere failure to conform to parliamentary
usage will not invalidate that action (taken by a
deliberative body) when the requisite number of members
have agreed to a particular measure.
It must be realized that each of the three
departments of our government has its separate sphere
which the others may not invade without upsetting the
delicate balance on which our constitutional order rests.
Due regard for the working of our system of government,
more than mere comity, compels reluctance on the part of
the courts to enter upon an inquiry into an alleged
violation of the rules of the House.
Courts must
accordingly decline the invitation to exercise their power.

(Arroyo v. De Venecia, 277 SCRA 268, Aug. 14,

1997 [Mendoza])

59. What is the Bicameral Conference Committee?

Discuss the nature of its function and its jurisdiction.
Held:
While it is true that a conference
committee is the mechanism for compromising differences
between the Senate and the House, it is not limited in its
jurisdiction to this question. Its broader function is
described thus:
32

A conference committee may deal generally with

the subject matter or it may be limited to resolving the
precise differences between the two houses. Even where
the conference committee is not by rule limited in its
jurisdiction, legislative custom severely limits the freedom
with which new subject matter can be inserted into the
conference bill. But occasionally a conference committee
produces unexpected results, results beyond its mandate.
These excursions occur even where the rules impose strict
limitations on conference committee jurisdiction. This is
symptomatic of the authoritarian power of conference
committee. (Philippine Judges Association v. Prado,

227 SCRA 703, Nov. 11, 1993, En Banc [Cruz])

60. Discuss the Enrolled Bill Doctrine.

Held:
Under the enrolled bill doctrine, the
signing of H. Bill No. 7189 by the Speaker of the House
and the President of the Senate and the certification by
the secretaries of both Houses of Congress that it was
passed on November 21, 1996 are conclusive of its due
enactment. x x x To be sure, there is no claim either
here or in the decision in the EVAT cases (Tolentino v.
Secretary of Finance) that the enrolled bill embodies a
conclusive presumption. In one case (Astorga v. Villegas)
we went behind an enrolled bill and consulted the
Journal to determine whether certain provisions of a
statute had been approved by the Senate.
But, where as here there is no evidence to the
contrary, this Court will respect the certification of the
presiding officers of both Houses that a bill has been duly
passed. Under this rule, this Court has refused to
determine claims that the three-fourths vote needed to
pass a proposed amendment to the Constitution had not
been obtained, because a duly authenticated bill or
resolution imports absolute verity and is binding on the
courts. x x x
This Court has refused to even look into
allegations that the enrolled bill sent to the President
contained provisions which had been surreptitiously
inserted in the conference committee x x x. (Tolentino v.

Secretary of Finance)

It has refused to look into charges that an

amendment was made upon the last reading of a bill in
violation of Art. VI, Sec. 26(2) of the Constitution that
upon the last reading of a bill, no amendment shall be
allowed. (Philippine Judges Assn v. Prado)
In other cases, this Court has denied claims that
the tenor of a bill was otherwise than as certified by the
presiding officers of both Houses of Congress.
The enrolled bill doctrine, as a rule of evidence, is
well-established. It is cited with approval by text writers
here and abroad. The enrolled bill rule rests on the
following considerations:
X x x As the President has no authority to
approve a bill not passed by Congress, an enrolled
Act in the custody of the Secretary of State, and
having the official attestations of the Speaker of
the House of Representatives, of the President of
the Senate, and of the President of the United
States, carries, on its face, a solemn assurance by
the legislative and executive departments of the
government, charged, respectively, with the duty
of enacting and executing the laws, that it was
passed by Congress. The respect due to coequal

and independent departments requires the judicial

department to act upon that assurance, and to
accept, as having passed Congress, all bills
authenticated in the manner stated; leaving the
court to determine, when the question properly
arises, whether the Act, so authenticated, is in
conformity with the Constitution. (Marshall Field

& Co. v. Clark, 143 U.S. 649, 672, 36 L. Ed. 294,

303 [1891])

To overrule the doctrine now, x x x is to repudiate

the massive teaching of our cases and overthrow an
established rule of evidence. (Arroyo v. De Venecia,

277 SCRA 268, Aug. 14, 1997 [Mendoza])

61. When should the Legislative Journal be regarded as

conclusive upon the courts, and why?
Held: The Journal is regarded as conclusive with
respect to matters that are required by the Constitution to
be recorded therein. With respect to other matters, in the
absence of evidence to the contrary, the Journals have
also been accorded conclusive effects. Thus, in United
States v. Pons, this Court spoke of the imperatives of
public policy for regarding the Journals as public
memorials of the most permanent character, thus: They
should be public, because all are required to conform to
them; they should be permanent, that rights acquired
today upon the faith of what has been declared to be law
shall not be destroyed tomorrow, or at some remote
period of time, by facts resting only in the memory of
individuals. (Arroyo v. De Venecia, 277 SCRA 268,

298-299, Aug. 14, 1997 [Mendoza])

62. What matters are required to be entered on the

Journal?

Held:
1) The yeas and nays on the third and final
reading of a bill (Art. VI, Sec. 26[2]);
2) The yeas and nays on any question, at the
request of one-fifth of the members present

(Id., Sec. 16[4]);

3) The yeas and nays upon repassing a bill over

the Presidents veto (Id., Sec. 27[1]); and
4) The Presidents objection to a bill he had
vetoed (Id.).

(Arroyo v. De Venecia, 277 SCRA 268, 298, Aug. 14,

1997 [Mendoza])
63. What are the limitations on the veto power of the
President?
Held: The act of the Executive in vetoing the
particular provisions is an exercise of a constitutionally
vested power. But even as the Constitution grants the
power, it also provides limitations to its exercise. The
veto power is not absolute.
Xxx
The OSG is correct when it states that the
Executive must veto a bill in its entirety or not at all. He
or she cannot act like an editor crossing out specific lines,
provisions, or paragraphs in a bill that he or she dislikes.
In the exercise of the veto power, it is generally all or
nothing.
However, when it comes to appropriation,
revenue or tariff bills, the Administration needs the money
to run the machinery of government and it can not veto
the entire bill even if it may contain objectionable
features.
The President is, therefore, compelled to
approve into law the entire bill, including its undesirable
parts. It is for this reason that the Constitution has wisely
33

provided the item veto power to avoid inexpedient riders

being attached to an indispensable appropriation or
revenue measure.
The Constitution provides that only a particular
item or items may be vetoed. The power to disapprove
any item or items in an appropriate bill does not grant the
authority to veto a part of an item and to approve the
remaining portion of the same item. (Bengzon v.

Drilon, 208 SCRA 133, 143-145, April 15, 1992, En

Banc [Gutierrez])
64. Distinguish an item from a provision in relation to
the veto power of the President.

Held: The terms item and provision in budgetary

legislation and practice are concededly different. An item
in a bill refers to the particulars, the details, the distinct
and severable parts x x x of the bill. It is an indivisible
sum of money dedicated to a stated purpose . The United
States Supreme Court, in the case of Bengzon v. Secretary

of Justice (299 U.S. 410, 414, 57 Ct 252, 81 L. Ed., 312)

declared that an item of an appropriation bill obviously
means an item which in itself is a specific appropriation of
money, not some general provision of law, which happens
to be put into an appropriation bill. (Bengzon v. Drilon,
208 SCRA 133, 143-145, April 15, 1992, En Banc
[Gutierrez])
65. May the President veto a law? May she veto a
decision of the SC which has long become final and
executory?
Held:
We need no lengthy justifications or
citations of authorities to declare that no President may
veto the provisions of a law enacted thirty-five (35) years
before his or her term of office.
Neither may the
President set aside or reverse a final and executory
judgment of this Court through the exercise of the veto
power. (Bengzon v. Drilon, 208 SCRA 133, 143-145,

April 15, 1992, En Banc [Gutierrez])

66. A disqualification case was filed against a candidate

for Congressman before the election with the
COMELEC.
The latter failed to resolve that
disqualification case before the election and that
candidate won, although he was not yet proclaimed
because of that pending disqualification case. Is the
COMELEC now ousted of jurisdiction to resolve the
pending disqualification case and, therefore, should
dismiss the case, considering that jurisdiction is now
vested with the House of Representatives Electoral
Tribunal (HRET)?
Held: 1. [P]etitioner vigorously contends that
after the May 8, 1995 elections, the COMELEC lost its
jurisdiction over the question of petitioners qualifications
to run for member of the House of Representatives. He
claims that jurisdiction over the petition for disqualification
is exclusively lodged with the House of Representatives
Electoral Tribunal (HRET).
Given the yet-unresolved
question of jurisdiction, petitioner avers that the COMELEC
committed serious error and grave abuse of discretion in
directing the suspension of his proclamation as the
winning candidate in the Second Congressional District of
Makati City. We disagree.
Petitioner conveniently confuses the
between an unproclaimed candidate to the
Representatives and a member of the same.
the highest number of votes in an election

distinction
House of
Obtaining
does not

automatically vest the position in the winning candidate.

Section 17 of Article VI of the 1987 Constitution reads:
The Senate and the House of
Representatives shall have an Electoral Tribunal
which shall be the sole judge of all contests
relating to the election, returns and qualifications
of their respective Members.
Under the above-stated provision, the electoral
tribunal clearly assumes jurisdiction over all contests
relative to the election, returns and qualifications of
candidates for either the Senate or the House only when
the latter become members of either the Senate or the
House of Representatives. A candidate who has not been
proclaimed and who has not taken his oath of office
cannot be said to be a member of the House of
Representatives subject to Section 17 of Article VI of the
Constitution.
While the proclamation of a winning
candidate in an election is ministerial, B.P. Blg. 881 in
conjunction with Sec. 6 of R.A. 6646 allows suspension of
proclamation under circumstances mentioned therein.
Thus, petitioners contention that after the conduct of the
election and (petitioner) has been established the winner
of the electoral exercise from the moment of election, the
COMELEC is automatically divested of authority to pass
upon the question of qualification finds no basis in law,
because even after the elections the COMELEC is
empowered by Section 6 (in relation to Section 7) of R.A.
6646 to continue to hear and decide questions relating to
qualifications of candidates. (Aquino v. COMELEC, 248

SCRA 400, 417-419, Sept. 18, 1995, En Banc

[Kapunan, J.])
2. As to the House of Representatives Electoral
Tribunals supposed assumption of jurisdiction over the
issue of petitioners qualifications after the May 8, 1995
elections, suffice it to say that HRETs jurisdiction as the
sole judge of all contests relating to the elections, returns
and qualifications of members of Congress begins only
after a candidate has become a member of the House of
Representatives (Art. VI, Sec. 17, 1987 Constitution).
Petitioner not being a member of the House of
Representatives, it is obvious that the HRET at this point
has no jurisdiction over the question. (Romualdez-

Marcos v. COMELEC, 248 SCRA 300, 340-341, Sept.

18, 1995, En Banc [Kapunan, J.])
67. Will the rule be the same if that candidate wins and
was proclaimed winner and already assumed office as
Congressman?
Held: While the COMELEC is vested with the
power to declare valid or invalid a certificate of candidacy,
its refusal to exercise that power following the
proclamation and assumption of the position by Farinas is
a recognition of the jurisdictional boundaries separating
the COMELEC and the Electoral Tribunal of the House of
Representatives (HRET). Under Article VI, Section 17 of
the Constitution, the HRET has sole and exclusive
jurisdiction over all contests relative to the election,
returns, and qualifications of members of the House of
Representatives. Thus, once a winning candidate has
been proclaimed, taken his oath, and assumed office as a
member of the House of Representatives, COMELECs
jurisdiction over election contests relating to his election,
returns, and qualifications ends, and the HRETs own
jurisdiction begins. Thus, the COMELECs decision to
discontinue exercising jurisdiction over the case is
justifiable, in deference to the HRETs own jurisdiction and
34

functions. (Guerrero v. COMELEC, 336 SCRA 458,

July 26, 2000, En Banc [Quisumbing])

68. Petitioner further argues that the HRET assumes

jurisdiction only if there is a valid proclamation of the

winning candidate. He contends that if a candidate
fails to satisfy the statutory requirements to qualify
him as a candidate, his subsequent proclamation is
void ab initio. Where the proclamation is null and
void, there is no proclamation at all and the mere
assumption of office by the proclaimed candidate does
not deprive the COMELEC at all of its power to declare
such nullity, according to petitioner.

Held: But x x x in an electoral contest where the

validity of the proclamation of a winning candidate who
has taken his oath of office and assumed his post as
congressman is raised, that issue is best addressed to the
HRET. The reason for this ruling is self-evident, for it
avoids duplicity of proceedings and a clash of jurisdiction
between constitutional bodies, with due regard to the
peoples mandate. (Guerrero v. COMELEC, 336 SCRA

458, July 26, 2000, En Banc [Quisumbing])

69. Is there an appeal from a decision of the Senate or

House of Representatives Electoral Tribunal? What
then is the remedy, if any?
Held: The Constitution mandates that the House
of Representatives Electoral Tribunal and the Senate
Electoral Tribunal shall each, respectively, be the sole
judge of all contests relating to the election, returns and
qualifications of their respective members.
The Court has stressed that x x x so long as the
Constitution grants the HRET the power to be the sole
judge of all contests relating to the election, returns and
qualifications
of
members
of
the
House
of
Representatives, any final action taken by the HRET on a
matter within its jurisdiction shall, as a rule, not be
reviewed by this Court. The power granted to the
Electoral Tribunal x x x excludes the exercise of any
authority on the part of this Court that would in any wise
restrict it or curtail it or even affect the same.
The Court did recognize, of course, its power of
judicial review in exceptional cases. In Robles v. HRET,
the Court has explained that while the judgments of the
Tribunal are beyond judicial interference, the Court may
do so, however, but only in the exercise of this Courts
so-called extraordinary jurisdiction x x x upon a
determination that the Tribunals decision or resolution
was rendered without or in excess of its jurisdiction, or
with grave abuse of discretion or paraphrasing Morrero v.
Bocar (66 Phil. 429), upon a clear showing of such
arbitrary and improvident use by the Tribunal of its power
as constitutes a denial of due process of law, or upon a
demonstration of a very clear unmitigated error,
manifestly constituting such grave abuse of discretion that
there has to be a remedy for such abuse.
The Court does not x x x venture into the perilous
area of correcting perceived errors of independent
branches of the Government; it comes in only when it has
to vindicate a denial of due process or correct an abuse of
discretion so grave or glaring that no less than the
Constitution itself calls for remedial action. (Libanan v.

HRET, 283 SCRA 520, Dec. 22, 1997 [Vitug])

70. Did former President Estrada resign as President or

should be considered resigned as of January 20, 2001
when President Gloria Macapagal Arroyo took her oath
as the 14th President of the Republic?
Held: Resignation x x x is a factual question and
its elements are beyond quibble: there must be an intent

to resign and the intent must be coupled by acts of

relinquishment. The validity of a resignation is not

governed by any formal requirement as to form. It can be

oral. It can be written. It can be express. It can be
implied. As long as the resignation is clear, it must be
given legal effect.
In the cases at bar, the facts show that petitioner
did not write any formal letter of resignation before he
evacuated Malacanang Palace in the afternoon of January
20, 2001 after the oath-taking of respondent Arroyo.
Consequently, whether or not petitioner resigned has to
be determined from his acts and omissions before, during
and after January 20, 2001 or by the totality of prior,

contemporaneous and posterior facts and circumstantial

evidence bearing a material relevance on the issue.

Using this totality test, we hold that petitioner

resigned as President.
Xxx

In sum, we hold that the resignation of the

petitioner cannot be doubted. It was confirmed by his
leaving Malacanang. In the press release containing his
final statement, (1) he acknowledged the oath-taking of
the respondent as President of the Republic albeit with
reservation about its legality; (2) he emphasized he was
leaving the Palace, the seat of the presidency, for the
sake of peace and in order to begin the healing process of
our nation. He did not say he was leaving the Palace due

to any kind of inability and that he was going to reassume the presidency as soon as the disability
disappears; (3) he expressed his gratitude to the people
for the opportunity to serve them. Without doubt, he was
referring to the past opportunity given him to serve the
people as President; (4) he assured that he will not shirk
from any future challenge that may come ahead on the
same service of our country. Petitioners reference is to a

future challenge after occupying the office of the

president which he has given up; and (5) he called on his

supporters to join him in the promotion of a constructive

national spirit of reconciliation and solidarity. Certainly,

the national spirit of reconciliation and solidarity could not

be attained if he did not give up the presidency. The
press release was petitioners valedictory, his final act of
farewell. His presidency is now in the past tense.

(Estrada v. Desierto, G.R. Nos. 146710-15, March

2, 2001, En Banc [Puno])
71. Discuss our legal history on executive immunity.
Held: The doctrine of executive immunity in this
jurisdiction emerged as a case law. In the 1910 case of
Forbes, etc. v. Chuoco Tiaco and Crossfield, the
respondent Tiaco, a Chinese citizen, sued petitioner W.
Cameron Forbes, Governor-General of the Philippine
Islands, J.E. Harding and C.R. Trowbridge, Chief of Police
and Chief of the Secret Service of the City of Manila,
respectively, for damages for allegedly conspiring to
deport him to China. In granting a writ of prohibition, this
Court, speaking thru Mr. Justice Johnson, held:

The Executive Department

35

The principle of nonliability x x x does

not mean that the judiciary has no authority to touch the
acts of the Governor-General; that he may, under cover
of his office, do what he will, unimpeded and
unrestrained. Such a construction would mean that
tyranny, under the guise of the execution of the law,
could walk defiantly abroad, destroying rights of person
and of property, wholly free from interference of courts
or legislatures. This does not mean, either, that a person
injured by the executive authority by an act unjustifiable
under the law has no remedy, but must submit in
silence. On the contrary, it means, simply, that the
Governor-General, like the judges of the courts and the
members of the Legislature, may not be personally
mulcted in civil damages for the consequences of an act
executed in the performance of his official duties. The
judiciary has full power to, and will, when the matter is
properly presented to it and the occasion justly warrants
it, declare an act of the Governor-General illegal and void
and place as nearly as possible in status quo any person
who has been deprived his liberty or his property by such
act. This remedy is assured to every person, however
humble or of whatever country, when his personal or
property rights have been invaded, even by the highest
authority of the state. The thing which the judiciary can
not do is mulct the Governor-General personally in
damages which result from the performance of his official
duty, any more than it can a member of the Philippine
Commission or the Philippine Assembly. Public policy
forbids it.
Neither does this principle of nonliability
mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform
as such official. On the contrary, it clearly appears from
the discussion heretofore had, particularly that portion
which touched the liability of judges and drew an
analogy between such liability and that of the GovernorGeneral, that the latter is liable when he acts in a case so
plainly outside of his power and authority that he can not
be said to have exercised discretion in determining
whether or not he had the right to act. What is held
here is that he will be protected from personal liability for
damages not only when he acts within his authority, but
also when he is without authority, provided he actually
used discretion and judgment, that is, the judicial faculty,
in determining whether he had authority to act or not.
In other words, he is entitled to protection in determining
the question of his authority. If he decide wrongly, he is
still protected provided the question of his authority was
one over which two men, reasonably qualified for that
position, might honestly differ; but he is not protected if
the lack of authority to act is so plain that two such men
could not honestly differ over its determination. In such
case, he acts, not as Governor-General but as a private
individual, and, as such, must answer for the
consequences of his act.
Mr. Justice Johnson underscored the consequences if the
Chief Executive was not granted immunity from suit, viz:
x x x. Action upon important matters of state delayed;
the time and substance of the chief executive spent in
wrangling litigation; disrespect engendered for the person
of one of the highest officials of the State and for the
office he occupies; a tendency to unrest and disorder;
resulting in a way, in a distrust as to the integrity of
government itself.
Our 1935 Constitution took effect but it did not
contain any specific provision on executive immunity.
Then came the tumult of the martial law years under the

late President Ferdinand E. Marcos and the 1973

Constitution was born. In 1981, it was amended and one
of the amendments involved executive immunity . Section
17, Article VII stated:
The President shall be immune from suit
during his tenure. Thereafter, no suit whatsoever
shall lie for official acts done by him or by others
pursuant to his specific orders during his tenure.
The immunities herein provided shall
apply to the incumbent President referred to in
Article XVII of this Constitution.
In his second Vicente G. Sinco Professorial Chair Lecture
entitled, Presidential Immunity And All The Kings Men:
The Law Of Privilege As A Defense To Actions For
Damages, (62 Phil. L.J. 113 [1987]) petitioners learned
counsel, former Dean of the UP College of Law, Atty.
Pacifico Agabin, brightened the modifications effected by
this constitutional amendment on the existing law on
executive privilege. To quote his disquisition:
In the Philippines though, we sought to
do the American one better by enlarging and fortifying the
absolute immunity concept. First, we extended it to shield
the President not only from civil claims but also from
criminal cases and other claims. Second, we enlarged its
scope so that it would cover even acts of the President
outside the scope of official duties.
And third, we
broadened its coverage so as to include not only the
President but also other persons, be they government
officials or private individuals, who acted upon orders of
the President. It can be said that at that point most of us
were suffering from AIDS (or absolute immunity defense
syndrome).

The Opposition in the then Batasang Pambansa sought

the repeal of this Marcosian concept of executive
immunity in the 1973 Constitution. The move was led by

then Member of Parliament, now Secretary of Finance,

Alberto Romulo, who argued that the after incumbency
immunity granted to President Marcos violated the
principle that a public office is a public trust.
He
denounced the immunity as a return to the anachronism
the king can do no wrong. The effort failed.
The 1973 Constitution ceased to exist when
President Marcos was ousted from office by the People
Power revolution in 1986. When the 1987 Constitution
was crafted, its framers did not reenact the executive
immunity provision of the 1973 Constitution. x x x

(Estrada v. Desierto, G.R. Nos. 146710-15, March

2, 2001, en Banc [Puno])
72. Can former President Estrada still be prosecuted
criminally considering that he was not convicted in the
impeachment proceedings against him?
Held: We reject his argument that he cannot be
prosecuted for the reason that he must first be convicted
in the impeachment proceedings. The impeachment trial
of petitioner Estrada was aborted by the walkout of the
prosecutors and by the events that led to his loss of the
presidency. Indeed, on February 7, 2001, the Senate
passed Senate Resolution No. 83 Recognizing that the
Impeachment Court is Functus Officio.
Since the
Impeachment Court is now functus officio, it is untenable
for petitioner to demand that he should first be impeached
and then convicted before he can be prosecuted. The
plea if granted, would put a perpetual bar against his
36

prosecution. Such a submission has nothing to commend

itself for it will place him in a better situation than a nonsitting President who has not been subjected to
impeachment proceedings and yet can be the object of a
criminal prosecution. To be sure, the debates in the
Constitutional Commission make it clear that when
impeachment proceedings have become moot due to the
resignation of the President, the proper criminal and civil
cases may already be filed against him x x x.

and the proclamation of the winning candidates for

president and vice-president for the entire nation must
remain in the hands of Congress.
(Makalintal v.

This is in accord with our ruling in In Re:

Saturnino Bermudez that incumbent Presidents are

Held: Petitioners Tecson, et al. x x x and Velez x

x x invoke the provisions of Article VII, Section 4,
paragraph 7, of the 1987 Constitution in assailing the
jurisdiction of the COMELEC when it took cognizance of
SPA No. 04-003 and in urging the Supreme Court to
instead take on the petitions they directly instituted before
it. X x x

immune from suit or from being brought to court during

the period of their incumbency and tenure but not
beyond. Considering the peculiar circumstance that the
impeachment process against the petitioner has been
aborted and thereafter he lost the presidency, petitioner
Estrada cannot demand as a condition sine qua non to his
criminal prosecution before the Ombudsman that he be
convicted in the impeachment proceedings. (Estrada v.

Desierto, G.R. Nos. 146710-15, Mar. 2, 2001, En

Banc [Puno])
73. Is Section 18.5 of R.A. No. 9189 in relation to Section
4 of the same Act in contravention of Section 4,
Article VII of the Constitution?
Held: Section 4 of R.A. No. 9189 provides that
the overseas absentee voter may vote for president, vicepresident, senators and party-list representatives.

Xxx
Petitioner claims that the provision of Section 18.5
of R.A. No. 9189 empowering the COMELEC to order the
proclamation of winning candidates insofar as it affects
the canvass of votes and proclamation of winning
candidates for president and vice-president, is
unconstitutional because it violates the following
provisions of paragraph 4, Section 4 of Article VII of the
Constitution x x x which gives to Congress the duty to
canvass the votes and proclaim the winning candidates for
president and vice-president.
Xxx
Indeed, the phrase, proclamation of winning
candidates, in Section 18.5 of R.A. No. 9189 is far too
sweeping that it necessarily includes the proclamation of
the winning candidates for the presidency and the vicepresidency.
Section 18.5 of R.A. No. 9189 appears to be
repugnant to Section 4, Article VIII of the Constitution
only insofar as said Section totally disregarded the
authority given to Congress by the Constitution to
proclaim the winning candidates for the positions of
president and vice-president.
In addition, the Court notes that Section 18.4 of
the law x x x clashes with paragraph 4, Section 4, Article
VII of the Constitution which provides that the returns of
every election for President and Vice-President shall be
certified by the board of canvassers to Congress.
Congress should not have allowed the COMELEC
to usurp a power that constitutionally belongs to it or x x
x to encroach on the power of Congress to canvass the
votes for president and vice-president and the power to
proclaim the winners for the said positions.
The
provisions of the Constitution as the fundamental law of
the land should be read as part of The Overseas Absentee
Voting Act of 2003 and hence, the canvassing of the votes

COMELEC, G.R. No. 157013, July 10, 2003, En Banc

[Austria-Martinez])
74. Discuss the jurisdiction of the Supreme Court to hear
and decide cases involving the election, returns and
qualifications of the President and Vice-President.

Xxx
Ordinary usage would characterize a contest in
reference to a post-election scenario.
Election
contests consist of either an election protest or a quo
warranto which, although two distinct remedies, would
have one objective in view, i.e., to dislodge the winning
candidate from office. A perusal of the phraseology in
Rule 12, Rule 13, and Rule 14 of the Rules of the
Presidential Electoral Tribunal, promulgated by the
Supreme Court en banc on 18 April 1992, would support
this premise x x x.
The rules categorically speak of the jurisdiction of
the tribunal over contests relating to the election, returns
and qualifications of the President or Vice-President of
the Philippines, and not of candidates for President or
Vice-President. A quo warranto proceeding is generally
defined as being an action against a person who usurps,
intrudes into, or unlawfully holds or exercises a public
office. In such context, the election contest can only
contemplate a post-election scenario. In Rule 14, only a
registered candidate who would have received either the
second or third highest number of votes could file an
election protest. This rule again presupposes a postelection scenario.
It is fair to conclude that the jurisdiction of the
Supreme Court, defined by Section 4, paragraph 7, of the
1987 Constitution, would not include cases directly
brought before it questioning the qualifications of a
candidate for the presidency or vice-presidency before the
elections are held.
Accordingly, G.R. No. 161434 x x x and G.R. No.
161634 x x x would have to be dismissed for want of
jurisdiction.
(Maria Jeanette Tecson, et al. v.

COMELEC, G.R. No. 161434, March 3, 2004, En

Banc [Vitug])
75. State the reason why not all appointments made by
the President under the 1987 Constitution will require
confirmation by the Commission on Appointments.

Held:
The aforecited provision (Section 16,
Article VII) of the Constitution has been the subject of
several cases on the issue of the restrictive function of the
Commission on Appointments with respect to the
appointing power of the President. This Court touched
upon the historical antecedent of the said provision in the
case of Sarmiento III v. Mison in which it was ratiocinated
upon that Section 16 of Article VII of the 1987
Constitution requiring confirmation by the Commission on
37

Appointments of certain appointments issued by the

President contemplates a system of checks and balances
between the executive and legislative branches of
government. Experience showed that when almost all
presidential appointments required the consent of the
Commission on Appointments, as was the case under the
1935 Constitution, the commission became a venue of
horse trading and similar malpractices. On the other
hand, placing absolute power to make appointments in
the President with hardly any check by the legislature, as
what happened under the 1973 Constitution, leads to
abuse of such power. Thus was perceived the need to
establish a middle ground between the 1935 and 1973
Constitutions. The framers of the 1987 Constitution
deemed it imperative to subject certain high positions in
the government to the power of confirmation of the
Commission on Appointments and to allow other positions
within the exclusive appointing power of the President.

(Manalo v. Sistoza, 312 SCRA 239, Aug. 11, 1999,

En Banc [Purisima])

76. Who are the officers to be appointed by the President

under Section 16, Article VII of the 1987 Constitution
whose appointments shall require confirmation by the
Commission on Appointments, and those whose
appointments shall no longer require such
confirmation?
Held: Conformably, as consistently interpreted
and ruled in the leading case of Sarmiento III v. Mison,
and in the subsequent cases of Bautista v. Salonga,
Quintos-Deles v. Constitutional Commission, and Calderon
v. Carale, under Section 16, Article VII, of the
Constitution, there are four groups of officers of the
government to be appointed by the President:
First, the heads of the executive departments,
ambassadors, other public ministers and consuls, officers
of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are
vested in him in this Constitution;
Second, all other officers of the Government
whose appointments are not otherwise provided
for by law;
Third, those whom the President may be
authorized by law to appoint;
Fourth, officers lower in rank whose
appointments the Congress may by law vest in
the President alone.
It is well-settled that only presidential appointees
belonging to the first group require the confirmation by
the Commission on Appointments. (Manalo v. Sistoza,

312 SCRA 239, Aug. 11, 1999, En Banc [Purisima])

77. Under Republic Act 6975 (the DILG Act of 1990), the
Director General, Deputy Director General, and other
top officials of the Philippine National Police (PNP)
shall be appointed by the President and their
appointments shall require confirmation by the
Commission on Appointments. Respondent Sistoza
was appointed Director General of the PNP but he
refused to submit his appointment papers to the
Commission on Appointments for confirmation
contending that his appointment shall no longer
require confirmation despite the express provision of
the law requiring such confirmation. Should his
contention be upheld?

Held: It is well-settled that only presidential

appointees belonging to the first group (enumerated
under the first sentence of Section 16, Article VII of the
1987 Constitution) require the confirmation by the
Commission on Appointments.
The appointments of
respondent officers who are not within the first category,
need not be confirmed by the Commission on
Appointments. As held in the case of Tarrosa v. Singson,
Congress cannot by law expand the power of confirmation
of the Commission on Appointments and require
confirmation of appointments of other government
officials not mentioned in the first sentence of Section 16
of Article VII of the 1987 Constitution.
Consequently, unconstitutional are Sections 26
and 31 of Republic Act 6975 which empower the
Commission
on
Appointments
to
confirm
the
appointments of public officials whose appointments are
not required by the Constitution to be confirmed.

(Manalo v. Sistoza, 312 SCRA 239, Aug. 11, 1999,

En Banc [Purisima])

78. Will it be correct to argue that since the Philippine

National Police is akin to the Armed Forces of the
Philippines, therefore, the appointments of police
officers whose rank is equal to that of colonel or naval
captain will require confirmation by the Commission
on Appointments?
Held: This contention is x x x untenable. The
Philippine National Police is separate and distinct from the
Armed Forces of the Philippines. The Constitution, no
less, sets forth the distinction. Under Section 4 of Article
XVI of the 1987 Constitution,
The Armed Forces of the Philippines
shall be composed of a citizen armed force
which shall undergo military training and
service, as may be provided by law. It shall
keep a regular force necessary for the
security of the State.
On the other hand, Section 6 of the same Article
of the Constitution ordains that:
The State shall establish and
maintain one police force, which shall be
national in scope and civilian in character to
be administered and controlled by a national
police commission. The authority of local
executives over the police units in their
jurisdiction shall be provided by law.
To so distinguish the police force from the armed
forces, Congress enacted Republic Act 6975 x x x.
Thereunder, the police force is different from and
independent of the armed forces and the ranks in the
military are not similar to those in the Philippine National
Police. Thus, directors and chief superintendents of the
PNP x x x do not fall under the first category of
presidential appointees requiring confirmation by the
Commission on Appointments. (Manalo v. Sistoza, 312

SCRA 239, Aug. 11, 1999, En Banc [Purisima])

79. Discuss the nature of an ad-interim appointment. Is it

temporary and, therefore, can be withdrawn or
revoked by the President at her pleasure?

38

Held: An ad interim appointment is a permanent

appointment because it takes effect immediately and can
no longer be withdrawn by the President once the
appointee has qualified into office. The fact that it is
subject to confirmation by the Commission on
Appointments does not alter its permanent character.
The Constitution itself makes an ad interim appointment
permanent in character by making it effective until
disapproved by the Commission on Appointments or until
the next adjournment of Congress.
The second
paragraph of Section 16, Article VII of the Constitution
provides as follows:
The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until
disapproval by the Commission on Appointments
or until the next adjournment of the Congress.
Thus, the ad interim appointment remains effective until
such disapproval or next adjournment, signifying that it
can no longer be withdrawn or revoked by the President.
The fear that the President can withdraw or revoke at any
time and for any reason an ad interim appointment is
utterly without basis.
More than half a century ago, this Court had
already ruled that an ad interim appointment is
permanent in character. In Summers v. Ozaeta, decided
on October 25, 1948, we held that:
x x x an ad interim appointment is one made in
pursuance of paragraph (4), Section 10, Article VII of the
Constitution, which provides that the President shall have
the power to make appointments during the recess of the
Congress, but such appointments shall be effective only
until disapproval by the Commission on Appointments or
until the next adjournment of the Congress. It is an

appointment permanent in nature, and the circumstance

that it is subject to confirmation by the Commission on
Appointments does not alter its permanent character. An
ad interim appointment is disapproved certainly for a
reason other than that its provisional period has expired.
Said appointment is of course distinguishable from an
acting appointment which is merely temporary, good
until another permanent appointment is issued.

The Constitution imposes no condition on the

effectivity of an ad interim appointment, and thus an ad
interim appointment takes effect immediately.
The
appointee can at once assume office and exercise, as a de
jure officer, all the powers pertaining to the office. In
Pacete v. Secretary of the Commission on Appointments ,
this Court elaborated on the nature of an ad interim
appointment as follows:
A distinction is thus made between the exercise
of such presidential prerogative requiring confirmation by
the Commission on Appointments when Congress is in
session and when it is in recess. In the former, the
President nominates, and only upon the consent of the
Commission on Appointments may the person thus named
assume office. It is not so with reference to ad interim

appointments. It takes effect at once. The individual

chosen may thus qualify and perform his function without
loss of time. His title to such office is complete. In the
language of the Constitution, the appointment is effective
until disapproval by the Commission on Appointments or
until the next adjournment of the Congress.

Petitioner cites Blacks Law Dictionary which

defines the term ad interim to mean in the meantime
or for the time being. Hence, petitioner argues that an
ad interim appointment is undoubtedly temporary in
character. This argument is not new and was answered
by this Court in Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court, where we explained that:
x x x From the arguments, it is easy to see why the
petitioner should experience difficulty in understanding
the situation. Private respondent had been extended
several ad interim appointments which petitioner
mistakenly understands as appointments temporary in
nature. Perhaps, it is the literal translation of the word
ad interim which creates such belief. The term is
defined by Black to mean in the meantime or for the
time being. Thus, an officer ad interim is one appointed
to fill a vacancy, or to discharge the duties of the office
during the absence or temporary incapacity of its regular
incumbent (Blacks Law Dictionary, Revised Fourth
Edition, 1978). But such is not the meaning nor the use
intended in the context of Philippine law. In referring to
Dr. Estebans appointments, the term is not descriptive of
the nature of the appointments given to him. Rather, it

is used to denote the manner in which said appointments

were made, that is, done by the President of the
Pamantasan in the meantime, while the Board of
Regents, which is originally vested by the University
Charter with the power of appointment, is unable to act.
X x x.

Thus, the term ad interim appointment, as used

in letters of appointment signed by the President, means a
permanent appointment made by the President in the
meantime that Congress is in recess. It does not mean a
temporary appointment that can be withdrawn or revoked
at any time. The term, although not found in the text of
the Constitution, has acquired a definite legal meaning
under Philippine jurisprudence. The Court had again
occasion to explain the nature of an ad interim
appointment in the more recent case of Marohombsar v.
Court of Appeals, where the Court stated:
We have already mentioned that an ad interim
appointment is not descriptive of the nature of the
appointment, that is, it is not indicative of whether the
appointment is temporary or in an acting capacity,
rather it denotes the manner in which the appointment
was made. In the instant case, the appointment
extended to private respondent by then MSU President
Alonto, Jr. was issued without condition nor limitation as
to tenure.
The permanent status of private
respondents appointment as Executive Assistant II was
recognized and attested to by the Civil Service
Commission Regional Office No. 12.
Petitioners

submission that private respondents ad interim

appointment is synonymous with a temporary
appointment which could be validly terminated at any
time is clearly untenable. Ad interim appointments are
permanent appointment but their terms are only until
the Board disapproves them.

An ad interim appointee who has qualified and

assumed office becomes at that moment a government
employee and therefore part of the civil service. He
enjoys the constitutional protection that [n]o officer or
employee in the civil service shall be removed or
suspended except for cause provided by law. (Section
2[3], Article IX-B of the Constitution) Thus, an ad interim
appointment becomes complete and irrevocable once the
appointee has qualified into office. The withdrawal or
39

revocation of an ad interim appointment is possible only if

it is communicated to the appointee before the moment
he qualifies, and any withdrawal or revocation thereafter
is tantamount to removal from office. Once an appointee
has qualified, he acquires a legal right to the office which
is protected not only by statute but also by the
Constitution. He can only be removed for cause, after
notice and hearing, consistent with the requirements of
due process. (Matibag v. Benipayo, 380 SCRA 49,

April 2, 2002, En Banc [Carpio])

80. How is an ad interim appointment terminated?

Held:
An ad interim appointment can be
terminated for two causes specified in the Constitution.
The first cause is the disapproval of his ad interim
appointment by the Commission on Appointments. The
second cause is the adjournment of Congress without the
Commission on Appointments acting on his appointment.
These two causes are resolutory conditions expressly
imposed by the Constitution on all ad interim
appointments. These resolutory conditions constitute, in
effect, a Sword of Damocles over the heads of ad interim
appointees. No one, however, can complain because it is
the Constitution itself that places the Sword of Damocles
over the heads of the ad interim appointees. (Matibag v.

the COMELEC requires the Commission on Appointments

to first confirm ad interim appointees before the
appointees can assume office will negate the Presidents
power to make ad interim appointments. This is contrary
to the rule on statutory construction to give meaning and
effect to every provision of the law. It will also run
counter to the clear intent of the framers of the
Constitution.
Xxx
The Presidents power to extend ad interim
appointments may indeed briefly put the appointee at the
mercy of both the appointing and confirming powers.
This situation, however, in only for a short period from
the time of issuance of the ad interim appointment until
the Commission on Appointments gives or withholds its
consent. The Constitution itself sanctions this situation,
as a trade-off against the evil of disruptions in vital
government services. This is also part of the check-andbalance under the separation of powers, as a trade-off
against the evil of granting the President absolute and
sole power to appoint. The Constitution has wisely
subjected the Presidents appointing power to the
checking power of the legislature.

81. How is an ad interim appointment distinguished from

an appointment or designation in an acting or
temporary capacity?

This situation, however, does not compromise the

independence of the COMELEC as a constitutional body.
The vacancies in the COMELEC are precisely staggered to
insure that the majority of its members hold confirmed
appointments, and no one President will appoint all the
COMELEC members. x x x The special constitutional
safeguards that insure the independence of the COMELEC
remain in place (See Sections, 3, 4, 5 and 6, Article IX-A

Held:
While an ad interim appointment is
permanent and irrevocable except as provided by law, an
appointment or designation in a temporary or acting
capacity can be withdrawn or revoked at the pleasure of
the appointing power. A temporary or acting appointee
does not enjoy any security of tenure, no matter how
briefly. (Matibag v. Benipayo, 380 SCRA 49, April 2,

In fine, we rule that the ad interim appointments

extended by the President to Benipayo, Borra and Tuason,
as COMELEC Chairman and Commissioners, respectively,
do not constitute temporary or acting appointments
prohibited by Section 1 (2), Article IX-C of the
Constitution. (Matibag v. Benipayo, 380 SCRA 49,

Benipayo, 380 SCRA 49, April 2, 2002, En Banc

[Carpio])

2002, En Banc [Carpio])

82. Benipayo, Tuason and Borra were appointed

Chairman and Commissioners, respectively, of the
Commission on Elections, by the President when
Congress was not in session. Did their appointment
violate the Sec. 1(2), Art. IX-C of the Constitution that
substantially provides that No member of the
Commission (on Elections) shall be appointed in an
acting or temporary capacity?
Held: In the instant case, the President did in
fact appoint permanent Commissioners to fill the
vacancies in the COMELEC, subject only to confirmation
by the Commission on Appointments. Benipayo, Borra
and Tuason were extended permanent appointments
during the recess of Congress. They were not appointed
or designated in a temporary or acting capacity, unlike
Commissioner Haydee Yorac in Brillantes v. Yorac and
Solicitor General Felix Bautista in Nacionalista Party v.
Bautista. The ad interim appointments of Benipayo, Borra
and Tuason are expressly allowed by the Constitution
which authorizes the President, during the recess of
Congress, to make appointments that take effect
immediately.
While the Constitution mandates that the
COMELEC shall be independent, this provision should be
harmonized with the Presidents power to extend ad
interim appointments. To hold that the independence of

of the Constitution).

April 2, 2002, En Banc [Carpio])

83. Discuss the reason why the framers of the 1987

Constitution thought it wise to reinstate the 1935
Constitution provision on ad interim appointments of
the President.
Held: The original draft of Section 16, Article VII
of the Constitution on the nomination of officers subject
to confirmation by the Commission on Appointments did
not provide for ad interim appointments. The original
intention of the framers of the Constitution was to do
away with ad interim appointments because the plan was
for Congress to remain in session throughout the year
except for a brief 30-day compulsory recess. However,
because of the need to avoid disruptions in essential
government services, the framers of the Constitution
thought it wise to reinstate the provisions of the 1935
Constitution on ad interim appointments. X x x
Xxx
Clearly, the reinstatement in the present
Constitution of the ad interim appointing power of the
President was for the purpose of avoiding interruptions in
vital government services that otherwise would result
from prolonged vacancies in government offices, including
the three constitutional commissions. In his concurring
opinion in Guevarra v. Inocentes, decided under the 1935
Constitution, Justice Roberto Concepcion, Jr. explained
40

the rationale behind ad interim appointments in this

manner:
Now, why is the lifetime of ad interim
appointments so limited? Because, if they expired before
the session of Congress, the evil sought to be avoided
interruption in the discharge of essential functions may
take place. Because the same evil would result if the
appointments ceased to be effective during the session of
Congress and before its adjournment. Upon the other
hand, once Congress has adjourned, the evil
aforementioned may easily be conjured by the issuance of
other ad interim appointments or reappointments.

(Matibag v. Benipayo, 380 SCRA 49, April 2, 2002,

En Banc [Carpio])

84. The ad interim appointments of Benipayo, Borra and

Tuason as Chairman and Commissioners, respectively,
of the COMELEC were by-passed by the Commission
on Appointments. However, they were subsequently
reappointed by the President to the same positions.
Did their subsequent reappointment violate the
prohibition against reappointment under Section 1(2),
Article IX-C of the 1987 Constitution?
Held: There is no dispute that an ad interim
appointee disapproved by the Commission on
Appointments can no longer be extended a new
appointment. The disapproval is a final decision of the
Commission on Appointments in the exercise of its
checking power on the appointing authority of the
President. The disapproval is a decision on the merits,
being a refusal by the Commission on Appointments to
give its consent after deliberating on the qualifications of
the appointee. Since the Constitution does not provide for
any appeal from such decision, the disapproval is final and
binding on the appointee as well as on the appointing
power. In this instance, the President can no longer
renew the appointment not because of the constitutional
prohibition on appointment, but because of a final
decision by the Commission on Appointments to withhold
its consent to the appointment.
An ad interim appointment that is by-passed
because of lack of time or failure of the Commission on
Appointments to organize is another matter. A by-passed
appointment is one that has not been finally acted upon
on the merits by the Commission on Appointments at the
close of the session of Congress. There is no final
decision by the Commission on Appointments to give or
withhold its consent to the appointment as required by
the Constitution. Absent such decision, the President is
free to renew the ad interim appointment of a by-passed
appointee. This is recognized in Section 17 of the Rules
of the Commission on Appointments x x x. Hence, under
the Rules of the Commission on Appointments, a bypassed appointment can be considered again if the
President renews the appointment.
It is well-settled in this jurisdiction that the
President can renew the ad interim appointments of bypassed appointees.
Justice Roberto Concepcion, Jr.
lucidly explained in his concurring opinion in Guevarra v.
Inocentes why by-passed ad interim appointees could be
extended new appointments, thus:
In short, an ad interim appointment ceases to be
effective upon disapproval by the Commission, because
the incumbent can not continue holding office over the
positive objection of the Commission. It ceases, also,
upon the next adjournment of the Congress, simply

because the President may then issue new appointments

not because of implied disapproval of the Commission
deduced from its intention during the session of Congress,
for, under the Constitution, the Commission may affect
adversely the interim appointments only by action, never
by omission. If the adjournment of Congress were an
implied disapproval of ad interim appointments made prior
thereto, then the President could no longer appoint those
so by-passed by the Commission. But, the fact is that the
President may reappoint them, thus clearly indicating that
the reason for said termination of the ad interim
appointments is not the disapproval thereof allegedly
inferred from said omission of the Commission, but the
circumstance that upon said adjournment of the Congress,

the President is free to make ad interim appointments or

reappointments.
Guevarra was decided under the 1935 Constitution from

where the second paragraph of Section 16, Article VII of

the present Constitution on ad interim appointments was
lifted verbatim.
The jurisprudence under the 1935
Constitution governing ad interim appointments by the
President is doubtless applicable to the present
Constitution. The established practice under the present
Constitution is that the President can renew the
appointments of by-passed ad interim appointees. This is
a continuation of the well-recognized practice under the
1935 Constitution, interrupted only by the 1973
Constitution which did not provide for a Commission on
Appointments but vested sole appointing power in the
President.
The prohibition on reappointment in Section 1 (2),
Article IX-C of the Constitution applies neither to
disapproved nor by-passed ad interim appointments. A
disapproved ad interim appointment cannot be revived by
another ad interim appointment because the disapproval
is final under Section 16, Article VII of the Constitution,
and not because a reappointment is prohibited under
Section 1 (2), Article IX-C of the Constitution. A bypassed ad interim appointment cannot be revived by a
new ad interim appointment because there is no final
disapproval under Section 16, Article VII of the
Constitution, and such new appointment will not result in
the appointee serving beyond the fixed term of seven
years.
Xxx
The framers of the Constitution made it quite
clear that any person who has served any term of office
as COMELEC member whether for a full term of seven
years, a truncated term of five or three years, or even an
unexpired term for any length of time can no longer be
reappointed to the COMELEC. X x x
Xxx
In Visarra v. Miraflor, Justice Angelo Bautista, in his
concurring opinion, quoted Nacionalista v. De Vera that a
[r]eappointment is not prohibited when a Commissioner
has held, office only for, say, three or six years, provided
his term will not exceed nine years in all. This was the
interpretation despite the express provision in the 1935
Constitution that a COMELEC member shall hold office for
a term of nine years and may not be reappointed.
To foreclose this interpretation, the phrase
without reappointment appears twice in Section 1 (2),
Article IX-C of the present Constitution. The first phrase
prohibits reappointment of any person previously
appointed for a term of seven years. The second phrase
prohibits reappointment of any person previously
41

appointed for a term of five or three years pursuant to the

first set of appointees under the Constitution. In either
case, it does not matter if the person previously appointed
completes his term of office for the intention is to prohibit
any reappointment of any kind.
However, an ad interim appointment that has
lapsed by inaction of the Commission on Appointments
does not constitute a term of office. The period from the
time the ad interim appointment is made to the time it
lapses is neither a fixed term nor an unexpired term. To
hold otherwise would mean that the President by his
unilateral action could start and complete the running of a
term of office in the COMELEC without the consent of the
Commission on Appointments. This interpretation renders
inutile the confirming power of the Commission on
Appointments.
The phrase without reappointment applies only
to one who has been appointed by the President and
confirmed by the Commission on Appointments, whether
or not such person completes his term of office. There
must be a confirmation by the Commission on
Appointments of the previous appointment before the
prohibition on reappointment can apply.
To hold
otherwise will lead to absurdities and negate the
Presidents power to make ad interim appointments.
In the great majority of cases, the Commission on
Appointments usually fails to act, for lack of time, on the
ad interim appointments first issued to appointees. If
such ad interim appointments can no longer be renewed,
the President will certainly hesitate to make ad interim
appointments because most of her appointees will
effectively be disapproved by mere inaction of the
Commission on Appointments.
This will nullify the
constitutional power of the President to make ad interim
appointments, a power intended to avoid disruptions in
vital government services. This Court cannot subscribe to
a proposition that will wreak havoc on vital government
services.
The prohibition on reappointment is common to
the three constitutional commissions. The framers of the
present Constitution prohibited reappointments for two
reasons. The first is to prevent a second appointment for
those who have been previously appointed and confirmed
even if they served for less than seven years. The second
is to insure that the members of the three constitutional
commissions do not serve beyond the fixed term of seven
years. x x x.
Xxx
Plainly, the prohibition on reappointment is intended to
insure that there will be no reappointment of any kind.
On the other hand, the prohibition on temporary or acting
appointments is intended to prevent any circumvention of
the prohibition on reappointment that may result in an
appointees total term of office exceeding seven years.
The evils sought to be avoided by the twin prohibitions
are very specific reappointment of any kind and
exceeding ones term in office beyond the maximum
period of seven years.
Not contented with these ironclad twin
prohibitions, the framers of the Constitution tightened
even further the screws on those who might wish to
extend their terms of office. Thus, the word designated
was inserted to plug any loophole that might be exploited
by violators of the Constitution x x x.

The ad interim appointments and subsequent

renewals of appointments of Benipayo, Borra and Tuason
do not violate the prohibition on reappointments because
there were no previous appointments that were confirmed
by the Commission on Appointments. A reappointment
presupposes a previous confirmed appointment. The
same ad interim appointments and renewal of
appointments will also not breach the seven-year term
limit because all the appointments and renewals of

appointments of Benipayo, Borra and Tuason are for a

fixed term expiring on February 2, 2008. Any delay in

their confirmation will not extend the expiry date of their

terms of office.
Consequently, there is no danger
whatsoever that the renewal of the ad interim
appointments of these three respondents will result in any
of the evils intended to be exorcised by the twin
prohibitions in the Constitution. The continuing renewal
of the ad interim appointment of these three respondents,
for so long as their terms of office expire on February 2,
2008, does not violate the prohibition on reappointments
in Section 1 (2), Article IX-C of the Constitution.

(Matibag v. Benipayo, 380 SCRA 49, April 2, 2002,

En Banc [Carpio])

85. What are the four situations where Section 1(2),

Article IX-C of the 1987 Constitution which provides
that [t]he Chairman and the Commissioners (of the
COMELEC) shall be appointed x x x for a term of
seven years without reappointment will apply?
Held:
Section 1 (2), Article IX-C of the
Constitution provides that [t]he Chairman and the
Commissioners shall be appointed x x x for a term of
seven years without reappointment. There are four
situations where this provision will apply.
The first
situation is where an ad interim appointee to the
COMELEC, after confirmation by the Commission on
Appointments, serves his full seven-year term. Such
person cannot be reappointed to the COMELEC, whether
as a member or as a chairman, because he will then be
actually serving more than seven years. The second
situation is where the appointee, after confirmation,
serves a part of his term and then resigns before his
seven-year term of office ends. Such person cannot be
reappointed, whether as a member or as a chair, to a
vacancy arising from retirement because a reappointment
will result in the appointee also serving more than seven
years. The third situation is where the appointee is
confirmed to serve the unexpired term of someone who
died or resigned, and the appointee completes the
unexpired term. Such person cannot be reappointed,
whether as a member or chair, to a vacancy arising from
retirement because a reappointment will result in the
appointee also serving more than seven years.
The fourth situation is where the appointee has
previously served a term of less than seven years, and a
vacancy arises from death or resignation. Even if it will
not result in his serving more than seven years, a
reappointment of such person to serve an unexpired term
is also prohibited because his situation will be similar to
those appointed under the second sentence of Section 1
(2), Article IX-C of the Constitution. This provision refers
to the first appointees under the Constitution whose terms
of office are less than seven years, but are barred from
ever being reappointed under any situation. (Matibag v.

Benipayo, 380 SCRA 49, April 2, 2002, En Banc

[Carpio])

86. To what types of appointments is Section 15, Article

VII of the 1987 Constitution (prohibiting the President
42

from making appointments two months before the

next presidential elections and up to the end of his
term) directed against?
Held: Section 15, Article VII is directed against
two types of appointments: (1) those made for buying
votes and (2) those made for partisan considerations.
The first refers to those appointments made within two
months preceding the Presidential election and are similar
to those which are declared election offenses in the
Omnibus Election Code; while the second consists of the
so-called midnight appointments. The SC in In Re:

Hon. Mateo A. Valenzuela and Hon. Placido B.

Vallarta, (298 SCRA 408, Nov. 9, 1998, En Banc
[Narvasa C.J.]) clarified this when it held:

Section 15, Article VII has a broader

scope than the Aytona ruling. It may not unreasonably
be deemed to contemplate not only midnight
appointments those made obviously for partisan
reasons as shown by their number and the time of their
making but also appointments presumed made for the
purpose of influencing the outcome of the Presidential
election.

87. Ma. Evelyn S. Abeja was a municipal mayor. She ran

for reelection but lost. Before she vacated her office,
though, she extended permanent appointments to
fourteen new employees of the municipal
government. The incoming mayor, upon assuming
office, recalled said appointments contending that
these were midnight appointments and, therefore,
prohibited under Sec. 15, Art. VII of the 1987
Constitution. Should the act of the new mayor of
recalling said appointments on the aforestated ground
be sustained?
Held:
The records reveal that when the
petitioner brought the matter of recalling the
appointments of the fourteen (14) private respondents
before the CSC, the only reason he cited to justify his
action was that these were midnight appointments that
are forbidden under Article VII, Section 15 of the
Constitution. However, the CSC ruled, and correctly so,
that the said prohibition applies only to presidential
appointments. In truth and in fact, there is no law that
prohibits local elective officials from making appointments
during the last days of his or her tenure. (De Rama v.

Court of Appeals, 353 SCRA 94, Feb. 28, 2001, En

Banc [Ynares-Santiago])
88. Distinguish the Presidents power of general
supervision over local governments from his control
power.

Held: On many occasions in the past, this Court

has had the opportunity to distinguish the power of
supervision from the power of control. In Taule v. Santos,
we held that the Chief Executive wielded no more
authority than that of checking whether a local
government or the officers thereof perform their duties as
provided by statutory enactments. He cannot interfere
with local governments provided that the same or its
officers act within the scope of their authority.
Supervisory power, when contrasted with control, is the
power of mere oversight over an inferior body; it does not
include any restraining authority over such body. Officers
in control lay down the rules in the doing of an act. If
they are not followed, it is discretionary on his part to
order the act undone or redone by his subordinate or he
may even decide to do it himself. Supervision does not
cover such authority. Supervising officers merely see to it

that the rules are followed, but he himself does not lay
down such rules, nor does he have the discretion to
modify or replace them. If the rules are not observed, he
may order the work done or re-done to conform to the
prescribed rules. He cannot prescribe his own manner for
the doing of the act. (Bito-Onon v. Fernandez, 350

SCRA 732, Jan. 31, 2001, 3rd Div. [Gonzaga-Reyes])

89. Is the prior recommendation of the Secretary of

Justice a mandatory requirement before the President
may validly appoint a provincial prosecutor?
Held: This question would x x x pivot on the
proper understanding of the provision of the Revised
Administrative Code of 1987 (Book IV, Title III, Chapter
II, Section 9) to the effect that
All provincial and city prosecutors and
their assistants shall be appointed by the
President upon the recommendation of the
Secretary.
Petitioners contend that an appointment of a provincial
prosecutor mandatorily requires a prior recommendation
of the Secretary of Justice endorsing the intended
appointment x x x.
When the Constitution or the law clothes the
President with the power to appoint a subordinate officer,
such conferment must be understood as necessarily
carrying with it an ample discretion of whom to appoint.
It should be here pertinent to state that the President is
the head of government whose authority includes the
power of control over all executive departments, bureaus
and offices.
Control means the authority of an
empowered officer to alter or modify, or even nullify or
set aside, what a subordinate officer has done in the
performance of his duties, as well as to substitute the
judgment of the latter, as and when the former deems it
to be appropriate.
Expressed in another way, the
President has the power to assume directly the functions
of an executive department, bureau and office. It can
accordingly be inferred therefrom that the President can
interfere in the exercise of discretion of officials under him
or altogether ignore their recommendations.
It is the considered view of the Court x x x that
the phrase upon recommendation of the Secretary,
found in Section 9, Chapter II, Title III, Book IV, of the
Revised Administrative Code, should be interpreted x x x
to be a mere advise, exhortation or indorsement, which is
essentially persuasive in character and not binding or
obligatory upon the party to whom it is made. The
recommendation is here nothing really more than advisory
in nature. The President, being the head of the Executive
Department, could very well disregard or do away with
the action of the departments, bureaus or offices even in
the exercise of discretionary authority, and in so opting,
he cannot be said as having acted beyond the scope of his
authority. (Bermudez v. Executive Secretary Ruben

Torres, G.R. No. 131429, Aug. 4, 1999, 3rd Div.

[Vitug])
90. Distinguish the Presidents power to call out the
armed forces as their Commander-in-Chief in order to
prevent or suppress lawless violence, invasion or
rebellion, from his power to proclaim martial and
suspend the privilege of the writ of habeas corpus.
Explain why the former is not subject to judicial
review while the latter two are.
43

Held: There is a clear textual commitment under

the Constitution to bestow on the President full
discretionary power to call out the armed forces and to
determine the necessity for the exercise of such power.
Section 18, Article VII of the Constitution, which embodies
the powers of the President as Commander-in-Chief,
provides in part:
The President shall be the Commander-inChief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion
or rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas
corpus, or place the Philippines or any part
thereof under martial law.
The full discretionary power of the President to
determine the factual basis for the
exercise of the
calling out power is also implied and further reinforced in
the rest of Section 18, Article VII x x x.
Under the foregoing provisions, Congress may
revoke such proclamations (of martial law) or suspension
(of the privilege of the writ of habeas corpus) and the
Court may review the sufficiency of the factual basis
thereof. However, there is no such equivalent provision
dealing with the revocation or review of the President's
action to call out the armed forces. The distinction places
the calling out power in a different category from the
power to declare martial law and the power to suspend
the privilege of the writ of habeas corpus, otherwise, the
framers of the Constitution would have simply lumped
together the three powers and provided for their
revocation and review without any qualification. Expressio
unios est exclusio alterius. X x x That the intent of the
Constitution is exactly what its letter says, i.e., that the
power to call is fully discretionary to the President, is
extant in the deliberation of the Constitutional Commission
x x x.
The reason for the difference in the treatment of
the aforementioned powers highlights the intent to grant
the President the widest leeway and broadest discretion in
using the power to call out because it is considered as the
lesser and more benign power compared to the power to
suspend the privilege of the writ of habeas corpus and the
power to impose martial law, both of which involve the
curtailment and suppression of certain basic civil rights
and individual freedoms, and thus necessitating
safeguards by Congress and review by this Court.
Moreover, under Section 18, Article VII of the
Constitution, in the exercise of the power to suspend the
privilege of the writ of habeas corpus or to impose martial
law, two conditions must concur: (1) there must be an
actual invasion or rebellion and, (2) public safety must
require it. These conditions are not required in the case
of the power to call out the armed forces. The only
criterion is that whenever it becomes necessary, the
President may call the armed forces to prevent or
suppress lawless violence, invasion or rebellion. The
implication is that the President is given full discretion and
wide latitude in the exercise of the power to call as
compared to the two other powers.
If the petitioner fails, by way of proof, to support
the assertion that the President acted without factual
basis, then this Court cannot undertake an independent

investigation beyond the pleadings. The factual necessity

of calling out the armed forces is not easily quantifiable
and cannot be objectively established since matters
considered for satisfying the same is a combination of
several factors which are not always accessible to the
courts. Besides the absence of textual standards that the
court may use to judge necessity, information necessary
to arrive at such judgment might also prove
unmanageable for the courts.
Certain pertinent
information might be difficult to verify, or wholly
unavailable to the courts.
In many instances, the
evidence upon which the President might decide that
there is a need to call out the armed forces may be of a
nature not constituting technical proof.
On the other hand, the President as Commanderin-Chief has a vast intelligence network to gather
information, some of which may be classified as highly
confidential or affecting the security of the state. In the
exercise of the power to call, on-the-spot decisions may
be imperatively necessary in emergency situations to avert
great loss of human lives and mass destruction of
property. Indeed, the decision to call out the military to
prevent or suppress lawless violence must be done swiftly
and decisively if it were to have any effect at all. Such a
scenario is not farfetched when we consider the present
situation in Mindanao, where the insurgency problem
could spill over the other parts of the country. The
determination of the necessity for the calling out power if
subjected to unfettered judicial scrutiny could be a
veritable prescription for disaster as such power may be
unduly straitjacketed by an injunction or a temporary
restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution
to vest upon the President, as Commander-in-Chief of the
Armed Forces, full discretion to call forth the military when
in his judgment it is necessary to do so in order to prevent
or suppress lawless violence, invasion or rebellion. Unless
the petitioner can show that the exercise of such
discretion was gravely abused, the President's exercise of
judgment deserves to be accorded respect from this
Court. (Integrated Bar of the Philippines v. Hon.

Ronaldo B. Zamora, G.R. No. 141284, Aug. 15,

2000, En Banc [Kapunan])

91. By issuing a TRO on the date convicted rapist Leo

Echegaray is to be executed by lethal injection, the
Supreme Court was criticized on the ground, among
others, that it encroached on the power of the
President to grant reprieve under Section 19, Article
VII, 1987 Constitution. Justify the SC's act.
Held:
Section 19, Article VII of the 1987
Constitution is simply the source of power of the President
to grant reprieves, commutations, and pardons and remit
fines and forfeitures after conviction by final judgment.
This provision, however, cannot be interpreted as denying
the power of courts to control the enforcement of their
decisions after the finality. In truth, an accused who has
been convicted by final judgment still possesses collateral
rights and these rights can be claimed in the appropriate
courts. For instance, a death convict who becomes insane
after his final conviction cannot be executed while in a
state of insanity (See Article 79 of the Revised Penal
Code). The suspension of such a death sentence is
undisputably an exercise of judicial power. It is not
usurpation of the presidential power of reprieve though its
effect is the same the temporary suspension of the
execution of the death convict. In the same vein, it
cannot be denied that Congress can at any time amend
44

R.A. No. 7659 by reducing the penalty of death to life

imprisonment. The effect of such an amendment is like
that of commutation of sentence. But by no stretch of the
imagination can the exercise by Congress of its plenary
power to amend laws be considered as a violation of the
Presidents power to commute final sentences of
conviction. The powers of the Executive, the Legislative

and the Judiciary to save the life of a death convict do not

exclude each other for the simple reason that there is no
higher right than the right to life. (Echegaray v.
Secretary of Justice, 301 SCRA 96, Jan. 19, 1999,
En Banc [Puno])
92. Discuss the nature of a conditional pardon. Is its
grant or revocation by the President subject to judicial
review?
Held: A conditional pardon is in the nature of a
contract between the sovereign power or the Chief
Executive and the convicted criminal to the effect that the
former will release the latter subject to the condition that
if he does not comply with the terms of the pardon, he
will be recommitted to prison to serve the unexpired
portion of the sentence or an additional one . By the
pardonees consent to the terms stipulated in this
contract, the pardonee has thereby placed himself under
the supervision of the Chief Executive or his delegate who
is duty-bound to see to it that the pardonee complies with
the terms and conditions of the pardon. Under Section
64(i) of the Revised Administrative Code, the Chief
Executive is authorized to order the arrest and reincarceration of any such person who, in his judgment,
shall fail to comply with the condition, or conditions of his
pardon, parole, or suspension of sentence. It is now a
well-entrenched rule in this jurisdiction that this exercise
of presidential judgment is beyond judicial scrutiny. The
determination of the violation of the conditional pardon
rests exclusively in the sound judgment of the Chief
Executive, and the pardonee, having consented to place
his liberty on conditional pardon upon the judgment of the
power that has granted it, cannot invoke the aid of the
courts, however erroneous the findings may be upon
which his recommitment was ordered.
Xxx
Ultimately, solely vested in the Chief Executive,
who in the first place was the exclusive author of the
conditional pardon and of its revocation, is the corollary
prerogative to reinstate the pardon if in his own
judgment, the acquittal of the pardonee from the
subsequent charges filed against him, warrants the same.
Courts have no authority to interfere with the grant by the
President of a pardon to a convicted criminal. It has been
our fortified ruling that a final judicial pronouncement as
to the guilt of a pardonee is not a requirement for the
President to determine whether or not there has been a
breach of the terms of a conditional pardon. There is
likewise nil a basis for the courts to effectuate the
reinstatement of a conditional pardon revoked by the
President in the exercise of powers undisputably solely
and absolutely in his office.
(In Re: Wilfredo

Sumulong Torres, 251 SCRA 709, Dec. 29, 1995

[Hermosisima])
93. Who has the power to ratify a treaty?
Held: In our jurisdiction, the power to ratify is
vested in the President and not, as commonly believed, in
the legislature. The role of the Senate is limited only to
giving or withholding its consent, or concurrence, to the
ratification.
(BAYAN
[Bagong
Alyansang

Makabayan] v. Executive Secretary Ronaldo

Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc
[Buena])
94. Which provision of the Constitution applies with
regard to the exercise by the Senate of its
constitutional power to concur with the Visiting Forces
Agreement (VFA)?
Held: The 1987 Philippine Constitution contains
two provisions requiring the concurrence of the Senate on
treaties or international agreements. Section 21, Article
VII x x x reads:
No treaty or international agreement
shall be valid and effective unless concurred in by
at least two-thirds of all the Members of the
Senate.
Section 25, Article XVIII, provides:
After the expiration in 1991 of the
Agreement between the Republic of the Philippines and
the United States of America concerning Military Bases,
foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so
requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose,
and recognized as a treaty by the other contracting
State.
Section 21, Article VII deals with treaties or
international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the
Members of the Senate is required to make the subject
treaty, or international agreement, valid and binding on
the part of the Philippines. This provision lays down the
general rule on treaties or international agreements and
applies to any form of treaty with a wide variety of subject
matter, such as, but not limited to, extradition or tax
treaties or those economic in nature. All treaties or
international agreements entered into by the Philippines,
regardless of subject matter, coverage, or particular
designation or appellation, requires the concurrence of the
Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special
provision that applies to treaties which involve the
presence of foreign military bases, troops or facilities in
the Philippines. Under this provision, the concurrence of
the Senate is only one of the requisites to render
compliance with the constitutional requirements and to
consider the agreement binding on the Philippines.
Section 25, Article XVIII further requires that foreign
military bases, troops, or facilities may be allowed in the
Philippines only by virtue of a treaty duly concurred in by
the Senate, ratified by a majority of the votes cast in a
national referendum held for that purpose if so required
by Congress, and recognized as such by the other
contracting State.
It is our considered view that both constitutional
provisions, far from contradicting each other, actually
share some common ground.
These constitutional
provisions both embody phrases in the negative and thus,
are deemed prohibitory in mandate and character. In
particular, Section 21 opens with the clause No treaty x x
x, and Section 25 contains the phrase shall not be
allowed. Additionally, in both instances, the concurrence
45

of the Senate is indispensable to render the treaty or

international agreement valid and effective.
To our mind, the fact that the President referred
the VFA to the Senate under Section 21, Article VII, and
that the Senate extended its concurrence under the same
provision, is immaterial. For in either case, whether under
Section 21, Article VII or Section 25, Article XVIII, the
fundamental law is crystalline that the concurrence of the
Senate is mandatory to comply with the strict
constitutional requirements.
On the whole, the VFA is an agreement which
defines the treatment of United States troops and
personnel visiting the Philippines. It provides for the
guidelines to govern such visits of military personnel, and
further defines the rights of the United States and the
Philippine government in the matter of criminal
jurisdiction, movement of vessels and aircraft, importation
and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which
specifically deals with treaties involving foreign military
bases, troops, or facilities, should apply in the instant
case. To a certain extent and in a limited sense, however,
the provisions of Section 21, Article VII will find
applicability with regard to the issue and for the sole
purpose of determining the number of votes required to
obtain the valid concurrence of the Senate x x x.
It is a finely-imbedded principle in statutory
construction that a special provision or law prevails over a
general one. Lex specialis derogat generali. (BAYAN

[Bagong Alyansang Makabayan] v. Executive

Secretary Ronaldo Zamora, G.R. No. 138570 and
Companion Cases, Oct. 10, 2000, 342 SCRA 449,
481-492, En Banc [Buena])

95. Should the contention that since the VFA merely

involved the temporary visits of United States
personnel engaged in joint military exercises and not
a basing agreement, therefore, Sec. 25, Art. XVIII of
the Constitution is inapplicable to the VFA, be upheld?
Held: It is specious to argue that Section 25,
Article XVIII is inapplicable to mere transient agreements
for the reason that there is no permanent placing of
structure for the establishment of a military base. On this
score, the Constitution makes no distinction between
transient and permanent. Certainly, we find nothing in
Section 25, Article XVIII that requires foreign troops or
facilities to be stationed or placed permanently in the
Philippines.
It is a rudiment in legal hermeneutics that when
no distinction is made by law, the Court should not
distinguish - Ubi lex non distinguit nec nos distinguire

debemos. (BAYAN [Bagong Alyansang Makabayan]

v. Executive Secretary Ronaldo Zamora, G.R. No.
138570 and Companion Cases, Oct. 10, 2000, 342
SCRA 449, 481-492, En Banc [Buena])
96. Will it be correct to argue that since no foreign
military bases, but merely troops and facilities, are
involved in the VFA, therefore, Section 25, Article
XVIII of the Constitution is not controlling?
Held: In like manner, we do not subscribe to the
argument that Section 25, Article XVIII is not controlling
since no foreign military bases, but merely foreign troops
and facilities, are involved in the VFA. Notably, a perusal

of said constitutional provision reveals that the

proscription covers foreign military bases, troops, or
facilities. Stated differently, this prohibition is not limited
to the entry of troops and facilities without any foreign
bases being established. The clause does not refer to
foreign military bases, troops, or facilities collectively
but treats them as separate and independent subjects.
The use of comma and disjunctive word "or" clearly
signifies disassociation and independence of one thing
from the others included in the enumeration, such that,
the provision contemplates three different situations - a
military treaty the subject of which could be either (a)
foreign bases (b) foreign troops, or (c) foreign facilities any of the three standing alone places it under the
coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the
Charter x x x is consistent with this interpretation x x x.
Moreover, military bases established within the
territory of another state is no longer viable because of
the alternatives offered by new means and weapons of
warfare such as nuclear weapons, guided missiles as well
as huge sea vessels that can stay afloat in the sea even
for months and years without returning to their home
country. These military warships are actually used as
substitutes for a land-home base not only of military
aircraft but also of military personnel and facilities.
Besides, vessels are mobile as compared to a land-based
military headquarters. (BAYAN [Bagong Alyansang

Makabayan] v. Executive Secretary Ronaldo

Zamora, G.R. No. 138570 and Companion Cases,
Oct. 10, 2000, 342 SCRA 449, 481-492, En Banc
[Buena])
97. Were the requirements of Sec. 25, Art. XVIII of the
1987 Constitution complied with when the Senate
gave its concurrence to the VFA?

Held: Section 25, Article XVIII disallows foreign

military bases, troops, or facilities in the country, unless
the following conditions are sufficiently met, viz: (a) it
must be under a treaty; (b) the treaty must be duly
concurred in by the Senate and, when so required by
Congress, ratified by a majority of the votes cast by the
people in a national referendum; and (c) recognized as a
treaty by the other contracting state.
There is no dispute as to the presence of the first
two requisites in the case of the VFA. The concurrence
handed by the Senate through Resolution No. 18 is in
accordance with the provisions of the Constitution,
whether under the general requirement in Section 21,
Article VII, or the specific mandate mentioned in Section
25, Article XVIII, the provision in the latter article
requiring ratification by a majority of the votes cast in a
national referendum being unnecessary since Congress
has not required it.
As to the matter of voting, Section 21, Article VII
particularly requires that a treaty or international
agreement, to be valid and effective, must be concurred

in by at least two-thirds of all the members of the Senate.

On the other hand, Section 25, Article XVIII simply
provides that the treaty be duly concurred in by the
Senate.
Applying the foregoing constitutional provisions, a
two-thirds vote of all the members of the Senate is clearly
required so that the concurrence contemplated by law
may be validly obtained and deemed present. While it is

46

true that Section 25, Article XVIII requires, among other

things, that the treaty - the VFA, in the instant case - be
duly concurred in by the Senate, it is very true however
that said provision must be related and viewed in light of
the clear mandate embodied in Section 21, Article VII,
which in more specific terms, requires that the
concurrence of a treaty, or international agreement, be
made by a two-thirds vote of all the members of the
Senate. Indeed, Section 25, Article XVIII must not be
treated in isolation to Section 21, Article VII.
As noted, the concurrence requirement under
Section 25, Article XVIII must be construed in relation to
the provisions of Section 21, Article VII. In a more
particular language, the concurrence of the Senate
contemplated under Section 25, Article XVIII means that
at least two-thirds of all the members of the Senate
favorably vote to concur with the treaty - the VFA in the
instant case.
xxx
Having resolved that the first two requisites
prescribed in Section 25, Article XVIII are present, we
shall now pass upon and delve on the requirement that
the VFA should be recognized as a treaty by the United
States of America.
xxx
This Court is of the firm view that the phrase
recognized as a treaty means that the other contracting
party accepts or acknowledges the agreement as a treaty.
To require the other contracting state, The United States
of America in this case, to submit the VFA to the United
States Senate for concurrence pursuant to its Constitution,
is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words
used in the Constitution are to be given their ordinary
meaning except where technical terms are employed, in
which case the significance thus attached to them
prevails. Its language should be understood in the sense
they have in common use.
Moreover, it is inconsequential whether the United
States treats the VFA only as an executive agreement
because, under international law, an executive agreement
is as binding as a treaty. To be sure, as long as the VFA
possesses the elements of an agreement under
international law, the said agreement is to be taken
equally as a treaty.
xxx
The records reveal that the United States
Government, through Ambassador Thomas C. Hubbard,
has stated that the United States government has fully
committed to living up to the terms of the VFA. For as
long as the United States of America accepts or
acknowledges the VFA as a treaty, and binds itself further
to comply with its obligations under the treaty, there is
indeed marked compliance with the mandate of the
Constitution.
Worth stressing too, is that the ratification, by the
President, of the VFA and the concurrence of the Senate
should be taken as a clear and unequivocal expression of
our nation's consent to be bound by said treaty, with the
concomitant duty to uphold the obligations and
responsibilities embodied thereunder.

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

Alyansang Makabayan] v. Executive Secretary

Ronaldo Zamora, G.R. No. 138570 and Companion
Cases, Oct. 10, 2000, 342 SCRA 449, 481-492, En
Banc [Buena])
98. Are the Balikatan exercises covered by the Visiting
Forces Agreement?
Held: The holding of Balikatan 02-1 must be
studied in the framework of the treaty antecedents to
which the Philippines bound itself. The first of these is the
Mutual Defense Treaty (MDT, for brevity). The MDT has
been described as the core of the defense relationship
between the Philippines and its traditional ally, the United
States.
Its aim is to enhance the strategic and
technological capabilities of our armed forces through
joint training with its American counterparts; the
Balikatan is the largest such training exercise directly
supporting the MDTs objectives. It is this treaty to which
the VFA adverts and the obligations thereunder which it
seeks to reaffirm.
The lapse of the US-Philippine Bases Agreement
in 1992 and the decision not to renew it created a vacuum
in US-Philippine defense relations, that is, until it was
replaced by the Visiting Forces Agreement. It should be
recalled that on October 10, 2000, by a vote of eleven to
three, this Court upheld the validity of the VFA (BAYAN,
et. al. v. Zamora, et. al., 342 SCRA 449 [2000]). The VFA
provides the regulatory mechanism by which United
States military and civilian personnel [may visit]
temporarily in the Philippines in connection with activities
approved by the Philippine Government. It contains
provisions relative to entry and departure of American
personnel, driving and vehicle registration, criminal
jurisdiction, claims, importation and exportation,
movement of vessels and aircraft, as well as the duration
of the agreement and its termination. It is the VFA which
gives continued relevance to the MDT despite the passage
of years. Its primary goal is to facilitate the promotion of
optimal cooperation between American and Philippine
military forces in the event of an attack by a common foe.
The first question that should be addressed is
whether Balikatan 02-1 is covered by the Visiting Forces
Agreement. To resolve this, it is necessary to refer to the
VFA itself.
Not much help can be had therefrom,
unfortunately, since the terminology employed is itself the
source of the problem. The VFA permits United States
personnel to engage, on an impermanent basis, in
activities, the exact meaning of which was left
undefined. The expression is ambiguous, permitting a
wide scope of undertakings subject only to the approval of
the Philippine government. The sole encumbrance placed
on its definition is couched in the negative, in that United
States personnel must abstain from any activity
inconsistent with the spirit of this agreement, and in
particular, from any political activity. All other activities,
in other words, are fair game.
We are not completely unaided, however. The
Vienna Convention on the Law of Treaties, which contains
47

provisos governing interpretations

agreements, state x x x.

of

international

It is clear from the foregoing that the cardinal rule

of interpretation must involve an examination of the text,
which is presumed to verbalize the parties intentions.
The Convention likewise dictates what may be used as
aids to deduce the meaning of terms, which it refers to as
the context of the treaty, as well as other elements may
be taken into account alongside the aforesaid context. X
xx
The Terms of Reference rightly fall within the
context of the VFA.
After studied reflection, it appeared farfetched
that the ambiguity surrounding the meaning of the word
activities arose from accident. In our view, it was
deliberately made that way to give both parties a certain
leeway in negotiation. In this manner, visiting US forces
may sojourn in Philippine territory for purposes other than
military. As conceived, the joint exercises may include
training on new techniques of patrol and surveillance to
protect the nations marine resources, sea search-anddestroy operations to assist vessels in distress, disaster
relief operations, civic action projects such as the building
of school houses, medical and humanitarian missions, and
the like.
Under these auspices, the VFA gives legitimacy to
the current Balikatan exercises. It is only logical to
assume that Balikatan 02-1, a mutual anti-terrorism
advising, assisting and training exercise, falls under the
umbrella of sanctioned or allowable activities in the
context of the agreement. Both the history and intent of
the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities as opposed to
combat itself such as the one subject of the instant
petition, are indeed authorized. (Arthur D. Lim and

Paulino R. Ersando v. Honorable Executive

Secretary, G.R. No. 151445, April 11, 2002, En Banc
[De Leon])
99. What is the power of impoundment of the President?
What are its principal sources?
Held: Impoundment refers to the refusal of the
President, for whatever reason, to spend funds made
available by Congress. It is the failure to spend or
obligate budget authority of any type.

Proponents of impoundment have invoked at least

three principal sources of the authority of the President.
Foremost is the authority to impound given to him either
expressly or impliedly by Congress.
Second is the
executive power drawn from the Presidents role as
Commander-in-Chief.
Third is the Faithful Execution
Clause.
The proponents insist that a faithful execution of
the laws requires that the President desist from
implementing the law if doing so would prejudice public
interest. An example given is when through efficient and
prudent management of a project, substantial savings are
made. In such a case, it is sheer folly to expect the
President to spend the entire amount budgeted in the law.

(PHILCONSA v. Enriquez, 235 SCRA 506, Aug. 9,

1994 [Quiason])

100.
What are the requisites before the Court can
exercise the power of judicial review?
Held: 1. The time-tested standards for the
exercise of judicial review are: (1) the existence of an
appropriate case; (2) an interest personal and substantial
by the party raising the constitutional question; (3) the
plea that the function be exercised at the earliest
opportunity; and (4) the necessity that the constitutional
question be passed upon in order to decide the case

(Separate Opinion, Kapunan, J., in Isagani Cruz v.

Secretary of Environment and Natural Resources,
et al., G.R. No. 135385, Dec. 6, 2000, En Banc)
2. When questions of constitutional significance
are raised, the Court can exercise its power of judicial
review only if the following requisites are complied with,
namely: (1) the existence of an actual and appropriate
case; (2) a personal and substantial interest of the party
raising the constitutional question; (3) the exercise of
judicial review is pleaded at the earliest opportunity; and
(4) the constitutional question is the lis mota of the case.

(Integrated Bar of the Philippines v. Hon. Ronaldo

B. Zamora, G.R. No. 141284, Aug. 15, 2000, En
Banc [Kapunan])
101.
What are the requisites for the proper exercise of
the power of judicial review? Illustrative case.

Held: Respondents assert that the petition fails

to satisfy all the four requisites before this Court may
exercise its power of judicial review in constitutional
cases. Out of respect for the acts of the Executive
department, which is co-equal with this Court,
respondents urge this Court to refrain from reviewing the
constitutionality of the ad interim appointments issued by
the President to Benipayo, Borra and Tuason unless all the
four requisites are present. X x x
Respondents argue that the second, third and
fourth requisites are absent in this case. Respondents
maintain that petitioner does not have a personal and
substantial interest in the case because she has not
sustained a direct injury as a result of the ad interim
appointments of Benipayo, Borra and Tuason and their
assumption of office.
Respondents point out that
petitioner does not claim to be lawfully entitled to any of
the positions assumed by Benipayo, Borra or Tuason.
Neither does petitioner claim to be directly injured by the
appointments of these three respondents.
Respondents also contend that petitioner failed to
question the constitutionality of the ad interim
appointments at the earliest opportunity. Petitioner filed
the petition only on August 3, 2001 despite the fact that
the ad interim appointments of Benipayo, Borra and
Tuason were issued as early as March 22, 2001.
Moreover, the petition was filed after the third time that
these three respondents were issued ad interim
appointments.
Respondents insist that the real issue in this case
is the legality of petitioners reassignment from the EID to
the Law Department. Consequently, the constitutionality
of the ad interim appointments is not the lis mota of this
case.
We are not persuaded.

The Judicial Department

48

Benipayo reassigned petitioner from the EID,

where she was Acting Director, to the Law Department,
where she was placed on detail. Respondents claim that
the reassignment was pursuant to x x x Benipayos

authority as Chairman of the Commission on Elections,

and as the Commissions Chief Executive Officer.

Evidently, respondents anchor the legality of petitioners

reassignment on Benipayos authority as Chairman of the
COMELEC. The real issue then turns on whether or not
Benipayo is the lawful Chairman of the COMELEC. Even if
petitioner is only an Acting director of the EID, her
reassignment is without legal basis if Benipayo is not the
lawful COMELEC Chairman, an office created by the
Constitution.
On the other hand, if Benipayo is the lawful
COMELEC Chairman because he assumed office in
accordance with the Constitution, then petitioners
reassignment is legal and she has no cause to complain
provided the reassignment is in accordance with the Civil
Service Law. Clearly, petitioner has a personal and
material stake in the resolution of the constitutionality of
Benipayos assumption of office. Petitioners personal and
substantial injury, if Benipayo is not the lawful COMELEC
Chairman, clothes her with the requisite locus standi to
raise the constitutional issue in this petition.
Respondents harp on petitioners belated act of
questioning the constitutionality of the ad interim
appointments of Benipayo, Borra and Tuason. Petitioner
filed the instant petition only on August 3, 2001, when the
first ad interim appointments were issued as early as
March 22, 2001. However, it is not the date of filing of
the petition that determines whether the constitutional
issue was raised at the earliest opportunity. The earliest
opportunity to raise a constitutional issue is to raise it in
the pleadings before a competent court that can resolve
the same, such that, if it is not raised in the pleadings, it
cannot be considered on appeal. Petitioner questioned
the constitutionality of the ad interim appointments of
Benipayo, Borra and Tuason when she filed her petition
before this Court, which is the earliest opportunity for
pleading the constitutional issue before a competent body.
Furthermore, this Court may determine, in the exercise of
sound discretion, the time when a constitutional issue may
be passed upon. There is no doubt petitioner raised the
constitutional issue on time.
Moreover, the legality of petitioners reassignment
hinges on the constitutionality of Benipayos ad interim
appointment and assumption of office.
Unless the
constitutionality of Benipayos ad interim appointment and
assumption of office is resolved, the legality of petitioners
reassignment from the EID to the Law Department cannot
be determined. Clearly, the lis mota of this case is the
very constitutional issue raised by petitioner.
In any event, the issue raised by petitioner is of
paramount importance to the public. The legality of the
directives and decisions made by the COMELEC in the
conduct of the May 14, 2001 national elections may be
put in doubt if the constitutional issue raised by petitioner
is left unresolved. In keeping with this Courts duty to
determine whether other agencies of government have
remained within the limits of the Constitution and have
not abused the discretion given them, this Court may
even brush aside technicalities of procedure and resolve
any constitutional issue raised. Here the petitioner has
complied with all the requisite technicalities. Moreover,
public interest requires the resolution of the constitutional

issue raised by petitioner. (Matibag v. Benipayo, 380

SCRA 49, April 2, 2002, En Banc [Carpio])

102.

What is an actual case or controversy?

Held: An actual case or controversy means an

existing case or controversy which is both ripe for
resolution and susceptible of judicial determination, and
that which is not conjectural or anticipatory, or that which
seeks to resolve hypothetical or feigned constitutional
problems. A petition raising a constitutional question does
not present an actual controversy, unless it alleges a
legal right or power. Moreover, it must show that a
conflict of rights exists, for inherent in the term
controversy is the presence of opposing views or
contentions. Otherwise, the Court will be forced to
resolve issues which remain unfocused because they lack
such concreteness provided when a question emerges
precisely framed from a clash of adversary arguments
exploring every aspect of a multi-faceted situation
embracing conflicting and demanding interests.
The
controversy must also be justiciable; that is, it must be
susceptible of judicial determination. (Integrated Bar of

the Philippines v. Hon. Ronaldo B. Zamora, G.R. No.

141284, Aug. 15, 2000, En Banc [Kapunan])

103.
Petitioners Isagani Cruz and Cesar Europa
brought a suit for prohibition and mandamus as
citizens and taxpayers, assailing the constitutionality
of certain provisions of Republic Act No. 8371,
otherwise known as the Indigenous Peoples Rights
Act of 1997 (IPRA), and its Implementing Rules and
Regulations. A preliminary issue resolved by the SC
was whether the petition presents an actual
controversy.
Held:
Courts can only decide actual
controversies, not hypothetical questions or cases . The
threshold issue, therefore, is whether an appropriate
case exists for the exercise of judicial review in the
present case.
Xxx
In the case at bar, there exists a live controversy
involving a clash of legal rights. A law has been enacted,
and the Implementing Rules and Regulations approved.
Money has been appropriated and the government
agencies concerned have been directed to implement the
statute. It cannot be successfully maintained that we
should await the adverse consequences of the law in
order to consider the controversy actual and ripe for
judicial resolution. It is precisely the contention of the
petitioners that the law, on its face, constitutes an
unconstitutional abdication of State ownership over lands
of the public domain and other natural resources.
Moreover, when the State machinery is set into motion to
implement an alleged unconstitutional statute, this Court
possesses sufficient authority to resolve and prevent
imminent injury and violation of the constitutional process.

(Separate Opinion, Kapunan, J., in Isagani Cruz v.

Secretary of Environment and Natural Resources,
et al., G.R. No. 135385, Dec. 6, 2000, En Banc)
104.
When is an action considered moot? May the
court still resolve the case once it has become moot
and academic?
respect

Held: 1. It is alleged by respondent that, with

to the PCCR [Preparatory Commission on
49

Constitutional Reform], this case has become moot and

academic. We agree.
An action is considered moot when it no longer
presents a justiciable controversy because the issues
involved have become academic or dead. Under E.O. No.
43, the PCCR was instructed to complete its task on or
before June 30, 1999. However, on February 19, 1999,
the President issued Executive Order No. 70 (E.O. No.
70), which extended the time frame for the completion of
the commissions work x x x. The PCCR submitted its
recommendations to the President on December 20, 1999
and was dissolved by the President on the same day. It
had likewise spent the funds allocated to it. Thus, the
PCCR has ceased to exist, having lost its raison d tre.
Subsequent events have overtaken the petition and the
Court has nothing left to resolve.
The staleness of the issue before us is made more
manifest by the impossibility of granting the relief prayed
for by petitioner. Basically, petitioner asks this Court to
enjoin the PCCR from acting as such. Clearly, prohibition
is an inappropriate remedy since the body sought to be
enjoined no longer exists. It is well-established that
prohibition is a preventive remedy and does not lie to
restrain an act that is already fait accompli. At this point,
any ruling regarding the PCCR would simply be in the
nature of an advisory opinion, which is definitely beyond
the permissible scope of judicial power. (Gonzales v.

Narvasa, 337 SCRA 733, Aug. 14, 2000, En Banc

[Gonzaga-Reyes])

2.
The petition which was filed by private
respondents before the trial court sought the issuance of
a writ of mandamus, to command petitioners to admit
them for enrolment. Taking into account the admission of
private respondents that they have finished their Nursing
course at the Lanting College of Nursing even before the
promulgation of the questioned decision, this case has
clearly been overtaken by events and should therefore be
dismissed. However, the case of Eastern Broadcasting
Corporation (DYRE) v. Dans is the authority for the view
that even if a case were moot and academic, a statement
of the governing principle is appropriate in the resolution
of dismissal for the guidance not only of the parties but of
others similarly situated. We shall adhere to this view
and proceed to dwell on the merits of this petition.

(University of San Agustin, Inc. v. Court of Appeals,

230 SCRA 761, 770, March 7, 1994 [Nocon])

105.
Should the Court still resolve the case despite that
the issue has already become moot and academic?
Exception.
Held: Neither do we agree that merely because
a plebiscite had already been held in the case of the
proposed Barangay Napico, the petition of the Municipality
of Cainta has already been rendered moot and academic.
The issue raised by the Municipality of Cainta in its
petition before the COMELEC against the holding of the
plebiscite for the creation of Barangay Napico are still
pending determination before the Antipolo Regional Trial
Court.
In Tan v. Commission on Elections, we struck
down the moot and academic argument as follows
Considering that the legality of the
plebiscite itself is challenged for non-compliance
with constitutional requisites, the fact that such
plebiscite had been held and a new province

proclaimed and its officials appointed, the case

before Us cannot truly be viewed as already moot
and academic. Continuation of the existence of
this newly proclaimed province which petitioners
strongly profess to have been illegally born,
deserves to be inquired into by this Tribunal so
that, if indeed, illegality attaches to its creation,
the commission of that error should not provide
the very excuse for perpetration of such wrong.
For this Court to yield to the respondents urging
that, as there has been fait accompli, then this
Court should passively accept and accede to the
prevailing situation is an unacceptable suggestion.
Dismissal of the instant petition, as respondents
so propose is a proposition fraught with mischief.
Respondents submission will create a dangerous
precedent. Should this Court decline now to
perform its duty of interpreting and indicating
what the law is and should be, this might tempt
again those who strut about in the corridors of
power to recklessly and with ulterior motives,
create, merge, divide and/or alter the boundaries
of political subdivisions, either brazenly or
stealthily, confident that this Court will abstain
from entertaining future challenges to their acts if
they manage to bring about a fait accompli.

(City of Pasig v. COMELEC, 314 SCRA 179, Sept. 10,

1999, En Banc [Ynares-Santiago])

106.
On May 1, 2001, President Macapagal-Arroyo,
faced by an angry and violent mob armed with
explosives, firearms, bladed weapons, clubs, stones
and other deadly weapons assaulting and attempting
to break into Malacanang, issued Proclamation No. 38
declaring that there was a state of rebellion in the
National Capital Region. She likewise issued General
Order No. 1 directing the Armed Forces of the
Philippines and the Philippine National Police to
suppress the rebellion in the National Capital Region.
Warrantless arrests of several alleged leaders and
promoters of the rebellion were thereafter effected.
Hence, several petitions were filed before the SC
assailing the declaration of State of Rebellion by
President
Gloria
Macapagal-Arroyo
and
the
warrantless arrests allegedly effected by virtue
thereof.
Held:
All the foregoing petitions assail the
declaration of state of rebellion by President Gloria
Macapagal-Arroyo and the warrantless arrests allegedly
effected by virtue thereof, as having no basis both in fact
and in law. Significantly, on May 6, 2001, President
Macapagal-Arroyo ordered the lifting of the declaration of
a state of rebellion in Metro Manila. Accordingly, the
instant petitions have been rendered moot and academic.
As to petitioners claim that the proclamation of a state of
rebellion is being used by the authorities to justify
warrantless arrests, the Secretary of Justice denies that it
has issued a particular order to arrest specific persons in
connection with the rebellion. He states that what is
extant are general instructions to law enforcement officers
and military agencies to implement Proclamation No. 38.
x x x. With this declaration, petitioners apprehensions as
to warrantless arrests should be laid to rest. (Lacson v.

Perez, 357 SCRA 756, May 10, 2001, En Banc

[Melo])

107.
In connection with the May 11, 1998 elections,
the COMELEC issued a resolution prohibiting the
conduct of exit polls on the ground, among others,
that it might cause disorder and confusion considering
50

the randomness of selecting interviewees, which

further makes the exit polls unreliable.
The
constitutionality of this resolution was challenged by
ABS-CBN Broadcasting Corporation as violative of
freedom of expression.
The Solicitor General
contends that the petition has been rendered moot
and academic because the May 11, 1998 election has
already been held and done with and, therefore, there
is no longer any actual controversy to be resolved.
Resolve.
Held: While the assailed Resolution referred
specifically to the May 11, 1998 election, its implications
on the peoples fundamental freedom of expression
transcend the past election. The holding of periodic
elections is a basic feature of our democratic government.
By its very nature, exit polling is tied up with elections.
To set aside the resolution of the issue now will only
postpone a task that could well crop up again in future
elections.
In any event, in Salonga v. Cruz Pano, the Court
had occasion to reiterate that it also has the duty to
formulate guiding and controlling constitutional principles,
precepts, doctrines, or rules. It has the symbolic function
of educating bench and bar on the extent of protection
given by constitutional guarantees.
Since the
fundamental freedoms of speech and of the press are
being invoked here, we have resolved to settle, for the
guidance of posterity, whether they likewise protect the
holding of exit polls and the dissemination of data derived
therefrom. (ABS-CBN Broadcasting Corporation v.

COMELEC, G.R. No. 133486, Jan. 28, 2000, En Banc

[Panganiban])
108.
What is the meaning of "legal standing" or locus
standi?

Held: 1. Legal standing or locus standi has

been defined as a personal and substantial interest in the
case such that the party has sustained or will sustain
direct injury as a result of the governmental act that is
being challenged. The term interest means a material
interest, an interest in issue affected by the decree, as
distinguished from mere interest in the question involved,
or a mere incidental interest. The gist of the question of
standing is whether a party alleges such personal stake
in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of
difficult constitutional questions. (Integrated Bar of

the Philippines v. Hon. Ronaldo B. Zamora, G.R. No.

141284, Aug. 15, 2000)

2. In addition to the existence of an actual case

or controversy, a person who assails the validity of a
statute must have a personal and substantial interest in
the case, such that, he has sustained, or will sustain, a
direct injury as a result of its enforcement . Evidently, the
rights asserted by petitioners as citizens and taxpayers are
held in common by all the citizens, the violation of which
may result only in a generalized grievance. Yet, in a
sense, all citizen's and taxpayer's suits are efforts to air
generalized grievances about the conduct of government
and the allocation of power.
(Separate Opinion,

Kapunan, J., in Isagani Cruz v. Secretary of

Environment and Natural Resources, et al., G.R. No.
135385, Dec. 6, 2000, En Banc)
109.
Asserting itself as the official organization of
Filipino lawyers tasked with the bounden duty to

uphold the rule of law and the Constitution, the

Integrated Bar of the Philippines (IBP) filed a petition
before the SC questioning the validity of the order of
the President commanding the deployment and
utilization of the Philippine Marines to assist the
Philippine National Police (PNP) in law enforcement by
joining the latter in visibility patrols around the
metropolis. The Solicitor General questioned the legal
standing of the IBP to file the petition? Resolve.
Held: In the case at bar, the IBP primarily
anchors its standing on its alleged responsibility to uphold
the rule of law and the Constitution. Apart from this
declaration, however, the IBP asserts no other basis in
support of its locus standi. The mere invocation by the
IBP of its duty to preserve the rule of law and nothing
more, while undoubtedly true, is not sufficient to clothe it
with standing in this case. This is too general an interest
which is shared by other groups and the whole citizenry.
Based on the standards above-stated, the IBP has failed
to present a specific and substantial interest in the
resolution of the case. Its fundamental purpose which,
under Section 2, Rule 139-A of the Rules of Court, is to
elevate the standards of the law profession and to
improve the administration of justice is alien to, and
cannot be affected by the deployment of the Marines. x x
x Moreover, the IBP x x x has not shown any specific
injury which it has suffered or may suffer by virtue of the
questioned governmental act.
Indeed, none of its
members x x x has sustained any form of injury as a
result of the operation of the joint visibility patrols.
Neither is it alleged that any of its members has been
arrested or that their civil liberties have been violated by
the deployment of the Marines. What the IBP projects as
injurious is the supposed militarization of law
enforcement which might threaten Philippine democratic
institutions and may cause more harm than good in the
long run. Not only is the presumed injury not personal
in character, it is likewise too vague, highly speculative
and uncertain to satisfy the requirement of standing.
Since petitioner has not successfully established a direct
and personal injury as a consequence of the questioned
act, it does not possess the personality to assail the
validity of the deployment of the Marines. (Integrated

Bar of the Philippines v. Hon. Ronaldo B. Zamora,

G.R. No. 141284, Aug. 15, 2000, En Banc
[Kapunan])

110.
Considering the lack of requisite standing of the
IBP to file the petition questioning the validity of the
order of the President to deploy and utilize the
Philippine Marines to assist the PNP in law
enforcement, may the Court still properly take
cognizance of the case?
Held: Having stated the foregoing, it must be
emphasized that this Court has the discretion to take
cognizance of a suit which does not satisfy the
requirement of legal standing when paramount interest is
involved. In not a few cases, the Court has adopted a
liberal attitude on the locus standi of a petitioner where
the petitioner is able to craft an issue of transcendental
significance to the people. Thus, when the issues raised
are of paramount importance to the public, the Court may
brush aside technicalities of procedure. In this case, a
reading of the petition shows that the IBP has advanced
constitutional issues which deserve the attention of this
Court in view of their seriousness, novelty and weight as
precedents. Moreover, because peace and order are
under constant threat and lawless violence occurs in
increasing tempo, undoubtedly aggravated by the
51

Mindanao insurgency problem, the legal controversy

raised in the petition almost certainly will not go away. It
will stare us in the face again. It, therefore, behooves the
Court to relax the rules on standing and to resolve the
issue now, rather than later. (Integrated Bar of the

Philippines v. Hon. Ronaldo B. Zamora, G.R. No.

141284, Aug. 15, 2000)
111.
Discuss the nature of a taxpayers suit.
may it be allowed?

When

Held: 1. Petitioner and respondents agree that

to constitute a taxpayer's suit, two requisites must be
met, namely, that public funds are disbursed by a political
subdivision or instrumentality and in doing so, a law is
violated or some irregularity is committed, and that the
petitioner is directly affected by the alleged ultra vires act .
The same pronouncement was made in Kilosbayan, Inc. v.
Guingona, Jr., where the Court also reiterated its liberal
stance in entertaining so-called taxpayer's suits, especially
when important issues are involved. A closer examination
of the facts of this case would readily demonstrate that
petitioner's standing should not even be made an issue
here, since standing is a concept in constitutional law and
here no constitutional question is actually involved.
In the case at bar, disbursement of public funds
was only made in 1975 when the Province bought the
lands from Ortigas at P110.00 per square meter in line
with the objectives of P.D. 674. Petitioner never referred
to such purchase as an illegal disbursement of public
funds but focused on the alleged fraudulent reconveyance
of said property to Ortigas because the price paid was
lower than the prevailing market value of neighboring lots.
The first requirement, therefore, which would make this
petition a taxpayer's suit is absent. The only remaining
justification for petitioner to be allowed to pursue this
action is whether it is, or would be, directly affected by
the act complained of. As we stated in Kilosbayan, Inc. v.

Morato,

Standing is a special concern in

constitutional law because in some cases suits are
brought not by parties who have been personally
injured by the operation of a law or by official
action taken, but by concerned citizens, taxpayers
or voters who actually sue in the public interest.
Hence the question in standing is whether such
parties have 'alleged such a personal stake in the
outcome of the controversy as to assure that
concrete adverseness which sharpens the
presentation of issues upon which the court so
largely depends for illumination of difficult
constitutional questions.' (Citing Baker v. Carr,

369 U.S. 186, 7 L. Ed. 2d 633 [1962])

Undeniably, as a taxpayer, petitioner would somehow be

adversely affected by an illegal use of public money.
When, however, no such unlawful spending has been
shown x x x, petitioner, even as a taxpayer, cannot
question the transaction validly executed by and between
the Province and Ortigas for the simple reason that it is
not privy to said contract. In other words, petitioner has
absolutely no cause of action, and consequently no locus
standi, in the instant case. (The Anti-Graft League of

the Philippines, Inc. v. San Juan, 260 SCRA 250,

253-255, Aug. 1, 1996, En Banc [Romero])

2. A taxpayer is deemed to have the standing to

raise a constitutional issue when it is established that
public funds have been disbursed in alleged contravention

of the law or the Constitution. Thus, a taxpayers action is

properly brought only when there is an exercise by
Congress of its taxing or spending power. This was our
ruling
in
a
recent
case
wherein
petitioners
Telecommunications and Broadcast Attorneys of the
Philippines (TELEBAP) and GMA Network, Inc. questioned
the validity of Section 92 of B.P. Blg. 881 (otherwise
known as the Omnibus Election Code) requiring radio
and television stations to give free air time to the
Commission on Elections during the campaign period

(Telecommunications and Broadcast Attorneys of the

Philippines, Inc. v. Commission on Elections, 289 SCRA
337 [1998]). The Court held that petitioner TELEBAP did
not have any interest as a taxpayer since the assailed law
did not involve the taxing or spending power of Congress.

Many other rulings have premised the grant or

denial of standing to taxpayers upon whether or not the
case involved a disbursement of public funds by the
legislature. In Sanidad v. Commission on Elections, the
petitioners therein were allowed to bring a taxpayers suit
to question several presidential decrees promulgated by
then President Marcos in his legislative capacity calling for
a national referendum, with the Court explaining that
X x x [i]t is now an ancient rule that the
valid source of a statute Presidential Decrees
are of such nature may be contested by one
who will sustain a direct injury as a result of its
enforcement. At the instance of taxpayers, laws
providing for the disbursement of public funds
may be enjoined, upon the theory that the
expenditure of public funds by an officer of the
State for the purpose of executing an
unconstitutional act constitutes a misapplication of
such funds. The breadth of Presidential Decree
No. 991 carries an appropriation of Five Million
Pesos for the effective implementation of its
purposes.
Presidential Decree No. 1031
appropriates the sum of Eight Million Pesos to
carry out its provisions. The interest of the
aforenamed petitioners as taxpayers in the lawful
expenditure of these amounts of public money
sufficiently clothes them with that personality to
litigate the validity of the Decrees appropriating
said funds x x x.
In still another case, the Court held that petitioners the
Philippine Constitution Association, Inc., a non-profit civic
organization had standing as taxpayers to question the
constitutionality of Republic Act No. 3836 insofar as it
provides for retirement gratuity and commutation of
vacation and sick leaves to Senators and Representatives
and to the elective officials of both houses of Congress

(Philippine Constitution Association, Inc. v. Gimenez).

And in Pascual v. Secretary of Public Works, the Court

allowed petitioner to maintain a taxpayers suit assailing

the constitutional soundness of Republic Act No. 920
appropriating P85,000 for the construction, repair and
improvement of feeder roads within private property. All
these cases involved the disbursement of public funds by
means of a law.
Meanwhile,
in
Bugnay Construction and
Development Corporation v. Laron, the Court declared

that the trial court was wrong in allowing respondent

Ravanzo to bring an action for injunction in his capacity as
a taxpayer in order to question the legality of the contract
of lease covering the public market entered into between
the City of Dagupan and petitioner. The Court declared
that Ravanzo did not possess the requisite standing to
52

bring such taxpayers suit since [o]n its face, and there is
no evidence to the contrary, the lease contract entered
into between petitioner and the City shows that no public
funds have been or will be used in the construction of the
market building.
Coming now to the instant case, it is readily
apparent that there is no exercise by Congress of its
taxing or spending power. The PCCR was created by the
President by virtue of E.O. No. 43, as amended by E.O.
No. 70. Under Section 7 of E.O. No. 43, the amount of P3
million is appropriated for its operational expenses to
be sourced from the funds of the Office of the President.
x x x The appropriations for the PCCR were authorized by
the President, not by Congress. In fact, there was no
appropriation at all. In a strict sense, appropriation has
been defied as nothing more than the legislative
authorization prescribed by the Constitution that money
may be paid out of the Treasury, while appropriation
made by law refers to the act of the legislature setting
apart or assigning to a particular use a certain sum to be
used in the payment of debt or dues from the State to its
creditors. The funds used for the PCCR were taken from
funds intended for the Office of the President, in the
exercise of the Chief Executives power to transfer funds
pursuant to Section 25 (5) of Article VI of the
Constitution.
In the final analysis, it must be stressed that the
Court retains the power to decide whether or not it will
entertain a taxpayers suit . In the case at bar, there being
no exercise by Congress of its taxing or spending power,
petitioner cannot be allowed to question the creation of
the PCCR in his capacity as a taxpayer, but rather, he
must establish that he has a personal and substantial
interest in the case and that he has sustained or will
sustain direct injury as a result of its enforcement. In
other words, petitioner must show that he is a real party
in interest that he will stand to be benefited or injured
by the judgment or that he will be entitled to the avails of
the suit.
Nowhere in his pleadings does petitioner
presume to make such a representation. (Gonzales v.

Narvasa, 337 SCRA 733, Aug. 14, 2000, En Banc

[Gonzaga-Reyes])
112.
What is the meaning of justiciable controversy
as requisite for the proper exercise of the power of
judicial review? Illustrative case.

Held: From a reading of the records it appears to

us that the petition was prematurely filed. Under the
undisputed facts there is as yet no justiciable controversy
for the court to resolve and the petition should have been
dismissed by the appellate court on this ground.
We gather from the allegations of the petition and
that of the petitioners memorandum that the alleged
application for certificate of ancestral land claim (CALC)
filed by the heirs of Carantes under the assailed DENR
special orders has not been granted nor the CALC applied
for, issued. The DENR is still processing the application of
the heirs of Carantes for a certificate of ancestral land
claim, which the DENR may or may not grant. It is
evident that the adverse legal interests involved in this
case are the competing claims of the petitioners and that
of the heirs of Carantes to possess a common portion of a
piece of land. As the undisputed facts stand there is no
justiciable controversy between the petitioners and the
respondents as there is no actual or imminent violation of
the petitioners asserted right to possess the land by

reason of the implementation

administrative issuance.

of

the

questioned

A justiciable controversy has been defined as, a

definite and concrete dispute touching on the legal
relations of parties having adverse legal interests which
may be resolved by a court of law through the application
of a law. Courts have no judicial power to review cases
involving political questions and as a rule, will desist from
taking cognizance of speculative or hypothetical cases,
advisory opinions and in cases that has become moot .
Subject to certain well-defined exceptions courts will not
touch an issue involving the validity of a law unless there
has been a governmental act accomplished or performed
that has a direct adverse effect on the legal right of the
person contesting its validity. In the case of PACU v.
Secretary of Education the petition contesting the validity
of a regulation issued by the Secretary of Education
requiring private schools to secure a permit to operate
was dismissed on the ground that all the petitioners have
permits and are actually operating under the same. The
petitioners questioned the regulation because of the
possibility that the permit might be denied them in the
future. This Court held that there was no justiciable
controversy because the petitioners suffered no wrong by
the implementation of the questioned regulation and
therefore, they are not entitled to relief.
A mere
apprehension that the Secretary of Education will
withdraw the permit does not amount to justiciable
controversy. The questioned regulation in the PACU case
may be questioned by a private school whose permit to
operate has been revoked or one whose application
therefore has been denied.
This Court cannot rule on the basis of petitioners
speculation that the DENR will approve the application of
the heirs of Carantes.
There must be an actual
governmental act which directly causes or will imminently
cause injury to the alleged legal right of the petitioner to
possess the land before the jurisdiction of this Court may
be invoked. There is no showing that the petitioners were
being evicted from the land by the heirs of Carantes under
orders from the DENR. The petitioners allegation that
certain documents from the DENR were shown to them by
the heirs of Carantes to justify eviction is vague, and it
would appear that the petitioners did not verify if indeed
the respondent DENR or its officers authorized the
attempted eviction.
Suffice it to say that by the
petitioners own admission that the respondents are still
processing and have not approved the application of the
heirs of Carantes, the petitioners alleged right to possess
the land is not violated nor is in imminent danger of being
violated, as the DENR may or may not approve Carantes
application. Until such time, the petitioners are simply
speculating that they might be evicted from the premises
at some future time.
Borrowing from the
pronouncements of this Court in the PACU case, They
(the petitioners) have suffered no wrong under the terms
of the law and, naturally need no relief in the form they
now seek to obtain. If indeed the heirs of Carantes are
trying to enter the land and disturbing the petitioners
possession thereof even without prior approval by the
DENR of the claim of the heirs of Carantes, the case is
simply one of forcible entry. (Cutaran v. DENR, 350

SCRA 697, Jan. 31, 2001, 3rd Div. [Gonzaga-Reyes])

113.
What is a justiciable controversy?
political questions?

What are

Held: As a general proposition, a controversy is

justiciable if it refers to a matter which is appropriate for
53

court review. It pertains to issues which are inherently

susceptible of being decided on grounds recognized by
law. Nevertheless, the Court does not automatically
assume jurisdiction over actual constitutional cases
brought before it even in instances that are ripe for
resolution. One class of cases wherein the Court hesitates
to rule on are political questions. The reason is that
political questions are concerned with issues dependent
upon the wisdom, not the legality, of a particular act or
measure being assailed. Moreover, the political question
being a function of the separation of powers, the courts
will not normally interfere with the workings of another
co-equal branch unless the case shows a clear need for
the courts to step in to uphold the law and the
Constitution.

at all in contemplation of law, as where the power is

exercised in an arbitrary and despotic manner by reason
of passion or hostility. Under this definition, a court is
without power to directly decide matters over which full
discretionary authority has been delegated. But while this
Court has no power to substitute its judgment for that of
Congress or of the President, it may look into the question
of whether such exercise has been made in grave abuse
of discretion. A showing that plenary power is granted
either department of government may not be an obstacle
to judicial inquiry, for the improvident exercise or abuse
thereof may give rise to justiciable controversy.

As Tanada v. Angara puts it, political questions

refer to those questions which, under the Constitution,
are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority
has been delegated to the legislative or executive branch
of government. Thus, if an issue is clearly identified by
the text of the Constitution as matters for discretionary
action by a particular branch of government or to the
people themselves then it is held to be a political
question. In the classic formulation of Justice Brennan in
Baker v. Carr, [p]rominent on the surface of any case
held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or
the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion;
or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already
made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on
the one question.

114.
Is the legitimacy of the assumption to the
Presidency of President Gloria Macapagal Arroyo a
political question and, therefore, not subject to judicial
review? Distinguish EDSA People Power I from EDSA
People Power II.

The 1987 Constitution expands the concept of

judicial review by providing that [T]he Judicial power
shall be vested in one Supreme Court and in such lower
courts as may be established by law. Judicial power
includes the duty of the courts of justice to settle actual
controversies involving rights which are legally
demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government. (Article
VIII, Sec. 1 of the 1987 Constitution)
Under this
definition, the Court cannot agree x x x that the issue
involved is a political question beyond the jurisdiction of
this Court to review. When the grant of power is
qualified, conditional or subject to limitations, the issue of
whether the prescribed qualifications or conditions have
been met or the limitations respected, is justiciable - the
problem being one of legality or validity, not its wisdom .
Moreover, the jurisdiction to delimit constitutional
boundaries has been given to this Court. When political
questions are involved, the Constitution limits the
determination as to whether or not there has been a
grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being
questioned.
By grave abuse of discretion is meant simply
capricious or whimsical exercise of judgment that is patent
and gross as to amount to an evasion of positive duty or a
virtual refusal to perform a duty enjoined by law, or to act

(Integrated Bar of the Philippines v. Hon. Ronaldo

B. Zamora, G.R. No. 141284, Aug. 15, 2000, En
Banc [Kapunan])

Held: Respondents rely on the case of Lawyers

League for a Better Philippines and/or Oliver A. Lozano v.
President Corazon C. Aquino, et al. and related cases to

support their thesis that since the cases at bar involve the
legitimacy of the government of respondent Arroyo, ergo,
they present a political question. A more cerebral reading
of the cited cases will show that they are inapplicable. In
the cited cases, we held that the government of former
President Aquino was the result of a successful revolution
by the sovereign people, albeit a peaceful one. No less
than the Freedom Constitution declared that the Aquino
government was installed through a direct exercise of the
power of the Filipino people in defiance of the provisions
of the 1973 Constitution, as amended. It is familiar
learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial
scrutiny for that government automatically orbits out of
the constitutional loop.
In checkered contrast, the
government of respondent Arroyo is not revolutionary in
character. The oath that she took at the EDSA Shrine is
the oath under the 1987 Constitution. In her oath, she
categorically swore to preserve and defend the 1987
Constitution.
Indeed, she has stressed that she is
discharging the powers of the presidency under the
authority of the 1987 Constitution.
In fine, the legal distinction between EDSA People
Power I and EDSA People Power II is clear. EDSA I
involves the exercise of the people power of revolution
which overthrows the whole government. EDSA II is an
exercise of people power of freedom of speech and
freedom of assembly to petition the government for
redress of grievances which only affected the office of the
President.
EDSA I is extra constitutional and the
legitimacy of the new government that resulted from it
cannot be the subject of judicial review, but EDSA II is
intra constitutional and the resignation of the sitting
President that it caused and the succession of the Vice
President as President are subject to judicial review.
EDSA I presented a political question; EDSA II involves
legal questions. X x x
Needless to state, the cases at bar pose legal and
not political questions. The principal issues for resolution
require the proper interpretation of certain provisions in
the 1987 Constitution, notably Section 1 of Article II, and
Section 8 of Article VII, and the allocation of
governmental powers under Section 11 of Article VII. The
issues likewise call for a ruling on the scope of presidential
54

immunity from suit.

They also involve the correct
calibration of the right of petitioner against prejudicial
publicity. As early as the 1803 case of Marbury v.
Madison, the doctrine has been laid down that it is

emphatically the province and duty of the judicial

department to say what the law is x x x. Thus,

respondents invocation of the doctrine of political

question is but a foray in the dark. (Joseph E. Estrada

v. Aniano Desierto, G.R. Nos. 146710-15, March 2,

2001, En Banc [Puno])
115.
Is the Presidents power to call out the armed
forces as their Commander-in-Chief in order to
prevent or suppress lawless violence, invasion or
rebellion subject to judicial review, or is it a political
question? Clarify.
Held: When the President calls the armed forces
to prevent or suppress lawless violence, invasion or
rebellion, he necessarily exercises a discretionary power
solely vested in his wisdom. This is clear from the intent
of the framers and from the text of the Constitution itself.
The Court, thus, cannot be called upon to overrule the
President's wisdom or substitute its own. However, this
does not prevent an examination of whether such power
was exercised within permissible constitutional limits or
whether it was exercised in a manner constituting grave
abuse of discretion. In view of the constitutional intent to
give the President full discretionary power to determine
the necessity of calling out the armed forces, it is
incumbent upon the petitioner to show that the
President's decision is totally bereft of factual basis. The
present petition fails to discharge such heavy burden as
there is no evidence to support the assertion that there
exists no justification for calling out the armed forces.
There is, likewise, no evidence to support the proposition
that grave abuse was committed because the power to
call was exercised in such a manner as to violate the
constitutional provision on civilian supremacy over the
military. In the performance of this Court's duty of
purposeful hesitation before declaring an act of another
branch as unconstitutional, only where such grave abuse
of discretion is clearly shown shall the Court interfere with
the President's judgment.
To doubt is to sustain.

(Integrated Bar of the Philippines v. Hon. Ronaldo

B. Zamora, G.R. No. 141284, Aug. 15, 2000, En
Banc [Kapunan])
116.
Do lower courts have jurisdiction to consider the
constitutionality of a law? If so, how should they act
in the exercise of this jurisdiction?

Held: We stress at the outset that the lower

court had jurisdiction to consider the constitutionality of
Section 187, this authority being embraced in the general
definition of the judicial power to determine what are the
valid and binding laws by the criterion of their conformity
to the fundamental law. Specifically, BP 129 vests in the
regional trial courts jurisdiction over all civil cases in which
the subject of the litigation is incapable of pecuniary
estimation, even as the accused in a criminal action has
the right to question in his defense the constitutionality of
a law he is charged with violating and of the proceedings
taken against him, particularly as they contravene the Bill
of Rights. Moreover, Article VIII, Section 5(2), of the
Constitution vests in the Supreme Court appellate
jurisdiction over final judgments and orders of lower
courts in all cases in which the constitutionality or validity
of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.

In the exercise of this jurisdiction, lower courts

are advised to act with the utmost circumspection,
bearing in mind the consequences of a declaration of
unconstitutionality upon the stability of laws, no less than
on the doctrine of separation of powers.
As the
questioned act is usually the handiwork of the legislative
or the executive departments, or both, it will be prudent
for such courts, if only out of a becoming modesty, to
defer to the higher judgment of this Court in the
consideration of its validity, which is better determined
after a thorough deliberation by a collegiate body and
with the concurrence of the majority of those who
participated in its discussion. (Drilon v. Lim, 235 SCRA

135, 139-140, Aug. 4, 1994, En Banc [Cruz])

117.
What cases are to be heard by the Supreme Court
en banc?
Held: Under Supreme Court Circular No. 2-89,
dated February 7, 1989, as amended by the Resolution of
November 18, 1993:
X x x [t]he following are considered en banc
cases:
1) Cases in which the constitutionality or validity
of any treaty, international or executive
agreement, law, executive order, or
presidential decree, proclamation, order,
instruction, ordinance, or regulation is in
question;
2) Criminal cases in which the appealed decision
imposes the death penalty;
3) Cases raising novel questions of law;
4) Cases affecting ambassadors, other public
ministers and consuls;
5) Cases involving decisions, resolutions or
orders of the Civil Service Commission,
Commission on Elections, and Commission on
Audit;
6) Cases where the penalty to be imposed is the
dismissal of a judge, officer or employee of
the judiciary, disbarment of a lawyer, or
either the suspension of any of them for a
period of more than one (1) year or a fine
exceeding P10,000.00 or both;
7) Cases where a doctrine or principle laid down
by the court en banc or in division may be
modified or reversed;
8) Cases assigned to a division which in the
opinion of at least three (3) members thereof
merit the attention of the court en banc and
are acceptable to a majority of the actual
membership of the court en banc; and
9) All other cases as the court en banc by a
majority of its actual membership may deem
of sufficient importance to merit its attention.

(Firestone Ceramics, Inc. v. Court of Appeals,

334 SCRA 465, 471-472, June 28, 2000, En Banc
[Purisima])
118.
What is fiscal autonomy? The fiscal autonomy
clause?
Held: As envisioned in the Constitution, the fiscal
autonomy enjoyed by the Judiciary, the Civil Service
Commission, the Commission on Audit, the Commission
on Elections, and the Office of the Ombudsman
contemplates a guarantee of full flexibility to allocate and
utilize their resources with the wisdom and dispatch that

55

their needs require. It recognizes the power and authority

to levy, assess and collect fees, fix rates of compensation
not exceeding the highest rates authorized by law for
compensation and pay plans of the government and
allocate and disburse such sums as may be provided by
law or prescribed by them in the course of the discharge
of their functions.
Fiscal autonomy means freedom from outside
control. The Judiciary, the Constitutional Commissions,
and the Ombudsman must have the independence and
flexibility needed in the discharge of their constitutional
duties. The imposition of restrictions and constraints on
the manner the independent constitutional offices allocate
and utilize the funds appropriated for their operations is
anathema to fiscal autonomy and violative not only of the
express mandate of the Constitution but especially as
regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our
constitutional system is based. (Bengzon v. Drilon,

208 SCRA 133, April 15, 1992, En Banc [Gutierrez])

119.
May the Ombudsman validly entertain criminal
charges against a judge of the regional trial court in
connection with his handling of cases before the
court.
Held:

Petitioner criticizes the jurisprudence

(Maceda v. Vasquez, 221 SCRA 464 [1993] and Dolalas v.

Office of the Ombudsman-Mindanao, 265 SCRA 818
[1996]) cited by the Office of the Ombudsman as

erroneous and not applicable to his complaint. He insists

that since his complaint involved a criminal charge against
a judge, it was within the authority of the Ombudsman
not the Supreme Court to resolve whether a crime was
committed and the judge prosecuted therefor.
The petition cannot succeed.
Xxx
We agree with the Solicitor General that the
Ombudsman committed no grave abuse of discretion
warranting the writs prayed for. The issues have been
settled in the case of In Re: Joaquin Borromeo. There,
we laid down the rule that before a civil or criminal action
against a judge for a violation of Arts. 204 and 205
(knowingly rendering an unjust judgment or order) can be
entertained, there must first be a final and authoritative
judicial declaration that the decision or order in question
is indeed unjust. The pronouncement may result from
either:

as to lay the basis for a criminal or administrative

complaint for rendering an unjust judgment or
order. That prerogative belongs to the courts

alone.
This
Ombudsman
jurisprudence
Pelayo to the

having been said, we find that the

acted in accordance with law and
when he referred the cases against Judge
Supreme Court for appropriate action. (De

Vera v. Pelayo, 335 SCRA 281, July 6, 2000, 1st Div.

[Pardo])
120.

What is a Memorandum Decision?

Held: A Memorandum Decision is a specie of

succinctly written decisions by appellate courts in
accordance with the provisions of Section 40, B.P. Blg.
129 on the grounds of expediency, practicality,
convenience and docket status of our courts.

(Francisco v. Permskul, 173 SCRA 324, 333 [1989])

121.

Discuss the validity of Memorandum Decisions.

Held: 1. The constitutional mandate that no

decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the
law on which it is based does not preclude the validity of
memorandum decisions which adopt by reference the
findings of fact and conclusions of law contained in the
decisions of inferior tribunals. X x x
Hence, even in this jurisdiction, incorporation by
reference is allowed if only to avoid the cumbersome
reproduction of the decision of the lower courts, or
portions thereof, in the decisions of the higher court. This
is particularly true when the decision sought to be
incorporated is a lengthy and thorough discussion of the
facts and conclusions arrived at x x x. (Oil and Natural

Gas Commission v. Court of Appeals, 293 SCRA 26,

July 23, 1998 [Martinez])

(a) an action of certiorari or prohibition in a

higher court impugning the validity of the
judgment; or
(b) an administrative proceeding in the Supreme
Court against the judge precisely for
promulgating an unjust judgment or order.

2. We have sustained decisions of lower courts as

having substantially or sufficiently complied with the
constitutional injunction notwithstanding the laconic and
terse manner in which they were written and even if
there [was left] much to be desired in terms of [their]
clarity, coherence and comprehensibility provided that
they eventually set out the facts and the law on which
they were based, as when they stated the legal
qualifications of the offense constituted by the facts
proved, the modifying circumstances, the participation of
the accused, the penalty imposed and the civil liability; or
discussed the facts comprising the elements of the offense
that was charged in the information, and accordingly
rendered a verdict and imposed the corresponding
penalty; or quoted the facts narrated in the prosecutions
memorandum but made their own findings and
assessment of evidence, before finally agreeing with the
prosecutions evaluation of the case.

Likewise, the determination of whether a judge

has maliciously delayed the disposition of the case is also
an exclusive judicial function (In Re: Borromeo, supra, at

We have also sanctioned the use of memorandum

decisions x x x. We have also declared that memorandum
decisions comply with the constitutional mandate.

461).

To repeat, no other entity or official of

the government, not the prosecution or
investigation service of any other branch, not any
functionary thereof, has competence to review a
judicial order or decision whether final and
executory or not and pronounce it erroneous so

In Francisco v. Permskul, however, we laid the

conditions for the validity of memorandum decisions,
thus:
The memorandum decision, to be valid,
cannot incorporate the findings of fact and the
conclusions of law of the lower court only by
56

remote reference, which is to say that the

challenged decision is not easily and immediately
available to the person reading the memorandum
decision. For the incorporation by reference to be
allowed, it must provide for direct access to the
facts and the law being adopted, which must be
contained in a statement attached to the said
decision.
In other words, the memorandum
decision authorized under Section 40 of B.P. Blg.
129 should actually embody the findings of fact
and conclusions of law of the lower court in an
annex attached to and made an indispensable
part of the decision.
It is expected that this requirement will
allay the suspicion that no study was made of the
decision of the lower court and that its decision
was merely affirmed without a prior examination
of the facts and the law on which it is based. The
proximity at least of the annexed statement
should suggest that such examination has been
undertaken. It is, of course, also understood that
the decision being adopted should, to begin with,
comply with Article VIII, Section 14 as no amount
of incorporation or adoption will rectify its
violation.
The Court finds necessary to emphasize
that the memorandum decision should be
sparingly used lest it become an additive excuse
for judicial sloth. It is an additional condition for
the validity of this kind of decision may be
resorted to only in cases where the facts are in
the main accepted by both parties and easily
determinable by the judge and there are no
doctrinal complications involved that will require
an extended discussion of the laws involved. The
memorandum decision may be employed in
simple litigations only, such as ordinary collection
cases, where the appeal is obviously groundless
and deserves no more than the time needed to
dismiss it.
Xxx
Henceforth, all memorandum decisions
shall comply with the requirements herein set
forth as to the form prescribed and the occasions
when they may be rendered. Any deviation will
summon the strict enforcement of Article VIII,
Section 14 of the Constitution and strike down the
flawed judgment as a lawless disobedience.
Tested against these standards, we find that the
RTC decision at bar miserably failed to meet them and,
therefore, fell short of the constitutional injunction. The
RTC decision is brief indeed, but it is starkly hallow,
otiosely written, vacuous in its content and trite in its
form. It achieved nothing and attempted at nothing, not
even at a simple summation of facts which could easily be
done. Its inadequacy speaks for itself.
We cannot even consider or affirm said RTC
decision as a memorandum decision because it failed to
comply with the measures of validity laid down in
Francisco v. Permskul. It merely affirmed in toto the
MeTC decision without saying more.
A decision or
resolution, especially one resolving an appeal, should
directly meet the issues for resolution; otherwise, the
appeal would be pointless

We therefore reiterate our admonition in Nicos

Industrial Corporation v. Court of Appeals, in that while

we conceded that brevity in the writing of decisions is an

admirable trait, it should not and cannot be substituted for
substance; and again in Francisco v. Permskul, where we
cautioned that expediency alone, no matter how
compelling, cannot excuse non-compliance with the
constitutional requirements.
This is not to discourage the lower courts to write
abbreviated and concise decisions, but never at the
expense of scholarly analysis, and more significantly, of
justice and fair play, lest the fears expressed by Justice
Feria as the ponente in Romero v. Court of Appeals come
true, i.e., if an appellate court failed to provide the appeal
the attention it rightfully deserved, said court deprived the
appellant of due process since he was accorded a fair
opportunity to be heard by a fair and responsible
magistrate. This situation becomes more ominous in
criminal cases, as in this case, where not only property
rights are at stake but also the liberty if not the life of a
human being.
Faithful adherence to the requirements of Section
14, Article VIII of the Constitution is indisputably a
paramount component of due process and fair play. It is
likewise demanded by the due process clause of the
Constitution.
The parties to a litigation should be
informed of how it was decided, with an explanation of
the factual and legal reasons that led to the conclusions of
the court. The court cannot simply say that judgment is
rendered in favor of X and against Y and just leave it at
that without any justification whatsoever for its action.
The losing party is entitled to know why he lost, so he
may appeal to the higher court, if permitted, should he
believe that the decision should be reversed. A decision
that does not clearly and distinctly state the facts and the
law on which it is based leaves the parties in the dark as
to how it was reached and is precisely prejudicial to the
losing party, who is unable to pinpoint the possible errors
of the court for review by a higher tribunal. More than
that, the requirement is an assurance to the parties that,
in reaching judgment, the judge did so through the
processes of legal reasoning. It is, thus, a safeguard
against the impetuosity of the judge, preventing him from
deciding ipse dixit. Vouchsafed neither the sword nor the
purse by the Constitution but nonetheless vested with the
sovereign prerogative of passing judgment on the life,
liberty or property of his fellowmen, the judge must
ultimately depend on the power of reason for sustained
public confidence in the justness of his decision.
Thus the Court has struck down as void, decisions
of lower courts and even of the Court of Appeals whose
careless disregard of the constitutional behest exposed
their sometimes cavalier attitude not only to their
magisterial responsibilities but likewise to their avowed
fealty to the Constitution.
Thus, we nullified or deemed to have failed to
comply with Section 14, Article VIII of the Constitution, a
decision, resolution or order which: contained no analysis
of the evidence of the parties nor reference to any legal
basis in reaching its conclusions; contained nothing more
than a summary of the testimonies of the witnesses of
both parties; convicted the accused of libel but failed to
cite any legal authority or principle to support conclusions
that the letter in question was libelous; consisted merely
of one (1) paragraph with mostly sweeping
generalizations and failed to support its conclusion of
parricide; consisted of five (5) pages, three (3) pages of
57

which were quotations from the labor arbiters decision

including the dispositive portion and barely a page (two
[2] short paragraphs of two [2] sentences each) of its
own discussion or reasonings; was merely based on the
findings of another court sans transcript of stenographic
notes, or failed to explain the factual and legal bases for
the award of moral damages.
In the same vein do we strike down as a nullity
the RTC decision in question. (Yao v. Court of Appeals,

344 SCRA 202, Oct. 24, 2000, 1st Div. [Davide])

122.
What are the distinctive features and purpose of a
memorandum decision?
Held: In Francisco v. Permskul (173 SCRA 324,
333 [1989], the Court described [t]he distinctive features

of a memorandum decision are, first, it is rendered by an

appellate court, second, it incorporates by reference the
findings of fact or the conclusions of law contained in the
decision, order, or ruling under review. Most likely, the
purpose is to affirm the decision, although it is not
impossible that the approval of the findings of facts by the
lower court may lead to a different conclusion of law by
the higher court. At any rate, the reason for allowing the
incorporation by reference is evidently to avoid the
cumbersome reproduction of the decision of the lower
court, or portions thereof, in the decision of the higher
court. The idea is to avoid having to repeat in the body of
the latter decision the findings or conclusions of the lower
court since they are being approved or adopted anyway.

(Yao v. Court of Appeals, 344 SCRA 202, Oct. 24,

2000, 1st Div. [Davide])
123.
Does the period for decision making under Section
15, Article VIII, 1987 Constitution, apply to the
Sandiganbayan? Explain.

Haydee Yorac as Acting Chairperson of the COMELEC.

This Court ruled that:
A designation as Acting Chairman is by its very
terms essentially temporary and therefore
revocable at will. No cause need be established
to justify its revocation. Assuming its validity, the
designation of the respondent as Acting Chairman
of the Commission on Elections may be withdrawn
by the President of the Philippines at any time and
for whatever reason she sees fit. It is doubtful if
the
respondent,
having
accepted
such
designation, will not be estopped from challenging
its withdrawal.
The Constitution provides for many safeguards to
the independence of the Commission on Elections,
foremost among which is the security of tenure of
its members. That guarantee is not available to
the respondent as Acting Chairman of the
Commission on Elections by designation of the
President of the Philippines.
Earlier, in Nacionalista Party v. Bautista, a case
decided under the 1935 Constitution, which did not have a
provision prohibiting temporary or acting appointments to
the COMELEC, this Court nevertheless declared
unconstitutional the designation of the Solicitor General as
acting member of the COMELEC. This Court ruled that the
designation of an acting Commissioner would undermine
the independence of the COMELEC and hence violate the
Constitution. We declared then: It would be more in
keeping with the intent, purpose and aim of the framers
of the Constitution to appoint a permanent Commissioner
than to designate one to act temporarily. (Matibag v.

Benipayo, 380 SCRA 49, April 2, 2002, En Banc

[Carpio])

Held: The above provision does not apply to the

Sandiganbayan. The provision refers to regular courts of
lower collegiate level that in the present hierarchy applies
only to the Court of Appeals.

125.
Is the constitutional power of the COA to examine
and audit government banks and agencies exclusive?
Does it preclude a concurrent audit by a private
external auditor?

The Sandiganbayan is a special court of the same

level as the Court of Appeals and possessing all the
inherent powers of a court of justice, with functions of a
trial court.

Held: The resolution of the primordial issue of

whether or not the COA has the sole and exclusive power
to examine and audit government banks involves an
interpretation of Section 2, Article IX-D of the 1987
Constitution. This Section provides as follows:

Thus, the Sandiganbayan is not a regular court

but a special one. (Re: Problem of Delays in Cases

Before the Sandiganbayan, A.M. No. 00-8-05-SC,

Nov. 28, 2001, En Banc [Pardo])
The Constitutional Commissions

124.
Why does the Constitution prohibit the President
from appointing in an acting or temporary capacity
the Chairman and Commissioners of the Constitutional
Commissions? Explain.
Held: [A] temporary or acting appointee does
not enjoy security of tenure, no matter how briefly.
This is the kind of appointment that the
Constitution prohibits the President from making to the
three independent constitutional commissions, including
the COMELEC. Thus, in Brillantes v. Yorac, this Court
struck down as unconstitutional the designation by then
President Corazon Aquino of Associate Commissioner

Sec. 2. (1) The Commission on Audit

shall have the power, authority, and duty to

examine, audit, and settle all accounts pertaining

to the revenue and receipts of, and expenditures

or uses of funds and property, owned and held in
trust by, or pertaining to, the Government, or any
of its subdivisions, agencies, or instrumentalities,
including
government-owned
or
controlled
corporations with original charters, x x x.
(2) The Commission shall have the
exclusive authority, subject to the limitations in
this Article, to define the scope of its audit and
examination, establish the techniques and
methods required therefore, and promulgate
accounting and auditing rules and regulations,
including those for the prevention and
disallowance of irregular, unnecessary, excessive,
extravagant, or unconscionable expenditures, or
uses of government funds and properties.
(Emphasis supplied)

58

The COA vigorously asserts that under the first

paragraph of Section 2, the COA enjoys the sole and
exclusive power to examine and audit all government
agencies, including the DBP. The COA contends this is
similar to its sole and exclusive authority, under the same
paragraph of the same section, to define the scope of its
audit, promulgate auditing rules and regulations, including
rules on the disallowance of unnecessary expenditures of
government agencies. The bare language of Section 2,
however, shows that the COAs power under the first
paragraph is not declared exclusive, while its authority
under the second paragraph is expressly declared
exclusive. There is a significant reason for this marked
difference in language.
During the deliberations of the Constitutional
Commission, Commissioner Serafin Guingona proposed
the addition of the word exclusive in the first paragraph
of Section 2, thereby granting the COA the sole and
exclusive power to examine and audit all government
agencies.
However, the Constitutional Commission
rejected the addition of the word exclusive in the first
paragraph of Section 2 and Guingona was forced to
withdraw his proposal. X x x
Xxx
In sharp contrast, the Constitutional Commission
placed the word exclusive to qualify the authority of the
COA under the second paragraph of the same Section 2.
This word exclusive did not appear in the counterpart
provisions of Section 2 in the 1935 and 1973
Constitutions.
There is no dispute that the COAs
authority under the second paragraph of Section 2 is
exclusive as the language of the Constitution admits of no
other meaning. Thus, the COA has the exclusive authority
to decide on disallowances of unnecessary government
expenditures.
Other government agencies and their
officials, as well as private auditors engaged by them,
cannot in any way intrude into this exclusive function of
the COA.
The qualifying word exclusive in the second
paragraph of Section 2 cannot be applied to the first
paragraph which is another sub-section of Section 2. A
qualifying word is intended to refer only to the phrase to
which it is immediately associated, and not to a phrase
distantly located in another paragraph or sub-section.
Thus, the first paragraph of Section 2 must be read the
way it appears, without the word exclusive, signifying
that non-COA auditors can also examine and audit
government agencies.
Besides, the framers of the
Constitution intentionally omitted the word exclusive in
the first paragraph of Section 2 precisely to allow
concurrent audit by private external auditors.
The clear and unmistakable conclusion from a
reading of the entire Section 2 is that the COAs power to
examine and audit is non-exclusive. On the other hand,
the COAs authority to define the scope of its audit,
promulgate auditing rules and regulations, and disallow
unnecessary expenditures is exclusive.
Xxx
Manifestly, the express language of the
Constitution, and the clear intent of its framers, point to
only one indubitable conclusion the COA does not have
the exclusive power to examine and audit government
agencies. The framers of the Constitution were fully
aware of the need to allow independent private audit of

certain government agencies in addition to the COA audit,

as when there is a private investment in a governmentcontrolled corporation, or when a government corporation
is privatized or publicly listed, or as in the case at bar
when the government borrows money from abroad.
In these instances the government enters the
marketplace and competes with the rest of the world in
attracting investments or loans.
To succeed, the
government must abide with the reasonable business
practices of the marketplace. Otherwise no investor or
creditor will do business with the government, frustrating
government efforts to attract investments or secure loans
that may be critical to stimulate moribund industries or
resuscitate a badly shattered national economy as in the
case at bar. By design the Constitution is flexible enough
to meet these exigencies. Any attempt to nullify this
flexibility in the instances mentioned, or in similar
instances, will be ultra vires, in the absence of a statute
limiting or removing such flexibility.
The
deliberations
of
the
Constitutional
Commission reveal eloquently the intent of Section 2,
Article IX-D of the Constitution. As this Court has ruled
repeatedly, the intent of the law is the controlling factor in
the interpretation of the law .
If a law needs
interpretation, the most dominant influence is the intent
of the law. The intent of the law is that which is
expressed in the words of the law, which should be
discovered within its four corners aided, if necessary, by
its legislative history. In the case of Section 2, Article IXD of the Constitution, the intent of the framers of the
Constitution is evident from the bare language of Section
2 itself.
The deliberations of the Constitutional
Commission confirm expressly and even elucidate further
this intent beyond any doubt whatsoever.
There is another constitutional barrier to the
COAs insistence of exclusive power to examine and audit
all government agencies. The COAs claim clashes directly
with the Central Banks constitutional power of
supervision over banks under Section 20, Article XII of
the Constitution. X x x
Historically, the Central Bank has been conducting
periodic and special examination and audit of banks to
determine the soundness of their operations and the
safety of the deposits of the public. Undeniably, the
Central Banks power of supervision includes the power
to examine and audit banks, as the banking laws have
always recognized this power of the Central Bank. Hence,
the COAs power to examine and audit government banks
must be reconciled with the Central Banks power to
supervise the same banks. The inevitable conclusion is
that the COA and the Central Bank have concurrent
jurisdiction, under the Constitution, to examine and audit
government banks.
However, despite the Central Banks concurrent
jurisdiction over government banks, the COAs audit still
prevails over that of the Central Bank since the COA is the
constitutionally mandated auditor of government banks.
And in matters falling under the second paragraph of
Section 2, Article IX-D of the Constitution, the COAs
jurisdiction is exclusive. Thus, the Central Bank is devoid
of authority to allow or disallow expenditures of
government banks since this function belongs exclusively
to the COA. (Development Bank of the Philippines

v. Commission on Audit, 373 SCRA 356, January

16, 2002, En Banc [Carpio])

59

126.
Between the COAs findings and conclusions and
that of private auditors, which should prevail?
Held:
Moreover, as the constitutionallymandated auditor of all government agencies, the COAs
findings and conclusions necessarily prevail over those of
private auditors, at least insofar as government agencies
and officials are concerned.
The superiority or
preponderance of the COA audit over private audit can be
gleaned from the records of the Constitutional
Commission x x x. The findings and conclusions of the
private auditor may guide private investors or creditors
who require such private audit. Government agencies and
officials, however, remain bound by the findings and
conclusions of the COA, whether the matter falls under
the first or second paragraph of Section 2, unless of
course such findings and conclusions are modified or
reversed by the courts.

127.
May the power of the COA to examine and audit
government agencies be validly taken away from it?
Held: The power of the COA to examine and
audit government agencies, while non-exclusive, cannot
be taken away from the COA. Section 3, Article IX-C of
the Constitution mandates that:
Sec. 3.
No law shall be passed
exempting any entity of the Government or its
subsidiary in any guise whatsoever, or any
investment of public funds, from the jurisdiction
of the Commission on Audit.
The mere fact that private auditors may audit government
agencies does not divest the COA of its power to examine
and
audit
the
same
government
agencies.

(Development Bank of the Philippines v.

Commission on Audit, 373 SCRA 356, January 16,
2002, En Banc [Carpio])
B. CONSTITUTIONAL LAW

128.
What is the effect of declaration
unconstitutionality of a law? Illustrative case.

of

Held: Respondents are seeking a reconsideration

of the Courts 25 January 2000 decision, wherein we
declared Section 8 of Republic Act No. 8551 (RA 8551) to
be violative of petitioners constitutionally mandated right
to security of tenure. As a consequence of our ruling, we
held that petitioners removal as commissioners of the
National Police Commission (NAPOLCOM) and the
appointment of new Commissioners in their stead were
nullities and ordered the reinstatement of petitioners and
the payment of full backwages to be computed from the
date they were removed from office.

null and void ab initio. Rudimentary is the precept that

there can be no valid appointment to a non-vacant
position. Accordingly, Adiongs appointment on 11 March
1998 for a term of two years, pursuant to Section 8 of RA
8551, is null and void. X x x. Therefore, based on our
foregoing disquisition, there should no longer be any
doubt as to the proper execution of our 25 January 2000
decision all the Commissioners appointed under RA
8551 should be removed from office, in order to give way
to the reinstatement of petitioners and respondent
Adiong. (Canonizado v. Aguirre, 351 SCRA 659, Feb.

15, 2001, En Banc [Gonzaga-Reyes])

THE INHERENT POWERS OF THE STATE

Police Power

129.

Define Police Power and clarify its scope.

Held: 1. Police power is an inherent attribute of

sovereignty. It has been defined as the power vested by
the Constitution in the legislature to make, ordain, and
establish all manner of wholesome and reasonable laws,
statutes and ordinances, either with penalties or without,
not repugnant to the Constitution, as they shall judge to
be for the good and welfare of the commonwealth, and
for the subjects of the same. The power is plenary and its
scope is vast and pervasive, reaching and justifying
measures for public health, public safety, public morals,
and the general welfare.
It bears stressing that police power is lodged
primarily in the National Legislature.
It cannot be
exercised by any group or body of individuals not
possessing legislative power. The National Legislature,
however, may delegate this power to the President and
administrative boards as well as the lawmaking bodies of
municipal corporations or local government units . Once
delegated, the agents can exercise only such legislative
powers as are conferred on them by the national
lawmaking body. (Metropolitan Manila Development

Authority v. Bel-Air Village Association, Inc., 328

SCRA 836, 843-844, March 27, 2000, 1st Div.
[Puno])
2. Police power as an inherent attribute of
sovereignty is the power to prescribe regulations to
promote the health, morals, peace, education, good order
or safety and general welfare of the people (Binay v.
Domingo, 201 SCRA 508). The State, through the
legislature, has delegated the exercise of police power to
local government units, as agencies of the State, in order
to effectively accomplish and carry out the declared
objects of their creation (Tatel v. Muncipality of Virac, 207
SCRA 157). This delegation of police power is embodies
in the general welfare clause of the Local Government
Code x x x.

Xxx
An unconstitutional act is not a law; it confers no
rights, imposes no duties, and affords no protection.
Therefore, the unavoidable consequence of the Courts
declaration that Section 8 of RA 8551 violates the
fundamental law is that all acts done pursuant to such
provision shall be null and void, including the removal of
petitioners and Adiong from their positions in the
NAPOLCOM and the appointment of new commissioners in
their stead. When a regular government employee is
illegally dismissed, his position does not become vacant
and the new appointment made in order to replace him is

The scope of police power has been held to be so

comprehensive as to encompass almost all matters
affecting the health, safety, peace, order, morals, comfort
and convenience of the community. Police power is
essentially regulatory in nature and the power to issue
licenses or grant business permits, if exercised for a
regulatory and not revenue-raising purpose, is within the
ambit of this power (Procter and Gamble Phils. v. The

Muncicipality of Jagna, 94 SCRA 894). (Acebedo Optical

Company, Inc. v. Court of Appeals, 329 SCRA 314,
325-326, March 31, 2000, En Banc [Purisima])
60

130.
How should laws that grant the right to exercise a
part of the police power of the State be construed?
Held: Lest the idea gets lost in the shoals of our
subconsciousness, let us not forget that PAGCOR is
engaged in business affected with public interest. The
phrase affected with public interest means that an
industry is subject to control for the public good; it has
been considered as the equivalent of subject to the
exercise of the police power. Perforce, a legislative

franchise to operate jai-alai is imbued with public interest

and involves an exercise of police power. The familiar
rule is that laws which grant the right to exercise a part of
the police power of the state are to be construed strictly
and any doubt must be resolved against the grant. The
legislature is regarded as the guardian of society, and
therefore is not presumed to disable itself or abandon the
discharge of its duty. Thus, courts do not assume that
the legislature intended to part away with its power to
regulate public morals. The presumption is influenced by
constitutional considerations. Constitutions are widely
understood to withhold from legislatures any authority to
bargain away their police power for the power to protect
the public interest is beyond abnegation.

It is stressed that the case at bar does not involve

a franchise to operate a public utility (such as water,
transportation, communication or electricity) the
operation of which undoubtedly redounds to the benefit of
the general public.
What is claimed is an alleged
legislative grant of a gambling franchise a franchise to
operate jai-alai. A statute which legalizes a gambling
activity or business should be strictly construed and every
reasonable doubt must be resolved to limit the powers
and rights claimed under its authority. (Del Mar v.

PAGCOR, 346 SCRA 485, Nov. 29, 2000, En Banc

[Puno])
131.
Discuss why rates to be charged by public utilities
like MERALCO are subject to State regulation.

Held: The regulation of rates to be charged by

public utilities is founded upon the police power of the
State and statutes prescribing rules for the control and
regulations of public utilities are a valid exercise thereof.
When private property is used for a public purpose and is
affected with public interest, it ceases to be juris privati
only and becomes subject to regulation. The regulation is
to promote the common good. Submission to regulation
may be withdrawn by the owner by discontinuing use; but
as long as the use of the property is continued, the same
is subject to public regulation.
In regulating rates charged by public utilities, the
State protects the public against arbitrary and excessive
rates while maintaining the efficiency and quality of
services rendered. However, the power to regulate rates
does not give the State the right to prescribe rates which
are so low as to deprive the public utility of a reasonable
return on investment. Thus, the rates prescribed by
the State must be one that yields a fair return on
the public utility upon the value of the property
performing the service and one that is reasonable
to the public for the service rendered. The fixing of
just and reasonable rates involves a balancing of the
investor and the consumer interests. (Republic of the

Philippines v. Manila Electric Company, G.R. No.

141314, Nov. 15, 2002, 3rd Div. [Puno])

132.
Discuss the nature of the authority of local
government units to issue or grant licenses or
permits.
Held: [T]he issuance of business licenses and
permits by a municipality or city is essentially regulatory in
nature.
The authority, which devolved upon local
government units to issue or grant such licenses or
permits, is essentially in the exercise of the police power
of the State within the contemplation of the general
welfare clause of the Local Government Code. (Acebedo

Optical Company, Inc. v. Court of Appeals, 329

SCRA 314, 335, March 31, 2000, En Banc
[Purisima])
133.
Does Article 263(g) of the Labor Code (vesting
upon the Secretary of Labor the discretion to
determine what industries are indispensable to the
national interest and thereafter, assume jurisdiction
over disputes in said industries) violate the workers
constitutional right to strike?
Held: Said article does not interfere with the
workers right to strike but merely regulates it, when in
the exercise of such right, national interests will be
affected. The rights granted by the Constitution are not
absolute. They are still subject to control and limitation to
ensure that they are not exercised arbitrarily.
The
interests of both the employers and the employees are
intended to be protected and not one of them is given
undue preference.

The Labor Code vests upon the Secretary of Labor

the discretion to determine what industries are
indispensable to national interest.
Thus, upon the
determination of the Secretary of Labor that such industry
is indispensable to the national interest, it will assume
jurisdiction over the labor dispute of said industry. The
assumption of jurisdiction is in the nature of police power
measure. This is done for the promotion of the common
good considering that a prolonged strike or lockout can be
inimical to the national economy. The Secretary of Labor
acts to maintain industrial peace. Thus, his certification
for compulsory arbitration is not intended to impede the
workers right to strike but to obtain a speedy settlement
of the dispute. (Philtread Workers Union [PTWU] v.

Confesor, 269 SCRA 393, March 12, 1997)

134.
May solicitation for religious purposes be subject
to proper regulation by the State in the exercise of
police power?
Held: Whence, even the exercise of religion may
be regulated, at some slight inconvenience, in order that
the State may protect its citizens from injury. Without
doubt, a State may protect its citizens from fraudulent
solicitation by requiring a stranger in the community,
before permitting him publicly to solicit funds for any
purpose, to establish his identity and his authority to act
for the cause which he purports to represent. The State
is likewise free to regulate the time and manner of
solicitation generally, in the interest of public safety,
peace, comfort, or convenience.
It does not follow, therefore, from the
constitutional guarantees of the free exercise of religion
that everything which may be so called can be tolerated .
It has been said that a law advancing a legitimate
governmental interest is not necessarily invalid as one
interfering with the free exercise of religion merely
because it also incidentally has a detrimental effect on the
61

adherents of one or more religion. Thus, the general

regulation, in the public interest, of solicitation, which
does not involve any religious test and does not
unreasonably obstruct or delay the collection of funds, is
not open to any constitutional objection, even though the
collection be for a religious purpose. Such regulation
would not constitute a prohibited previous restraint on the
free exercise of religion or interpose an inadmissible
obstacle to its exercise.

The primary purpose of the statute regulating the

practice of optometry is to insure that optometrical
services are to be rendered by competent and licensed
persons in order to protect the health and physical welfare
of the people from the dangers engendered by unlicensed
practice.
Such purpose may be fully accomplished
although the person rendering the service is employed by
a corporation (Silver v. Lansburgh and Brother, 72 App DC

Even with numerous regulative laws in existence,

it is surprising how many operations are carried on by
persons and associations who, secreting their activities
under the guise of benevolent purposes, succeed in
cheating and defrauding a generous public. It is in fact
amazing how profitable the fraudulent schemes and
practices are to people who manipulate them. The State
has authority under the exercise of its police power to
determine whether or not there shall be restrictions on
soliciting by unscrupulous persons or for unworthy causes
or for fraudulent purposes.
That solicitation of
contributions under the guise of charitable and benevolent
purposes is grossly abused is a matter of common
knowledge. Certainly the solicitation of contributions in
good faith for worthy purposes should not be denied, but
somewhere should be lodged the power to determine
within reasonable limits the worthy from the unworthy .
The objectionable practices of unscrupulous persons are
prejudicial to worthy and proper charities which naturally
suffer when the confidence of the public in campaigns for
the raising of money for charity is lessened or destroyed.
Some regulation of public solicitation is, therefore, in the
public interest.

Furthermore, it was ruled that the employment of

a qualified optometrist by a corporation is not against
public policy (Georgia State Examiners v. Friedmans
Jewelers, 183 Ga 669, 189 SE 238). Unless prohibited by
statutes, a corporation has all the contractual rights that
an individual has (State ex rel. McKittrick v. Gate City
Optical Co., 339 Mo 427, 97 SW 2d 89) and it does not
become the practice of medicine or optometry because of
the presence of a physician or optometrist (Dickson v.
Flynn, 246 App Div 341, 286 NYS 225).
The
manufacturing, selling, trading and bartering of
eyeglasses and spectacles as articles of merchandise do
not constitute the practice of optometry (State ex rel.

To conclude, solicitation for religious purposes

may be subject to proper regulation by the State in the
exercise of police power. (Centeno v. Villalon-

Pornillos, 236 SCRA 197, Sept. 1, 1994 [Regalado])

135.
Does a corporation or individual not himself
licensed, have a right to hire and employ licensed
optometrists? Will the employment of a qualified
optometrist by a corporation go against public policy?
Held: From the foregoing, it is thus evident that
Congress has not adopted a unanimous position on the
matter of prohibition of indirect practice of optometry by
corporations, specifically on the hiring and employment of
licensed optometrists by optical corporations. It is clear
that Congress left the resolution of such issue for judicial
determination, and it is therefore proper for this Court to
resolve the issue.
Even in the United States, jurisprudence varies
and there is a conflict of opinions among the federal
courts as to the right of a corporation or individual not
himself licensed, to hire and employ licensed optometrists

(128 ALR 586).

Courts have distinguished between optometry as

a learned profession in the category of law and medicine,
and optometry as a mechanical art. And, insofar as the
courts regartd optometry as merely a mechanical art, they
have tended to find nothing objectionable in the making
and selling of eyeglasses, spectacles and lenses by
corporations so long as the patient is actually examined
and prescribed for by qualified practitioners (House of

$8.50 Eyeglasses, Inc. v. State Board of Optometry, 288

Ala 349, 261 So 2d 27; State ex. Rel. Board of Optometry
v. Sears Roebuck and Co., 102 Ariz 175, 427 Pd 126).

77, 11 F2d 518, 128 ALR 582; 61 Am Jur 2d 289).

Brother v. Beck Jewelry Enterprises, Inc. 220 Ind. 276, 41

NE 2d 622, 141 ALR 876 [61 Am Jur 187]; Kindy
Opticians, Inc. v. State Board of Examiners in Optometry,
1939, 291 Mich 152, 289 NW 112, 113; New Jersey State
Bd. Of Optometrists v. S.S. Kresge Co., 113 NJL 287, 174
A 353).
Xxx
To accomplish the objective of the regulation, a
state may provide by statute that corporations cannot sell
eyeglasses, spectacles, and lenses unless a duly licensed
physician or a duly qualified optometrist is in charge of,
and in personal attendance at the place where such
articles are sold (Roschen v. Ward, 279 US 337, 73 L Ed
722, 49 S Ct 336). In such a case, the patients primary
and essential safeguard lies in the optometrists control of
the treatment by means of prescription and preliminary
and final examination (Small and Maine Board of

Registration and Examination in Optometry, 293 A 2d

786).

In analogy, it is noteworthy that private hospitals

are maintained by corporations incorporated for the
purpose of furnishing medical and surgical treatment. In
the course of providing such treatments, these
corporations employ physicians, surgeons and medical
practitioners, in the same way that in the course of
manufacturing and selling eyeglasses, eye frames and
optical lenses, optical shops hire licensed optometrists to
examine, prescribe and dispense ophthalmic lenses. No
one has ever charged that these corporations are engaged
in the practice of medicine. There is indeed no valid basis
for treating corporations engaged in the business of
running optical shops differently. (Acebedo Optical

Company, Inc. v. Court of Appeals, 329 SCRA 314,

331-333, March 31, 2000, En Banc [Purisima])

136.
What powers of the State are involved in the
implementation of the Comprehensive Agrarian
Reform Law (CARL)? Discuss.
Held: The implementation of the CARL is an
exercise of the States police power and the power of
eminent domain. To the extent that the CARL prescribes
retention limits to the landowners, there is an exercise of
police power for the regulation of private property in
accordance with the Constitution. But where, to carry out
62

such regulation, the owners are deprived of lands they

own in excess of the maximum area allowed, there is also
a taking under the power of eminent domain. The taking
contemplated is not a mere limitation of the use of the
land. What is required is the surrender of the title to and
physical possession of the said excess and all beneficial
rights accruing to the owner in favor of the farmer
beneficiary. The Bill of Rights provides that [n]o person
shall be deprived of life, liberty or property without due
process of law. The CARL was not intended to take away
property without due process of law. The exercise of the
power of eminent domain requires that due process be
observed in the taking of private property. (Roxas &

Co., Inc. v. Court of Appeals, 321 SCRA 106, Dec.

17, 1999, En Banc [Puno])
The Power of Eminent Domain

137.

What is Eminent Domain?

Held: 1. Eminent domain is the right or power

of a sovereign state to appropriate private property to
particular uses to promote public welfare . It is an
indispensable attribute of sovereignty; a power grounded
in the primary duty of government to serve the common
need and advance the general welfare. Thus, the right of
eminent domain appertains to every independent
government without the necessity for constitutional
recognition. The provisions found in modern constitutions
of civilized countries relating to the taking of property for
the public use do not by implication grant the power to
the government, but limit a power which would otherwise
be without limit. Thus, our own Constitution provides that
[p]rivate property shall not be taken for public use
without just compensation.
Furthermore, the due
process and equal protection clauses act as additional
safeguards against the arbitrary exercise of this
governmental power.
Since the exercise of the power of eminent
domain affects an individuals right to private property, a
constitutionally-protected right necessary for the
preservation and enhancement of personal dignity and
intimately connected with the rights to life and liberty , the
need for its circumspect operation cannot be
overemphasized. In City of Manila v. Chinese Community
of Manila we said:
The exercise of the right of eminent
domain, whether directly by the State, or by its
authorized agents, is necessarily in derogation of
private rights, and the rule in that case is that the
authority must be strictly construed. No species
of property is held by individuals with greater
tenacity, and none is guarded by the Constitution
and the laws more sedulously, than the right to
the freehold of inhabitants. When the legislature
interferes with that right, and, for greater public
purposes, appropriates the land of ah individual
without his consent, the plain meaning of the law
should
not
be
enlarged
by
doubt[ful]
interpretation. (Bensley v. Mountainlake Water

Co., 13 Cal., 306 and cases cited [73 Am. Dec.,

576])
The statutory power of taking property from the
owner without his consent is one of the most delicate
exercise of governmental authority. It is to be watched
with jealous scrutiny. Important as the power may be to
the government, the inviolable sanctity which all free

constitutions attach to the right of property of the citizens,

constrains the strict observance of the substantial
provisions of the law which are prescribed as modes of
the exercise of the power, and to protect it from abuse x x
x.
The power of eminent domain is essentially
legislative in nature. It is firmly settled, however, that
such power may be validly delegated to local government
units, other public entities and public utilities, although
the scope of this delegated legislative power is necessarily
narrower than that of the delegating authority and may
only be exercised in strict compliance with the terms of
the delegating law. (Heirs of Alberto Suguitan v. City

of Mandaluyong, 328 SCRA 137, 144-146, March

14, 2000, 3rd Div. [Gonzaga-Reyes])
2. Eminent domain is a fundamental State power
that is inseparable from sovereignty. It is governments
right to appropriate, in the nature of a compulsory sale to
the State, private property for public use or purpose.
Inherently possessed by the national legislature, the
power of eminent domain may be validly delegated to
local governments, other public entities and public
utilities.
For the taking of private property by the
government to be valid, the taking must be for public
purpose and there must be just compensation. (Moday

v. Court of Appeals, 268 SCRA 586, February 20,

1997)
138.
Discuss the nature of the right of eminent domain
and the limitations thereof.

Held: The right of eminent domain is usually

understood to be an ultimate right of the sovereign power
to appropriate any property within its territorial
sovereignty for a public purpose. Fundamental to the
independent existence of a State, it requires no
recognition by the Constitution, whose provisions are
taken as being merely confirmatory of its presence and as
being regulatory, at most, in the due exercise of the
power. In the hands of the legislature, the power is
inherent, its scope matching that of taxation, even that of
police power itself, in many respects. It reaches to every
form of property the State needs for public use and, as an
old case so puts it, all separate interests of individuals in
property are held under a tacit agreement or implied
reservation vesting upon the sovereign the right to
resume the possession of the property whenever the
public interest so requires it.
The ubiquitous character of eminent domain is
manifest in the nature of the expropriation proceedings.
Expropriation proceedings are not adversarial in the
conventional sense, for the condemning authority is not
required to assert any conflicting interest in the property.
Thus, by filing the action, the condemnor in effect merely
serves notice that it is taking title and possession of the
property, and the defendant asserts title or interest in the
property, not to prove a right to possession, but to prove
a right to compensation for the taking.
Obviously, however, the power is not without its
limits: first, the taking must be for public use, and second,
that just compensation must be given to the private
owner of the property. These twin proscriptions have
their origin in the recognition of the necessity for
achieving balance between the State interests, on the one
hand, and private rights, upon the other hand, by
effectively restraining the former and affording protection
to the latter. In determining public use, two approaches
63

are utilized the first is public employment or the actual

use by the public, and the second is public advantage or
benefit. It is also useful to view the matter as being
subject to constant growth, which is to say that as society
advances, its demands upon the individual so increases,
and each demand is a new use to which the resources of
the individual may be devoted.
(Republic of the

Philippines v. The Hon. Court of Appeals, G.R. No.

146587, July 2, 2002, 1st Div. [Vitug])
139.
State some limitations on the exercise of the
power of Eminent Domain.

Held: The limitations on the power of eminent

domain are that the use must be public, compensation
must be made and due process of law must be observed.
The Supreme Court, taking cognizance of such issues as
the adequacy of compensation, necessity of the taking
and the public use character or the purpose of the taking,
has ruled that the necessity of exercising eminent domain
must be genuine and of a public character. Government
may not capriciously choose what private property should
be taken. (Moday v. Court of Appeals, 268 SCRA

586, February 20, 1997)

140.
Discuss the expanded notion of public use in
eminent domain proceedings.
Held: The City of Manila, acting through its
legislative branch, has the express power to acquire
private lands in the city and subdivide these lands into
home lots for sale to bona fide tenants or occupants
thereof, and to laborers and low-salaried employees of the
city.
That only a few could actually benefit from the
expropriation of the property does not diminish its public
character. It is simply not possible to provide all at once
land and shelter for all who need them.
Corollary to the expanded notion of public use,
expropriation is not anymore confined to vast tracts of
land and landed estates. It is therefore of no moment
that the land sought to be expropriated in this case is less
than half a hectare only.
Through the years, the public use requirement in
eminent domain has evolved into a flexible concept,
influenced by changing conditions.
Public use now
includes the broader notion of indirect public benefit or
advantage, including in particular, urban land reform and
housing. (Filstream International Incorporated v.

CA, 284 SCRA 716, Jan. 23, 1998 [Francisco])

141.
What is the meaning of public use in eminent
domain proceedings? Illustrative case.
Held:
This Court holds that respondent
(Philippine Export Processing Zone) has the legal authority
to expropriate the subject Lot 1406-B and that the same
was for a valid public purpose. In Sumulong v. Guerrero,
this Court has ruled that,
The public use requirement for a valid
exercise of the power of eminent domain is a
flexible and evolving concept influenced by
changing conditions.
In this jurisdiction, the
statutory and judicial trend has been summarized
as follows:

This Court has ruled that the

taking to be valid must be for public use.
There was a time when it was felt that a
literal meaning should be attached to
such a requirement. Whatever project is
undertaken must be for the public to
enjoy, as in the case of streets or parks.
Otherwise, expropriation is not allowable.
It is not anymore. As long as the purpose
of the taking is public, then the power of
eminent domain comes into play . . . It is
accurate to state then that at present
whatever may be beneficially employed
for the general welfare satisfies the
requirement of public use.
(Heirs of

Juancho Ardona v. Reyes, 125 SCRA 220

[1983] at 234-235 quoting E. Fernando,
the Constitution of the Philippines 523-4
[2nd Ed. 1977])
The term public use has acquired a
more comprehensive coverage. To the literal
import of the term signifying strict use or
employment by the public has been added the
broader notion of indirect public benefit or
advantage.
In Manosca v. Court of Appeals, this Court has
also held that what ultimately emerged is a concept of
public use which is just as broad as public welfare.
Respondent PEZA expropriated the subject parcel
of land pursuant to Proclamation No. 1980 x x x issued by
former President Ferdinand Marcos.
Meanwhile, the
power of eminent domain of respondent is contained in its
original charter, Presidential Decree No. 66 x x x.
Accordingly, subject Lot 1406-B was expropriated
for the construction . . . of terminal facilities, structures
and approaches thereto. The authority is broad enough
to give the respondent substantial leeway in deciding for
what public use the expropriated property would be
utilized. Pursuant to this broad authority, respondent
leased a portion of the lot to commercial banks while the
rest was made a transportation terminal. Said public
purposes were even reaffirmed by Republic Act No. 7916,
a law amending respondent PEZAs original charter x x x.
In Manila Railroad Co. v. Mitchel, this Court has
ruled that in the exercise of eminent domain, only as
much land can be taken as is necessary for the legitimate
purpose of the condemnation. The term necessary, in
this connection, does not mean absolutely indispensable
but requires only a reasonable necessity of the taking for
the stated purpose, growth and future needs of the
enterprise. The respondent cannot attain a self-sustaining
and viable ECOZONE if inevitable needs in the expansion
in the surrounding areas are hampered by the mere
refusal of the private landowners to part with their
properties. The purpose of creating an ECOZONE and
other facilities is better served if respondent directly owns
the areas subject of the expansion program.
X x x The expropriation of Lot 1406-B for the
purpose of being leased to banks and for the construction
of a terminal has the purpose of making banking and
transportation facilities easily accessible to the persons
working at the industries located in PEZA.
The
expropriation of adjacent areas therefore comes as a
matter of necessity to bring life to the purpose of the law.
In such a manner, PEZAs goal of being a major force in
64

the economic development of the country would be

realized. Furthermore, this Court has already ruled that:
X x x [T]he Legislature may directly
determine the necessity for appropriating private
property for a particular improvement for public
use, and it may select the exact location of the
improvement. In such a case, it is well-settled
that the utility of the proposed improvement, the
existence of the public necessity for its
construction, the expediency of constructing it,
the suitableness of the location selected, are all
questions exclusively for the legislature to
determine, and the courts have no power to
interfere or to substitute their own views for those
of the representatives of the people.
In the absence of some constitutional or
statutory provisions to the contrary, the necessity
and expediency of exercising the right of eminent
domain are questions essentially political and not
judicial in their character. (City of Manila v.

Chinese Community of Manila, 40 Phil. 349

[1919])

Inasmuch as both Presidential Decree No. 66 and Republic

Act No. 7916, bestow respondent with authority to
develop terminal facilities and banking centers, this Court
will not question the respondents lease of certain portions
of the expropriated lot to banks, as well as the
construction of terminal facilities.
Petitioner contends that respondent is bound by
the representations of its Chief Civil Engineer when the
latter testified before the trial court that the lot was to be
devoted for the construction of government offices.
Anent this issue, suffice it to say that PEZA can vary the
purpose for which a condemned lot will be devoted to,
provided that the same is for public use. Petitioner
cannot impose or dictate on the respondent what facilities
to establish for as long as the same are for public
purpose. (Estate of Salud Jimenez v. PEZA, 349

SCRA 240, Jan. 16, 2001, 2nd Div. [De Leon])

142.
Discuss the meaning of just compensation in
eminent domain proceedings. Does it include the
payment of interest and, if so, how is it to be
computed?
Held: 1. The constitutional limitation of just
compensation is considered to be the sum equivalent to
the market value of the property, broadly described to be
the price fixed by the seller in open market in the usual
and ordinary course of legal action and competition or the
fair value of the property as between one who receives,
and one who desires to sell it, fixed at the time of the
actual taking by the government. Thus, if property is
taken for public use before compensation is deposited
with the court having jurisdiction over the case, the final
compensation must include interests on its just value to
be computed from the time the property is taken to the
time when compensation is actually paid or deposited with
the court. In fine, between the taking of the property and
the actual payment, legal interests accrue in order to
place the owner in a position as good as (but not better
than) the position he was in before the taking occurred .

(Republic of the Philippines v. The Hon. Court of

Appeals, G.R. No. 146587, July 2, 2002, 1st Div.
[Vitug])

2. We have ruled that the concept of just

compensation
embraces
not
only
the
correct
determination of the amount to be paid to the owners of
the land, but also the payment of the land within a
reasonable time from its taking.
Without prompt
payment, compensation cannot be considered just
inasmuch as the property owner is made to suffer the
consequences of being immediately deprived of his land
while being made to wait for a decade or more before
actually receiving the amount necessary to cope with his
loss. Payment of just compensation should follow as a
matter of right immediately after the order of
expropriation is issued. Any delay in payment must be
counted from said order.
However, the delay to
constitute a violation of due process must be
unreasonable and inexcusable; it must be deliberately
done by a party in order to defeat the ends of justice.

(Estate of Salud Jimenez v. PEZA, 349 SCRA 240,

Jan. 16, 2001, 2nd Div. [De Leon])

143.
The constitutionality of Sec. 92 of B.P. Blg. 881
(requiring radio and television station owners and
operators to give to the Comelec radio and television
time free of charge) was challenged on the ground,
among others, that it violated the due process clause
and the eminent domain provision of the Constitution
by taking airtime from radio and television
broadcasting stations without payment of just
compensation. Petitioners claim that the primary
source of revenue of radio and television stations is
the sale of airtime to advertisers and that to require
these stations to provide free airtime is to authorize a
taking which is not a de minimis temporary limitation
or restraint upon the use of private property. Will
you sustain the challenge?
Held: All broadcasting, whether by radio or by
television stations, is licensed by the government.
Airwave frequencies have to be allocated as there are
more individuals who want to broadcast than there are
frequencies to assign. A franchise is thus a privilege
subject, among other things, to amendment by Congress
in accordance with the constitutional provision that any
such franchise or right granted x x x shall be subject to
amendment, alteration or repeal by the Congress when
the common good so requires. (Art. XII, Sec. 11)
Indeed, provisions for Comelec Time have been
made by amendment of the franchises of radio and
television broadcast stations and such provisions have not
been thought of as taking property without just
compensation. Art. XII, Sec. 11 of the Constitution
authorizes the amendment of franchises for the common
good. What better measure can be conceived for the
common good than one for free airtime for the benefit not
only of candidates but even more of the public,
particularly the voters, so that they will be fully informed
of the issues in an election? [I]t is the right of the
viewers and listeners, not the right of the broadcasters,
which is paramount.
Nor indeed can there be any constitutional
objection to the requirement that broadcast stations give
free airtime.
Even in the United States, there are
responsible scholars who believe that government controls
on broadcast media can constitutionally be instituted to
ensure diversity of views and attention to public affairs to
further the system of free expression. For this purpose,
broadcast stations may be required to give free airtime to
candidates in an election.
65

In truth, radio and television broadcasting

companies, which are given franchises, do not own the
airwaves and frequencies through which they transmit
broadcast signals and images. They are merely given the
temporary privilege of using them. Since a franchise is a
mere privilege, the exercise of the privilege may
reasonably be burdened with the performance by the
grantee of some form of public service.

an expropriation suit on the ground that there was no

prior offer precludes another suit raising the same issue; it
cannot, however, bar the State or its agent from
thereafter complying with this requirement, as prescribed
by law, and subsequently exercising its power of eminent
domain over the same property.
(Municipality of

In the granting of the privilege to operate

broadcast stations and thereafter supervising radio and
television stations, the State spends considerable public
funds in licensing and supervising such stations. It would
be strange if it cannot even require the licensees to
render public service by giving free airtime.

145.
Discuss how expropriation may be initiated, and
the two stages in expropriation.

The claim that petitioner would be losing

P52,380,000.00 in unrealized revenue from advertising is
based on the assumption that airtime is finished product
which, it is said, become the property of the company, like
oil produced from refining or similar natural resources
after undergoing a process for their production. As held
in Red Lion Broadcasting Co. v. F.C.C., which upheld the
right of a party personally attacked to reply, licenses to
broadcast do not confer ownership of designated
frequencies, but only the temporary privilege of using
them. Consequently, a license permits broadcasting,
but the licensee has no constitutional right to be the one
who holds the license or to monopolize a radio frequency
to the exclusion of his fellow citizens. There is nothing in
the First Amendment which prevents the government
from requiring a licensee to share his frequency with
others and to conduct himself as a proxy or fiduciary with
obligations to present those views and voices which are
representative of his community and which would
otherwise, by necessity, be barred from the airwaves. As
radio and television broadcast stations do not own the
airwaves, no private property is taken by the requirement
that they provide airtime to the Comelec. (TELEBAP,

The expropriation of lands consists of two stages.

As explained in Municipality of Binan v. Garcia, reiterated

Inc. v. COMELEC, 289 SCRA 337, April 21, 1998

[Mendoza])
144.
May eminent domain be barred by "res judicata"
or "law of the case"?

Held: The principle of res judicata, which finds

application in generally all cases and proceedings, cannot
bar the right of the State or its agents to expropriate
private property. The very nature of eminent domain, as
an inherent power of the State, dictates that the right to
exercise the power be absolute and unfettered even by a
prior judgment or res judicata. The scope of eminent
domain is plenary and, like police power, can reach every
form of property which the State might need for public
use. All separate interests of individuals in property are
held of the government under this tacit agreement or
implied reservation.
Notwithstanding the grant to
individuals, the eminent domain, the highest and most
exact idea of property, remains in the government, or in
the aggregate body of the people in their sovereign
capacity; and they have the right to resume the
possession of the property whenever the public interest
requires it.
Thus, the State or its authorized agent
cannot be forever barred from exercising said right by
reason alone of previous non-compliance with any legal
requirement.
While the principle of res judicata does not
denigrate the right of the State to exercise eminent
domain, it does apply to specific issues decided in a
previous case. For example, a final judgment dismissing

Paranaque v. V.M. Realty Corporation, 292 SCRA

678, July 20, 1998 [Panganiban])

Held: Expropriation may be initiated by court

action or by legislation.
In both instances, just
compensation is determined by the courts.

in National Power Corp. v. Jocson:

The first is concerned with the

determination of the authority of the plaintiff to
exercise the power of eminent domain and the
propriety of its exercise in the context of the facts
involved in the suit. It ends with an order, if not
dismissal of the action, "of condemnation
declaring that the plaintiff has a lawful right to
take the property sought to be condemned, for
the public use or purpose declared in the
complaint,
upon
the
payment
of
just
compensation to be determined as of the date of
the filing of the complaint" x x x.
The second phase of the eminent domain
action is concerned with the determination by the
court of the just compensation for the property
sought to be taken. This is done by the court
with the assistance of not more than three (3)
commissioners x x x.
It is only upon the completion of these two stages
that expropriation is said to have been completed.

(Republic v. Salem Investment Corporation, et. al.,

G.R. No. 137569, June 23, 2000, 2nd Div.
[Mendoza])
146.
May the owner of the property expropriated still
dispose of that property before the payment of just
compensation? When does title over the property
expropriated pass to the expropriator?
Held: 1. [I]t is only upon payment of just
compensation that title over the property passes to the
government. Therefore, until the action for expropriation
has been completed and terminated, ownership over the
property being expropriated remains with the registered
owner. Consequently, the latter can exercise all rights
pertaining to an owner, including the right to dispose of
his property, subject to the power of the State ultimately
to acquire it through expropriation. (Republic v. Salem

Investment Corporation, et. al., G.R. No. 137569,

June 23, 2000, 2nd Div. [Mendoza])

2. The De la Ramas make much of the fact that

ownership of the land was transferred to the government
because the equitable and the beneficial title was already
acquired by it in 1983, leaving them with only the naked
title. However, as this Court held in Association of Small

Landowners in the Phil., Inc. v. Secretary of Agrarian

Reform:

66

The recognized rule, indeed, is that title

to the property expropriated shall pass from the
owner to the expropriator only upon full payment
of the just compensation. Jurisprudence on this
settled principle is consistent both here and in
other democratic jurisdictions. X x x

(Republic v. Salem Investment Corporation, et. al.,

G.R. No. 137569, June 23, 2000, 2nd Div.
[Mendoza])
147.
Do the two (2) stages in expropriation apply only
to judicial, and not to legislative, expropriation?
Held: We see no point in distinguishing between
judicial and legislative expropriation as far as the two
stages mentioned above are concerned. Both involve
these stages and in both the process is not completed
until payment of just compensation is made. (Republic

v. Salem Investment Corporation, et. al., G.R. No.

137569, June 23, 2000, 2nd Div. [Mendoza])

148.
Is prior unsuccessful negotiation a condition
precedent for the exercise of eminent domain?
Held: Citing Iron and Steel Authority v. Court of
Appeals, petitioner insists that before eminent domain
may be exercised by the state, there must be a showing
of prior unsuccessful negotiation with the owner of the
property to be expropriated.
This contention is not correct.
the Solicitor General the current
delegated authority to exercise the
domain is found in Section 12, Book
Administrative Code, which provides:

As pointed out by
effective law on
power of eminent
III of the Revised

SEC. 12. Power of Eminent Domain

The President shall determine when it is
necessary or advantageous to exercise the power
of eminent domain in behalf of the National
Government, and direct the Solicitor General,
whenever he deems the action advisable, to
institute expropriation proceedings in the proper
court.
The foregoing provision does not require prior
unsuccessful negotiation as a condition precedent for the
exercise of eminent domain. In Iron and Steel Authority
v. Court of Appeals, the President chose to prescribe this
condition as an additional requirement instead. In the
instant case, however, no such voluntary restriction was
imposed.
(SMI Development Corporation v.

Republic, 323 SCRA 862, Jan. 28, 2000, 3rd Div.

[Panganiban])
149.
When may the property owner be entitled to the
return of the expropriated property in eminent domain
cases?
Held: 1. In insisting on the return of the
expropriated property, respondents would exhort on the
pronouncement in Provincial Government of Sorsogon v.
Vda. De Villaroya where the unpaid landowners were
allowed the alternative remedy of recovery of the property
there in question. It might be borne in mind that the case
involved the municipal government of Sorsogon, to which
the power of eminent domain is not inherent, but merely
delegated and of limited application. The grant of the
power of eminent domain to local governments under
Republic Act No. 7160 cannot be understood as being the
pervasive and all-encompassing power vested in the

legislative branch of government. For local governments

to be able to wield the power, it must, by enabling law, be
delegated to it by the national legislature, but even then,
this delegated power of eminent domain is not, strictly
speaking, a power of eminent, but only of inferior, domain
or only as broad or confined as the real authority would
want it to be.
Thus, in Valdehueza v. Republic where the private
landowners had remained unpaid ten years after the
termination of the expropriation proceedings, this Court
ruled
The points in dispute are whether such
payment can still be made and, if so, in what
amount. Said lots have been the subject of
expropriation proceedings. By final and executory
judgment in said proceedings, they were
condemned for public use, as part of an airport,
and ordered sold to the government. x x x It
follows that both by virtue of the judgment, long
final, in the expropriation suit, as well as the
annotations upon their title certificates, plaintiffs
are not entitled to recover possession of their
expropriated lots which are still devoted to the
public use for which they were expropriated but
only to demand the fair market value of the same.
Said relief may be granted under
plaintiffs prayer for: such other remedies, which
may be deemed just and equitable under the
premises.
The Court proceeded to reiterate its pronouncement in
Alfonso v. Pasay City where the recovery of possession of
property taken for public use prayed for by the unpaid
landowner was denied even while no requisite
expropriation proceedings were first instituted.
The
landowner was merely given the relief of recovering
compensation for his property computed at its market
value at the time it was taken and appropriated by the
State.
The judgment rendered by the Bulacan RTC in
1979 on the expropriation proceedings provides not only
for the payment of just compensation to herein
respondents but likewise adjudges the property
condemned in favor of petitioner over which parties, as
well as their privies, are bound. Petitioner has occupied,
utilized and, for all intents and purposes, exercised
dominion over the property pursuant to the judgment.
The exercise of such rights vested to it as the condemnee
indeed has amounted to at least a partial compliance or
satisfaction of the 1979 judgment, thereby preempting
any claim of bar by prescription on grounds of nonexecution. In arguing for the return of their property on
the basis of non-payment, respondents ignore the fact
that the right of the expropriatory authority is far from
that of an unpaid seller in ordinary sales, to which the
remedy of rescission might perhaps apply. An in rem
proceeding, condemnation acts upon the property. After
condemnation, the paramount title is in the public under a
new and independent title; thus, by giving notice to all
claimants to a disputed title, condemnation proceedings
provide a judicial process for securing better title against
all the world than may be obtained by voluntary
conveyance. (Republic of the Philippines v. The Hon.

Court of Appeals, G.R. No. 146587, July 2, 2002,

1st Div. [Vitug])

67

2. Though the respondent has committed a

misdeed to petitioner, we cannot, however, grant the
petitioners prayer for the return of the expropriated Lot
No. 1406-B. The Order of expropriation dated July 11,
1991, has long become final and executory. Petitioner
cited Provincial Government of Sorsogon v. Rosa E. Vda.
De Villaroya to support its contention that it is entitled to
a return of the lot where this Court ruled that under
ordinary circumstances, immediate return to the owners
of the unpaid property is the obvious remedy. However,
the said statement was not the ruling in that case. As in
other cases where there was no prompt payment by the
government, this Court declared in Sorsogon that the
Provincial Government of Sorsogon is expected to
immediately pay as directed. Should any further delay be
encountered, the trial court is directed to seize any
patrimonial property or cash savings of the province in the
amount necessary to implement this decision. However,
this Court also stressed and declared in that case that in
cases where land is taken for public use, public interest,
however, must be considered.
(Estate of Salud

Jimenez v. PEZA, 349 SCRA 240, Jan. 16, 2001, 2nd

Div. [De Leon])
The Power of Taxation

150.
Can taxes
compensation?

be

subject

to

off-setting

or

Held: Taxes cannot be subject to compensation

for the simple reason that the government and the
taxpayer are not creditors and debtors of each other .
There is a material distinction between a tax and debt.
Debts are due to the Government in its corporate
capacity, while taxes are due to the Government in its
sovereign capacity. It must be noted that a distinguishing
feature of a tax is that it is compulsory rather than a
matter of bargain. Hence, a tax does not depend upon
the consent of the taxpayer. If any taxpayer can defer
the payment of taxes by raising the defense that it still
has a pending claim for refund or credit, this would
adversely affect the government revenue system. A
taxpayer cannot refuse to pay his taxes when they fall due
simply because he has a claim against the government or
that the collection of a tax is contingent on the result of
the lawsuit it filed against the government. (Philex

Mining Corporation v. Commissioner of Internal

Revenue, 294 SCRA 687, Aug. 28, 1998 [Romero])

151.
Under Article VI, Section 28, paragraph 3 of the
1987 Constitution, "[C]haritable institutions, churches
and parsonages or convents appurtenant thereto,
mosques, non-profit cemeteries, and all lands,
buildings, and improvements, actually, directly and
exclusively used for religious, charitable or educational
purposes shall be exempt from taxation." YMCA
claims that the income earned by its building leased to
private entities and that of its parking space is
likewise covered by said exemption. Resolve.
Held:
The debates, interpellations and
expressions of opinion of the framers of the Constitution
reveal their intent that which, in turn, may have guided
the people in ratifying the Charter. Such intent must be
effectuated.
Accordingly, Justice Hilario G. Davide, Jr., a
former constitutional commissioner, who is now a member
of this Court, stressed during the Concom debates that "x
x x what is exempted is not the institution itself x x x;

those exempted from real estate taxes are lands, buildings

and improvements actually, directly and exclusively used
for religious, charitable or educational purposes. Father
Joaquin G. Bernas, an eminent authority on the
Constitution and also a member of the Concom, adhered
to the same view that the exemption created by said
provision pertained only to property taxes.
In his treatise on taxation, Mr. Justice Jose C.
Vitug concurs, stating that "[t]he tax exemption covers
property taxes only." (Commissioner of Internal

Revenue v. CA, 298 SCRA 83, Oct. 14, 1998

[Panganiban])

152.
Under Article XIV, Section 4, paragraph 3 of the
1987 Constitution, "[A]ll revenues and assets of nonstock, non-profit educational institutions used actually,
directly, and exclusively for educational purposes shall
be exempt from taxes and duties." YMCA alleged that
it "is a non-profit educational institution whose
revenues and assets are used actually, directly and
exclusively for educational purposes so it is exempt
from taxes on its properties and income."
Held: We reiterate that private respondent is
exempt from the payment of property tax, but not income
tax on the rentals from its property. The bare allegation
alone that it is a non-stock, non-profit educational
institution is insufficient to justify its exemption from the
payment of income tax.
[L]aws allowing tax exemption are construed

strictissimi juris. Hence, for the YMCA to be granted the

exemption it claims under the abovecited provision, it

must prove with substantial evidence that (1) it falls under
the classification non-stock, non-profit educational
institution; and (2) the income it seeks to be exempted
from taxation is used actually, directly, and exclusively for
educational purposes. However, the Court notes that not
a scintilla of evidence was submitted by private
respondent to prove that it met the said requisites.

(Commissioner of Internal Revenue v. CA, 298

SCRA 83, Oct. 14, 1998 [Panganiban])

153.
Is the YMCA an educational institution within the
purview of Article XIV, Section 4, par. 3 of the
Constitution?
Held:
We rule that it is not.
The term
educational institution or institution of learning has
acquired a well-known technical meaning, of which the
members of the Constitutional Commission are deemed
cognizant. Under the Education Act of 1982, such term
refers to schools. The school system is synonymous with
formal education, which refers to the hierarchically
structured and chronologically graded learnings organized
and provided by the formal school system and for which
certification is required in order for the learner to progress
through the grades or move to the higher levels. The
Court has examined the Amended Articles of
Incorporation and By-Laws of the YMCA, but found
nothing in them that even hints that it is a school or an
educational institution.
Furthermore, under the Education Act of 1982,
even non-formal education is understood to be schoolbased and private auspices such as foundations and
civic-spirited organizations are ruled out. It is settled
that the term educational institution, when used in laws
granting tax exemptions, refers to a x x x school
seminary, college or educational establishment x x x. (84
68

CJS 566)

Therefore, the private respondent cannot be

deemed one of the educational institutions covered by the
constitutional
provision
under
consideration.

(Commissioner of Internal Revenue v. CA, 298

SCRA 83, Oct. 14, 1998 [Panganiban])

154.
May the PCGG validly commit to exempt from all
forms of taxes the properties to be retained by the
Marcos heirs in a Compromise Agreement between
the former and the latter?
Held: The power to tax and to grant exemptions
is vested in the Congress and, to a certain extent, in the
local legislative bodies. Section 28(4), Article VI of the
Constitution, specifically provides: No law granting any
tax exemption shall be passed without the concurrence of
a majority of all the members of the Congress. The
PCGG has absolutely no power to grant tax exemptions,
even under the cover of its authority to compromise illgotten wealth cases.
Even granting that Congress enacts a law
exempting the Marcoses from paying taxes on their
properties, such law will definitely not pass the test of the
equal protection clause under the Bill of Rights. Any
special grant of tax exemption in favor only of the Marcos
heirs will constitute class legislation. It will also violate
the constitutional rule that taxation shall be uniform and
equitable. (Chavez v. PCGG, 299 SCRA 744, Dec. 9,

1998 [Panganiban])
155.

Discuss the purpose of tax treaties?

Held: The RP-US Tax Treaty is just one of a

number of bilateral treaties which the Philippines has
entered into for the avoidance of double taxation. The
purpose of these international agreements is to reconcile
the national fiscal legislations of the contracting parties in
order to help the taxpayer avoid simultaneous taxation in
two different jurisdictions.
More precisely, the tax
conventions are drafted with a view towards the
elimination of international juridical double taxation x x x.

(Commissioner of Internal Revenue v. S.C. Johnson

and Son, Inc., 309 SCRA 87, 101-102, June 25,
1999, 3rd Div. [Gonzaga-Reyes])
156.

What is international juridical double taxation?

Held:
It is defined as the imposition of
comparable taxes in two or more states on the same
taxpayer in respect of the same subject matter and for
identical periods.
(Commissioner of Internal

Revenue v. S.C. Johnson and Son, Inc., 309 SCRA

87, 102, June 25, 1999)

157.
What is the rationale for doing away with
international juridical double taxation? What are the
methods resorted to by tax treaties to eliminate
double taxation?
Held: The apparent rationale for doing away
with double taxation is to encourage the free flow of
goods and services and the movement of capital,
technology and persons between countries, conditions
deemed vital in creating robust and dynamic economies.
Foreign investments will only thrive in a fairly predictable
and reasonable international investment climate and the
protection against double taxation is crucial in creating
such a climate.

Double taxation usually takes place when a

person is resident of a contracting state and derives
income from, or owns capital in, the other contracting
state and both states impose tax on that income or
capital. In order to eliminate double taxation, a tax treaty
resorts to several methods.
First, it sets out the
respective rights to tax of the state of source or situs and
of the state of residence with regard to certain classes of
income or capital. In some cases, an exclusive right to
tax is conferred on one of the contracting states;
however, for other items of income or capital, both states
are given the right to tax, although the amount of tax that
may be imposed by the state of source is limited.
The second method for the elimination of double
taxation applies whenever the state of source is given a
full or limited right to tax together with the state of
residence. In this case, the treaties make it incumbent
upon the state of residence to allow relief in order to
avoid double taxation. There are two methods of relief the exemption method and the credit method. In the
exemption method, the income or capital which is taxable
in the state of source or situs is exempted in the state of
residence, although in some instances it may be taken
into account in determining the rate of tax applicable to
the taxpayer's remaining income or capital. On the other
hand, in the credit method, although the income or capital
which is taxed in the state of source is still taxable in the
state of residence, the tax paid in the former is credited
against the tax levied in the latter. The basic difference
between the two methods is that in the exemption
method, the focus is on the income or capital itself,
whereas the credit method focuses upon the tax.

(Commissioner of Internal Revenue v. S.C. Johnson

and Son, Inc., 309 SCRA 87, 102-103, June 25,
1999)
158.
What is the rationale for reducing the tax rate in
negotiating tax treaties?

Held: In negotiating tax treaties, the underlying

rationale for reducing the tax rate is that the Philippines
will give up a part of the tax in the expectation that the
tax given up for this particular investment is not taxed by
the other country.
(Commissioner of Internal

Revenue v. S.C. Johnson and Son, Inc., 309 SCRA

87, 103, June 25, 1999)
THE BILL OF RIGHTS
The Due Process Clause

159.
Discuss the Due Process Clause. Distinguish
substantive due process from procedural due process.
Held: Section 1 of the Bill of Rights lays down
what is known as the due process clause of the
Constitution.
In order to fall within the aegis of this provision,
two conditions must concur, namely, that there is a
deprivation and that such deprivation is done without
proper observance of due process. When one speaks of
due process of law, however, a distinction must be made
between matters of procedure and matters of substance.
In essence, procedural due process refers to the method
or manner by which the law is enforced, while
substantive due process requires that the law itself, not
merely the procedures by which the law would be
enforced, is fair, reasonable, and just. (Corona v.
69

United Harbor Pilots Association of the Phils., 283

SCRA 31, Dec. 12, 1997 [Romero])
160.
Respondents United Harbor Pilots Association of
the Philippines argue that due process was not
observed in the adoption of PPA-AO No. 04-92 which
provides that: (a)ll existing regular appointments
which have been previously issued by the Bureau of
Customs or the PPA shall remain valid up to 31
December 1992 only, and (a)ll appointments to
harbor pilot positions in all pilotage districts shall,
henceforth, be only for a term of one (1) year from
date of effectivity subject to renewal or cancellation
by the Philippine Ports Authority after conduct of a
rigid evaluation of performance, allegedly because no
hearing
was
conducted
whereby
relevant
government agencies and the harbor pilots
themselves could ventilate their views.
They also
contended that the sole and exclusive right to the
exercise of harbor pilotage by pilots has become
vested and can only be withdrawn or shortened by
observing the constitutional mandate of due process
of law.
Held:
They are obviously referring to the
procedural aspect of the enactment. Fortunately, the
Court has maintained a clear position in this regard, a
stance it has stressed in the recent case of Lumiqued v.
Hon. Exevea, where it declared that (a)s long as a party
was given the opportunity to defend his interests in due
course, he cannot be said to have been denied due
process of law, for this opportunity to be heard is the very
essence of due process. Moreover, this constitutional
mandate is deemed satisfied if a person is granted an
opportunity to seek reconsideration of the action or ruling
complained of.
In the case at bar, respondents questioned PPAAO No. 04-92 no less than four times before the matter
was finally elevated to this Tribunal. Their arguments on
this score, however, failed to persuade. X x x
Neither does the fact that the pilots themselves
were not consulted in any way taint the validity of the
administrative order.
As a general rule, notice and
hearing, as the fundamental requirements of procedural
due process, are essential only when an administrative
body exercises its quasi-judicial function.
In the
performance of its executive or legislative functions, such
as issuing rules and regulations, an administrative body
need not comply with the requirements of notice and
hearing.
Upon the other hand, it is also contended that the
sole and exclusive right to the exercise of harbor pilotage
by pilots is a settled issue. Respondents aver that said
right has become vested and can only be withdrawn or
shortened by observing the constitutional mandate of
due process of law. Their argument has thus shifted from
the procedural to one of substance. It is here where PPAAO No. 04-92 fails to meet the condition set by the
organic law.
Pilotage, just like other professions, may be
practiced only by duly licensed individuals. Licensure is
the granting of license especially to practice a
profession. It is also the system of granting licenses (as
for professional practice) in accordance with established
standards. A license is a right or permission granted by
some competent authority to carry on a business or do an
act which, without such license, would be illegal.

Before harbor pilots can earn a license to practice

their profession, they literally have to pass through the
proverbial eye of a needle by taking, not one but five
examinations, each followed by actual training and
practice. X x x
Their license is granted in the form of an
appointment which allows them to engage in pilotage until
they retire at the age of 70 years. This is a vested right.
Under the terms of PPA-AO No. 04-92, [a]ll existing
regular appointments which have been previously issued
by the Bureau of Customs or the PPA shall remain valid up
to 31 December 1992 only, and (a)ll appointments to
harbor pilot positions in all pilotage districts shall,
henceforth, be only for a term of one (1) year from date
of effectivity subject to renewal or cancellation by the
Authority after conduct of a rigid evaluation of
performance.
It is readily apparent that PPA-AO No. 04-92
unduly restricts the right of harbor pilots to enjoy their
profession before their compulsory retirement. In the
past, they enjoyed a measure of security knowing that
after passing five examinations and undergoing years of
on-the-job training, they would have a license which they
could use until their retirement, unless sooner revoked by
the PPA for mental or physical unfitness. Under the new
issuance, they have to contend with an annual
cancellation of their license which can be temporary or
permanent depending on the outcome of their
performance evaluation. Veteran pilots and neophytes
alike are suddenly confronted with one-year terms which
ipso facto expire at the end of that period. Renewal of
their license is now dependent on a rigid evaluation of
performance which is conducted only after the license
has already been cancelled. Hence, the use of the term
renewal. It is this pre-evaluation cancellation which
primarily makes PPA-AO No. 04-92 unreasonable and
constitutionally infirm. In a real sense, it is a deprivation
of property without due process of law. (Corona v.

United Harbor Pilots Association of the Phils., 283

SCRA 31, December 12, 1997 [Romero])

161.
Does the due process clause encompass the right
to be assisted by counsel during an administrative
inquiry?
Held: The right to counsel, which cannot be
waived unless the waiver is in writing and in the presence
of counsel, is a right afforded a suspect or an accused
during custodial investigation. It is not an absolute right
and may, thus, be invoked or rejected in a criminal
proceeding and, with more reason, in an administrative
inquiry. In the case at bar, petitioners invoke the right of
an accused in criminal proceedings to have competent
and independent counsel of his own choice. Lumiqued,
however, was not accused of any crime in the proceedings
below. The investigation conducted by the committee x x
x was for the sole purpose of determining if he could be
held administratively liable under the law for the
complaints filed against him. x x x As such, the hearing
conducted by the investigating committee was not part of
a criminal prosecution. X x x
While
investigations
conducted
by
an
administrative body may at times be akin to a criminal
proceeding, the fact remains that under existing laws, a
party in an administrative inquiry may or may not be
assisted by counsel, irrespective of the nature of the
charges and of the respondent's capacity to represent
70

himself, and no duty rests on such a body to furnish the

person being investigated with counsel.
In an
administrative proceeding x x x a respondent x x x has the
option of engaging the services of counsel or not. x x x
Thus, the right to counsel is not imperative in
administrative investigations because such inquiries are
conducted merely to determine whether there are facts
that merit disciplinary measures against erring public
officers and employees, with the purpose of maintaining
the dignity of government service.
The right to counsel is not indispensable to due
process unless required by the Constitution or the law.

Lumiqued v. Exevea, 282 SCRA 125, Nov. 18, 1997

[Romero])

162.
Discuss the Void for Vagueness Doctrine, and
why is it repugnant to the Constitution. Distinguish a
perfectly vague act from legislation couched in
imprecise language.
Held: 1. Due process requires that the terms of
a penal statute must be sufficiently explicit to inform
those who are subject to it what conduct on their part will
render them liable to its penalties. A criminal statute that
fails to give a person of ordinary intelligence fair notice
that his contemplated conduct is forbidden by the
statute, or is so indefinite that it encourages arbitrary
and erratic arrests and convictions, is void for vagueness .
The constitutional vice in a vague or indefinite statute is
the injustice to the accused in placing him on trial for an
offense, the nature of which he is given no fair warning.
We reiterated these principles in People v.

Nazario:

As a rule, a statute or act may be said to

be vague when it lacks comprehensible standards
that men of common intelligence must
necessarily guess at its meaning and differ as to
its application.
It is repugnant to the
Constitution in two respects: (1) it violates due
process for failure to accord persons, especially
the parties targeted by it, fair notice of the
conduct to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its provisions
and become an arbitrary flexing of the
Government muscle.
We added, however, that:
X x x the act must be utterly vague on its
face, that is to say, it cannot be clarified by either
a saving clause or by construction. Thus, in
Coates v. City of Cincinnati, the U.S. Supreme
Court struck down an ordinance that had made it
illegal for three or more persons to assemble on
any sidewalk and there conduct themselves in a
manner annoying to persons passing by. Clearly,
the ordinance imposed no standard at all
because one may never know in advance what
annoys some people but does not annoy others.

Coates highlights what has been referred

to as a perfectly vague act whose obscurity is
evident on its face. It is to be distinguished,
however, from legislation coached in imprecise
language but which nonetheless specifies a
standard though defectively phrased in which
case, it may be saved by proper construction. X

x x (People v. Dela Piedra, 350 SCRA 163,

Jan. 24, 2001, 1st Div. [Kapunan])

2. The doctrine has been formulated in various

ways, but is commonly stated to the effect that a statute
establishing a criminal offense must define the offense
with sufficient definiteness that persons of ordinary
intelligence can understand what conduct is prohibited by
the statute. It can only be invoked against that specie of
legislation that is utterly vague on its face, i.e., that which
cannot be clarified either by a saving clause or by
construction.
A statute or act may be said to be vague when it
lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and
differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects it
violated due process for failure to accord persons,
especially the parties targeted by it, fair notice of what
conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle. But the
doctrine does not apply as against legislations that are
merely couched in imprecise language but which
nonetheless specify a standard though defectively
phrased; or to those that are apparently ambiguous yet
fairly applicable to certain types of activities. The first
may be saved by proper construction, while no
challenge may be mounted as against the second
whenever directed against such activities. With more
reason, the doctrine cannot be invoked where the assailed
statute is clear and free from ambiguity, as in this case.
The test in determining whether a criminal statute
is void for uncertainty is whether the language conveys a
sufficiently definite warning as to the proscribed conduct
when measured by common understanding and practice .
It must be stressed, however, that the vagueness
doctrine merely requires a reasonable degree of certainty
for the statute to be upheld not absolute precision or
mathematical exactitude, as petitioner seems to suggest.
Flexibility, rather than meticulous specificity, is permissible
as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because
it might have been more explicit in its wordings or
detailed in its provisions, especially where, because of the
nature of the act, it would be impossible to provide all the
details in advance as in all other statutes. (Joseph

Ejercito Estrada v. Sandiganbayan [Third Division],

G.R. No. 148560, Nov. 19, 2001, En Banc
[Bellosillo])
163.
Does Article 13 (b) of the Labor Code defining
recruitment and placement violate the due process
clause?

Held: In support of her submission that Article

13 (b) is void for vagueness, appellant invokes People v.
Panis, where this Court x x x criticized the definition of
recruitment and placement x x x.
Appellant further argues that the acts that
constitute recruitment and placement suffer from
overbreadth since by merely referring a person for
employment, a person may be convicted of illegal
recruitment.
These contentions cannot be sustained.

71

Appellants reliance on People v. Panis is

misplaced. The issue in Panis was whether, under the
proviso of Article 13(b), the crime of illegal recruitment
could be committed only whenever two or more persons
are in any manner promised or offered any employment
for a fee. The Court held in the negative x x x.
X x x The Court, in Panis, merely bemoaned the
lack of records that would help shed light on the meaning
of the proviso.
The absence of such records
notwithstanding, the Court was able to arrive at a
reasonable interpretation of the proviso by applying
principles in criminal law and drawing from the language
and intent of the law itself. Section 13(b), therefore, is
not a perfectly vague act whose obscurity is evident on
its face. If at all, the proviso therein is merely couched in
imprecise language that was salvaged by proper
construction. It is not void for vagueness.
Xxx
That Section 13(b) encompasses what appellant
apparently considers as customary and harmless acts such
as labor or employment referral (referring an
applicant, for employment to a prospective employer)
does not render the law overbroad. Evidently, appellant
misapprehends concept of overbreadth.
A statute may be said to be overbroad where it
operates to inhibit the exercise of individual freedoms
affirmatively guaranteed by the Constitution, such as the
freedom of speech or religion.
A generally worded
statute, when construed to punish conduct which cannot
be constitutionally punished is unconstitutionally vague to
the extent that it fails to give adequate warning of the
boundary between the constitutionally permissible and the
constitutionally impermissible applications of the statute .
In Blo Umpar Adiong v. Commission on Elections,
for instance, we struck down as void for overbreadth
provisions prohibiting the posting of election propaganda
in any place including private vehicles other than in
the common poster areas sanctioned by the COMELEC.
We held that the challenged provisions not only deprived
the owner of the vehicle the use of his property but also
deprived the citizen of his right to free speech and
information. The prohibition in Adiong, therefore, was so
broad that it covered even constitutionally guaranteed
rights and, hence, void for overbreadth. In the present
case, however, appellant did not even specify what
constitutionally protected freedoms are embraced by the
definition of recruitment and placement that would
render the same constitutionally overbroad. (People v.

Dela Piedra, 350 SCRA 163, Jan. 24, 2001, 1st Div.
[Kapunan])
164.
Is the Plunder Law unconstitutional for being
vague?

Held: As it is written, the Plunder Law contains

ascertainable standards and well-defined parameters
which would enable the accused to determine the nature
of his violation. Section 2 is sufficiently explicit in its
description of the acts, conduct and conditions required or
forbidden, and prescribes the elements of the crime with
reasonable certainty and particularity. X x x
As long as the law affords some comprehensible
guide or rule that would inform those who are subject to it
what conduct would render them liable to its penalties, its
validity would be sustained. It must sufficiently guide the

judge in its application; the counsel, in defending one

charged with its violation; and more importantly, the
accused, in identifying the realm of the proscribed
conduct. Indeed, it can be understood with little difficulty
that what the assailed statute punishes is the act of a
public officer in amassing or accumulating ill-gotten
wealth of at least P50,000,000.00 through a series or
combination of acts enumerated in Sec. 1, par. (d), of the
Plunder Law.
In fact, the amended Information itself closely
tracks the language of the law, indicating with reasonable
certainty the various elements of the offense which
petitioner is alleged to have committed x x x.
We discern nothing in the foregoing that is vague
or ambiguous as there is obviously none that will
confuse petitioner in his defense. Although subject to
proof, these factual assertions clearly show that the
elements of the crime are easily understood and provide
adequate contrast between the innocent and the
prohibited acts.
Upon such unequivocal assertions,
petitioner is completely informed of the accusations
against him as to enable him to prepare for an intelligent
defense.
Petitioner, however, bewails the failure of the law
to provide for the statutory definition of the terms
combination and series in the key phrase a
combination or series of overt or criminal acts found in
Sec. 1, par. (d), and Sec. 2, and the word pattern in
Sec. 4. These omissions, according to petitioner, render
the Plunder Law unconstitutional for being impermissibly
vague and overbroad and deny him the right to be
informed of the nature and cause of the accusation
against him, hence, violative of his fundamental right to
due process.
The rationalization seems to us to be pure
sophistry. A statute is not rendered uncertain and void
merely because general terms are used therein, or
because of the employment of terms without defining
them; much less do we have to define every word we use.
Besides, there is no positive constitutional or statutory
command requiring the legislature to define each and
every word in an enactment. Congress is not restricted in
the form of expression of its will, and its inability to so
define the words employed in a statute will not necessarily
result in the vagueness or ambiguity of the law so long as
the legislative will is clear, or at least, can be gathered
from the whole act, which is distinctly expressed in the
Plunder Law.
Moreover, it is a well-settled principle of legal
hermeneutics that words of a statute will be interpreted in
their natural, plain and ordinary acceptation and
signification, unless it is evident that the legislature
intended a technical or special legal meaning to those
words. The intention of the lawmakers who are,
ordinarily, untrained philologists and lexicographers to
use statutory phraseology in such a manner is always
presumed. Thus, Websters New Collegiate Dictionary
contains the following commonly accepted definition of
the words combination and series.

Combination the result or product of

combining; the act or process of combining. To
combine is to bring into such close relationship as
to obscure individual characters.

72

Series a number of things or events of

the same class coming one after another in spatial
and temporal succession.
That Congress intended the words combination
and series to be understood in their popular meanings is
pristinely evident from the legislative deliberations on the
bill which eventually became RA 7080 or the Plunder Law
x x x.
Xxx
Thus when the Plunder Law speaks of
combination, it is referring to at least two (2) acts falling
under different categories or enumeration provided in Sec.
1, par. (d), e.g., raids on the public treasury in Sec. 1,
par. (d), subpar. (1), and fraudulent conveyance of assets
belonging to the National Government under Sec. 1, par.
(d), subpar. (3).
On the other hand, to constitute a series there
must be two (2) or more overt or criminal acts falling
under the same category of enumeration found in Sec. 1,
par. (d), say, misappropriation, malversation and raids on
the public treasury, all of which fall under Sec. 1, par. (d),
subpar. (1).
Verily, had the legislature intended a
technical or distinctive meaning for combination and
series, it would have taken greater pains in specifically
providing for it in the law.
As for pattern, we agree with the observations
of the Sandiganbayan that this term is sufficiently defined
in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2

x x x under Sec. 1 (d) of the law, a

pattern consists of at least a combination or
series of overt or criminal acts enumerated
in subsections (1) to (6) of Sec. 1 (d).
Secondly, pursuant to Sec. 2 of the law, the
pattern of overt or criminal acts is directed
towards a common purpose or goal which is
to enable the public officer to amass,
accumulate or acquire ill-gotten wealth.
And thirdly, there must either be an overall
unlawful scheme or conspiracy to achieve
said common goal. As commonly understood, the
term overall unlawful scheme indicates a general
plan of action or method which the principal
accused and public officer and others conniving
with him follow to achieve the aforesaid common
goal. In the alternative, if there is no such overall
scheme or where the schemes or methods used
by multiple accused vary, the overt or criminal
acts must form part of a conspiracy to attain a
common goal.
Xxx
Hence, it cannot plausibly be contended that the
law does not give a fair warning and sufficient notice of
what it seeks to penalize. Under the circumstances,
petitioners reliance on the void-for-vagueness doctrine
is manifestly misplaced.
Xxx
Moreover, we agree with, hence we adopt, the
observations of Mr. Justice Vicente V. Mendoza during the
deliberations of the Court that the allegations that the
Plunder Law is vague and overbroad do not justify a facial
review of its validity

The void-for-vagueness doctrine states

that a statute which either forbids or requires the
doing of an act in terms so vague that men of
common intelligence must necessarily guess at its
meaning and differ as to its application violates
the first essential of due process of law.

(Connally v. General Constr. Co., 269 U.S. 385,

391, 70 L. Ed. 328 [1926] cited in Ermita-Malate
Hotel and Motel Operators Assn. v. City Mayor, 20
SCRA 849, 867 [1967])
The overbreadth
doctrine, on the other hand, decrees that a
governmental purpose may not be achieved by
means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms.

(NAACP v. Alabama, 377 U.S. 288, 307, 12, 2 L.

Ed 325, 338 [1958]; Shelton v. Tucker, 364 U.S.
479, 5 L. Ed. 2d 231 [1960])

A facial challenge is allowed to be made

to a vague statute and to one which is overbroad
because of possible chilling effect upon
protected speech. The theory is that [w]hen
statutes regulate or proscribe speech and no
readily apparent construction suggests itself as a
vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society
of constitutionally protected expression is deemed
to justify allowing attacks on overly broad statutes
with no requirement that the person making the
attack demonstrate that his own conduct could
not be regulated by a statute drawn with narrow
specificity. (Gooding v. Wilson, 405 U.S. 518,

521, 31 L. Ed. 2d 408, 413 [1972] [internal

quotation marks omitted]) The possible harm to

society in permitting some unprotected speed to

go unpunished is outweighed by the possibility
that the protected speech of others may be
deterred and perceived grievances left to fester
because of possible inhibitory effects of overly
broad statutes.
This rationale does not apply to penal
statutes.
Criminal statutes have general in
terrorem effect resulting from their very
existence, and, if facial challenge is allowed for
this reason alone, the State may well be
prevented from enacting laws against socially
harmful conduct. In the area of criminal law, the
law cannot take chances as in the area of free
speech.
The overbreadth and vagueness doctrine
then have special application only to free speech
cases. They are inapt for testing the validity of
penal statutes. As the U.S. Supreme Court put it,
in an opinion by Chief Justice Rehnquist, we have
not recognized an overbreadth doctrine outside
the limited context of the First Amendment. In

Broadwick v. Oklahoma (413 U.S. 601, 612-613,

37 L Ed. 2d 830, 840-841 [1973]), the Court ruled
that claims of facial overbreadth have been
entertained in cases involving statutes which, by
their terms, seek to regulate only spoken words
and, again, that overbreadth claims, if
entertained at all, have been curtailed when
invoked against ordinary criminal laws that are
sought to be applied to protected conduct. For
this reason, it has been held that a facial
challenge to a legislative act is the most difficult
challenge to mount successfully, since the

73

challenger must establish that no set of

circumstances exists under which the Act would
be valid. (United States v. Salerno, supra.) As
for the vagueness doctrine, it is said that a litigant
may challenge a statute on its face only if it is
vague in all its possible applications. A plaintiff
who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of
the law as applied to the conduct of others.

(Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 494-95, 71 L Ed. 2d
362, 369 [1982])
In sum, the doctrines of strict scrutiny,
overbreadth, and vagueness are analytical tools
developed for testing on their faces statutes in
free speech cases or, as they are called in
American law, First Amendment cases. They
cannot be made to do service when what is
involved is a criminal statute. With respect to
such statute, the established rule is that one to
whom application of a statute is constitutional will
not be heard to attack the statute on the ground
that impliedly it might also be taken as applying
to other persons or other situations in which its
application might be unconstitutional. (United

States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524,

529 [1960]. The paradigmatic case is Yazoo &
Mississippi Valley RR. v. Jackson Vinegar Co., 226
U.S. 217, 57 l. Ed. 193 [1912]) As has been

pointed out, vagueness challenges in the First

Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes
found to be vague as a matter of due process
typically are invalidated [only] as applied to a
particular defendant. (G. Gunther & K. Sullivan,
Constitutional Law 1299 [2001]) Consequently,
there is no basis for petitioners claim that this
Court review the Anti-Plunder Law on its face and
in its entirety.
Indeed, on its face invalidation of
statutes results in striking them down entirely on
the ground that they might be applied to parties
not before the Court whose activities are
constitutionally protected (Id. at 1328).
It
constitutes a departure from the case and
controversy requirement of the Constitution and
permits decisions to be made without concrete
factual settings and in sterile abstract contexts

(Constitution, Art. VIII, Sections 1 and 5.

Compare Angara v. Electoral Commission, 63 Phil.
139, 158 [1936]). But, as the U.S. Supreme
Court pointed out in Younger v. Harris (401 U.S.
37, 52-53, 27 L. Ed. 2d 669, 680 [1971]; others
omitted.)

[T]he task of analyzing a

proposed
statute,
pinpointing
its
deficiencies, and requiring correction of
these deficiencies before the statute is
put into effect, is rarely if ever an
appropriate task for the judiciary. The
combination of the relative remoteness of
the controversy, the impact on the
legislative process of the relief sought,
and above all the speculative and
amorphous nature of the required line-byline analysis of detailed statutes, x x x
ordinarily results in a kind of case that is
wholly
unsatisfactory
for
deciding

constitutional questions, whichever way

they might be decided.
For these reasons, on its face invalidation of
statutes has been described as manifestly strong
medicine, to be employed sparingly and only as
a last resort, (Broadwick v. Oklahoma, 413 U.S.

at 613, 37 L.Ed.2d at 841; National Endowment

for the Arts v. Finley, 524 U.S. 569, 580 [1998])
and is generally disfavored (FW/PBS, Inc. v. City
of Dallas, 493 U.S. 223, 107 L.Ed.2d 603 [1990];
Cruz v. Secretary of Environment and Natural
Resources, G.R. No. 135385, 6 December 2000
[Mendoza, J., Separate Opinion]). In determining
the constitutionality of a statute, therefore, its
provisions which are alleged to have been violated
in a case must be examined in the light of the
conduct with which the defendant is charged

(United States v. National Dairy Prod. Corp., 372

U.S. 29, 32-33, 9 L.Ed.2d 561, 565-6 [1963])
In light of the foregoing disquisition, it is evident
that the purported ambiguity of the Plunder Law, so
tenaciously claimed and argued at length by petitioner, is
more imagined than real. Ambiguity, where none exists,
cannot be created by dissecting parts and words in the
statute to furnish support to critics who cavil at the want
of scientific precision in the law. Every provision of the
law should be construed in relation and with reference to
every other part. To be sure, it will take more than
nitpicking to overturn the well-entrenched presumption of
constitutionality and validity of the Plunder Law.
A
fortiori, petitioner cannot feign ignorance of what the
Plunder Law is all about. Being one of the Senators who
voted for its passage, petitioner must be aware that the
law was extensively deliberated upon by the Senate and
its appropriate committees by reason of which he even
registered his affirmative vote with full knowledge of its
legal implications and sound constitutional anchorage.

(Joseph Ejercito Estrada v. Sandiganbayan [Third

Division], G.R. No. 148560, Nov. 19, 2001, En Banc
[Bellosillo])
165.
Does an extraditee have the right to notice and
hearing during the evaluation stage of an extradition
proceeding?
Held: Considering that in the case at bar, the
extradition proceeding is only at its evaluation stage, the
nature of the right being claimed by the private
respondent is nebulous and the degree of prejudice he
will allegedly suffer is weak, we accord greater weight to
the interests espoused by the government thru the
petitioner Secretary of Justice. X x x

In tilting the balance in favor of the interests of

the State, the Court stresses that it is not ruling that the
private respondent has no right to due process at all
throughout the length and breadth of the extradition
proceedings.
Procedural due process requires a
determination of what process is due, when it is due, and
the degree of what is due. Stated otherwise, a prior

determination should be made as to whether procedural

protections are at all due and when they are due, which in
turn depends on the extent to which an individual will be
"condemned to suffer grievous loss." We have explained
why an extraditee has no right to notice and hearing
during the evaluation stage of the extradition process. As
aforesaid, P.D. No. 1069 which implements the RP-US
Extradition Treaty affords an extraditee sufficient
opportunity to meet the evidence against him once the

74

petition is filed in court. The time for the extraditee to

know the basis of the request for his extradition is merely
moved to the filing in court of the formal petition for
extradition. The extraditee's right to know is momentarily
withheld during the evaluation stage of the extradition
process to accommodate the more compelling interest of
the State to prevent escape of potential extraditees which
can be precipitated by premature information of the basis
of the request for his extradition. No less compelling at
that stage of the extradition proceedings is the need to be
more deferential to the judgment of a co-equal branch of
the government, the Executive, which has been endowed
by our Constitution with greater power over matters
involving our foreign relations. Needless to state, this
balance of interests is not a static but a moving balance
which can be adjusted as the extradition process moves
from the administrative stage to the judicial stage and to
the execution stage depending on factors that will come
into play. In sum, we rule that the temporary hold on
private respondent's privilege of notice and hearing is a
soft restraint on his right to due process which will not
deprive him of fundamental fairness should he decide to
resist the request for his extradition to the United States.

There is no denial of due process as long as fundamental

fairness is assured a party. (Secretary of Justice v.
Hon. Ralph C. Lantion, G.R. No. 139465, Oct. 17,
2000, En Banc [Puno])

166.
Will Mark Jimenezs detention prior to the
conclusion of the extradition proceedings not amount
to a violation of his right to due process?
Held: Contrary to his contention, his detention
prior to the conclusion of the extradition proceedings does
not amount to a violation of his right to due process. We
iterate the familiar doctrine that the essence of due
process is the opportunity to be heard but, at the same
time, point out that the doctrine does not always call for a
prior opportunity to be heard. Where the circumstances
such as those present in an extradition case call for it, a
subsequent opportunity to be heard is enough. In the
present case, respondent will be given full opportunity to
be heard subsequently, when the extradition court hears
the Petition for Extradition. Hence, there is no violation of
his right to due process and fundamental fairness.
Contrary to the contention of Jimenez, we find no
arbitrariness, either, in the immediate deprivation of his
liberty prior to his being heard. That his arrest and
detention will not be arbitrary is sufficiently ensured by
(1) the DOJs filing in court the Petition with its supporting
documents after a determination that the extradition
request meets the requirements of the law and the
relevant treaty; (2) the extradition judges independent
prima facie determination that his arrest will best serve
the ends of justice before the issuance of a warrant for his
arrest; and (3) his opportunity, once he is under the
courts custody, to apply for bail as an exception to the
no-initial-bail rule.
It is also worth noting that before the US
government requested the extradition of respondent,
proceedings had already been conducted in that country.
But because he left the jurisdiction of the requesting state
before those proceedings could be completed, it was
hindered from continuing with the due processes
prescribed under its laws. His invocation of due process
now had thus become hollow. He already had that
opportunity in the requesting state; yet, instead of taking
it, he ran away.

In this light, would it be proper and just for the

government to increase the risk of violating its treaty
obligations in order to accord Respondent Jimenez his
personal liberty in the span of time that it takes to resolve
the Petition for Extradition? His supposed immediate
deprivation of liberty without due process that he had
previously shunned pales against the governments
interest in fulfilling its Extradition Treaty obligations and in
cooperating with the world community in the suppression
of crime. Indeed, [c]onstitutional liberties do not exist in
a vacuum; the due process rights accorded to individuals
must be carefully balanced against exigent and palpable
government interest.
Too, we cannot allow our country to be a haven
for fugitives, cowards and weaklings who, instead of
facing the consequences of their actions, choose to run
and hide. Hence, it would not be good policy to increase
the risk of violating our treaty obligations if, through
overprotection or excessively liberal treatment, persons
sought to be extradited are able to evade arrest or escape
from our custody. In the absence of any provision in
the Constitution, the law or the treaty expressly
guaranteeing the right to bail in extradition proceedings,
adopting the practice of not granting them bail, as a
general rule, would be a step towards deterring fugitives
from coming to the Philippines to hide from or evade their
prosecutors.
The denial of bail as a matter of course in
extradition cases falls into place with and gives life to
Article 14 (It states: If the person sought consents in
writing to surrender to the Requesting State, the
Requested State may surrender the person as
expeditiously as possible without further proceedings.) of
the Treaty, since this practice would encourage the
accused to voluntarily surrender to the requesting state to
cut short their detention here. Likewise, their detention
pending the resolution of extradition proceedings would
fall into place with the emphasis of the Extradition Law on
the summary nature of extradition cases and the need for
their speedy disposition. (Government of the United

States of America v. Hon. Guillermo Purganan, G.R.

No. 148571, Sept. 24, 2002, En Banc [Panganiban])
The Equal Protection Clause

167.
Explain and discuss the equal protection of the
law clause.
Held: 1. The equal protection of the law is
embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair
play. It has nonetheless been embodied in a separate
clause in Article III, Sec. 1, of the Constitution to provide
for a more specific guaranty against any form of undue
favoritism or hostility from the government. Arbitrariness
in general may be challenged on the basis of the due
process clause. But if the particular act assailed partakes
of an unwarranted partiality or prejudice, the sharper
weapon to cut it down is the equal protection clause.
According to a long line of decisions, equal
protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed. Similar subjects,
in other words, should not be treated differently, so as to
give undue favor to some and unjustly discriminate
against others.
75

The equal protection clause does not require the

universal application of the laws on all persons or things
without distinction. This might in fact sometimes result in
unequal protection, as where, for example, a law
prohibiting mature books to all persons, regardless of age,
would benefit the morals of the youth but violate the
liberty of adults. What the clause requires is equality
among equals as determined according to a valid
classification. By classification is meant the grouping of
persons or things similar to each other in certain
particulars and different from all others in these same
particulars. (Philippine Judges Association v. Prado,

227 SCRA 703, 711-712, Nov. 11, 1993, En Banc

[Cruz])

2. The equal protection clause exists to prevent

undue favor or privilege. It is intended to eliminate
discrimination and oppression based on inequality.
Recognizing the existence of real difference among men,
the equal protection clause does not demand absolute
equality. It merely requires that all persons shall be
treated alike, under like circumstances and conditions
both as to the privileges conferred and liabilities enforced .
Thus, the equal protection clause does not absolutely
forbid classifications x x x. If the classification is based on
real and substantial differences; is germane to the
purpose of the law; applies to all members of the same
class; and applies to current as well as future conditions,
the classification may not be impugned as violating the
Constitution's equal protection guarantee. A distinction
based on real and reasonable considerations related to a
proper legislative purpose x x x is neither unreasonable,
capricious nor unfounded. (Himagan v. People, 237

SCRA 538, Oct. 7, 1994, En Banc [Kapunan])

168.
Congress enacted R.A. No. 8189 which provides,
in Section 44 thereof, that "No Election Officer shall
hold office in a particular city or municipality for more
than four (4) years. Any election officer who, either
at the time of the approval of this Act or subsequent
thereto, has served for at least four (4) years in a
particular city or municipality shall automatically be
reassigned by the Commission to a new station
outside
the
original
congressional
district."
Petitioners, who are City and Municipal Election
Officers, theorize that Section 44 of RA 8189 is
violative of the "equal protection clause" of the 1987
Constitution because it singles out the City and
Municipal Election Officers of the COMELEC as
prohibited from holding office in the same city or
municipality for more than four (4) years. They
maintain that there is no substantial distinction
between them and other COMELEC officials, and
therefore, there is no valid classification to justify the
objective of the provision of law under attack.
Resolve.
Held: The Court is not persuaded by petitioners'
arguments. The "equal protection clause" of the 1987
Constitution permits a valid classification under the
following conditions:
1) The classification must rest on substantial
distinction;
2) The classification must be germane to the
purpose of the law;
3) The classification must not be limited to
existing conditions only; and
4) The classification must apply equally to all
members of the same class.

After a careful study, the ineluctable conclusion is

that the classification under Section 44 of RA 8189
satisfies the aforestated requirements.
The singling out of election officers in order to
"ensure the impartiality of election officials by preventing
them from developing familiarity with the people of their
place of assignment" does not violate the equal protection
clause of the Constitution.
In Lutz v. Araneta, it was held that "the
legislature is not required by the Constitution to adhere to
a policy of 'all or none'". This is so for underinclusiveness
is not an argument against a valid classification. It may
be true that all other officers of COMELEC referred to by
petitioners are exposed to the same evils sought to be
addressed by the statute. However, in this case, it can be
discerned that the legislature thought the noble purpose
of the law would be sufficiently served by breaking an
important link in the chain of corruption than by breaking
up each and every link thereof. Verily, under Section 3(n)
of RA 8189, election officers are the highest officials or
authorized representatives of the COMELEC in a city or
municipality. It is safe to say that without the complicity
of such officials, large-scale anomalies in the registration
of voters can hardly be carried out. (Agripino A. De

Guzman, Jr., et al. v. COMELEC (G.R. No. 129118,

July 19, 2000, en Banc [Purisima])

169.
Are there substantial distinctions between print
media and broadcast media to justify the requirement
for the latter to give free airtime to be used by the
Comelec to inform the public of qualifications and
program of government of candidates and political
parties during the campaign period? Discuss.
Held: There are important differences in the
characteristics of the two media which justify their
differential treatment for free speech purposes. Because
of the physical limitations of the broadcast spectrum, the
government must, of necessity, allocate broadcast
frequencies to those wishing to use them. There is no
similar justification for government allocation and
regulation of the print media.
In the allocation of limited resources, relevant
conditions may validly be imposed on the grantees or
licensees. The reason for this is that the government
spends public funds for the allocation and regulation of
the broadcast industry, which it does not do in the case of
print media. To require radio and television broadcast
industry to provide free airtime for the Comelec Time is a
fair exchange for what the industry gets.
From another point of view, the SC has also held
that because of the unique and pervasive influence of the
broadcast media, [n]ecessarily x x x the freedom of
television and radio broadcasting is somewhat lesser in
scope than the freedom accorded to newspaper and print
media. (TELEBAP, Inc. v. COMELEC, 289 SCRA 337,

April 21, 1998 [Mendoza])

170.
Does the death penalty law (R.A. No. 7659)
violate the equal protection clause considering that, in
effect, it punishes only people who are poor,
uneducated, and jobless?
Held: R.A. No. 7659 specifically provides that
[T]he death penalty shall be imposed if the crime of rape
is committed x x x when the victim is a religious or a child
below seven (7) years old. Apparently, the death penalty
76

law makes no distinction. It applies to all persons and to

all classes of persons rich or poor, educated or
uneducated, religious or non-religious.
No particular
person or classes of persons are identified by the law
against whom the death penalty shall be exclusively
imposed. The law punishes with death a person who shall
commit rape against a child below seven years of age.
Thus, the perpetration of rape against a 5-year old girl
does not absolve or exempt an accused from the
imposition of the death penalty by the fact that he is poor,
uneducated, jobless, and lacks catechetical instruction.
To hold otherwise will not eliminate but promote
inequalities.
In Cecilleville Realty and Service Corporation v.
CA, the SC clarified that compassion for the poor is an
imperative of every humane society but only when the
recipient is not a rascal claiming an undeserved privilege.

(People v. Jimmy Mijano y Tamora, G.R. No.

129112, July 23, 1999, En Banc [Per Curiam])

171.
The International School Alliance of Educators
(ISAE) questioned the point-of-hire classification
employed by International School, Inc. to justify
distinction in salary rates between foreign-hires and
local-hires, i.e., salary rates of foreign-hires are higher
by 25% than their local counterparts, as
discriminatory and, therefore, violates the equal
protection clause.
The International School
contended that this is necessary in order to entice
foreign-hires to leave their domicile and work here.
Resolve.
Held: That public policy abhors inequality and
discrimination is beyond contention. Our Constitution and
laws reflect the policy against these evils. X x x
International law, which springs from general
principles of law, likewise proscribes discrimination x x x.
The Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural
Rights, the International Convention on the Elimination of
All Forms of Racial Discrimination, the Convention against
Discrimination in Education, the Convention (No. 111)
Concerning Discrimination in Respect of Employment and
Occupation - all embody the general principle against
discrimination, the very antithesis of fairness and justice.
The Philippines, through its Constitution, has incorporated
this principle as part of its national laws.

(International School, Inc.), its "international character"

notwithstanding.
The School contends that petitioner has not
adduced evidence that local-hires perform work equal to
that of foreign-hires. The Court finds this argument a
little cavalier. If an employer accords employees the
same position and rank, the presumption is that these
employees perform equal work. This presumption is
borne by logic and human experience. If the employer
pays one employee less than the rest, it is not for that
employee to explain why he receives less or why the
others receive more. That would be adding insult to
injury. The employer has discriminated against that
employee; it is for the employer to explain why the
employee is treated unfairly.
The employer in this case failed to discharge this
burden. There is no evidence here that foreign-hires
perform 25% more efficiently or effectively than the localhires.
Both groups have similar functions and
responsibilities, which they perform under similar working
conditions.
The School cannot invoke the need to entice
foreign-hires to leave their domicile to rationalize the
distinction in salary rates without violating the principle of
equal work for equal pay.
Xxx
While we recognize the need of the School to
attract foreign-hires, salaries should not be used as an
enticement to the prejudice of local-hires. The local-hires
perform the same services as foreign-hires and they ought
to be paid the same salaries as the latter. For the same
reason, the "dislocation factor" and the foreign-hires'
limited tenure also cannot serve as valid bases for the
distinction in salary rates. The dislocation factor and
limited tenure affecting foreign-hires are adequately
compensated by certain benefits accorded them which are
not enjoyed by local-hires, such as housing,
transportation, shipping costs, taxes and home leave
travel allowances.

[I]t would be an affront to both the spirit and

letter of these provisions if the State, in spite of its
primordial obligation to promote and ensure equal
employment opportunities, closes its eyes to unequal and
discriminatory terms and conditions of employment x x x.

The Constitution enjoins the State to protect the

rights of workers and promote their welfare, to afford
labor full protection. The State, therefore, has the right
and duty to regulate the relations between labor and
capital. These relations are not merely contractual but
are so impressed with public interest that labor contracts,
collective bargaining agreements included, must yield to
the common good.
Should such contracts contain
stipulations that are contrary to public policy, courts will
not hesitate to strike down these stipulations.

Discrimination, particularly in terms of wages, is

frowned upon by the Labor Code.
Article 135, for
example, prohibits and penalizes the payment of lesser
compensation to a female employee as against a male
employee for work of equal value. Article 248 declares it
an unfair labor practice for an employer to discriminate in
regards to wages in order to encourage or discourage
membership in any labor organization. X x x

In this case, we find the point-of-hire classification

employed by respondent School to justify the distinction in
the salary rates of foreign-hires and local-hires to be an
invalid classification. There is no reasonable distinction
between the services rendered by foreign-hires and localhires. The practice of the School of according higher
salaries to foreign-hires contravenes public policy and,
certainly, does not deserve the sympathy of this Court.

The
foregoing
provisions
impregnably
institutionalize in this jurisdiction the long honored legal
truism of Equal pay for equal work. Persons who work
with substantially equal qualifications, skill, effort and
responsibility, under similar conditions, should be paid
similar salaries.
This rule applies to the School

172.
Accused-appellant Romeo G. Jalosjos filed a
motion before the Court asking that he be allowed to
fully discharge the duties of a Congressman, including

(International School Alliance of Educators (ISAE)

v. Hon. Leonardo A. Quisumbing, G.R. No. 128845,
June 1, 2000, 1st Div. [Kapunan])

77

attendance at legislative sessions and committee

meetings despite his having been convicted in the first
instance of a non-bailable offense. Does being an
elective official result in a substantial distinction that
allows different treatment? Is being a Congressman a
substantial differentiation which removes the accusedappellant as a prisoner from the same class as all
persons validly confined under law?
Held: In the ultimate analysis, the issue before
us boils down to a question of constitutional equal
protection.
Xxx
The performance of legitimate and even essential
duties by public officers has never been an excuse to free
a person validly in prison. The duties imposed by the
mandate of the people are multifarious. The accusedappellant asserts that the duty to legislate ranks highest in
the hierarchy of government. The accused-appellant is
only one of 250 members of the House of
Representatives, not to mention the 24 members of the
Senate, charged with the duties of legislation. Congress
continues to function well in the physical absence of one
or a few of its members. Depending on the exigency of
Government that has to be addressed, the President or
the Supreme Court can also be deemed the highest for
that particular duty.
The importance of a function
depends on the need for its exercise. The duty of a
mother to nurse her infant is most compelling under the
law of nature. A doctor with unique skills has the duty to
save the lives of those with a particular affliction. An
elective governor has to serve provincial constituents. A
police officer must maintain peace and order. Never had
the call of a particular duty lifted a prisoner into a
different classification from those others who are validly
restrained by law.
A strict scrutiny of classifications is essential lest
wittingly or otherwise, insidious discriminations are made
in favor of or against groups or types of individuals.
The Court cannot validate badges of inequality.
The necessities imposed by public welfare may justify
exercise of government authority to regulate even if
thereby certain groups may plausibly assert that their
interests are disregarded.
We, therefore, find that election to the position of
Congressman is not a reasonable classification in criminal
law enforcement. The functions and duties of the office
are not substantial distinctions which lift him from the
class of prisoners interrupted in their freedom and
restricted in liberty of movement. Lawful arrest and
confinement are germane to the purposes of the law and
apply to all those belonging to the same class.
Xxx
It can be seen from the foregoing that
incarceration, by its nature, changes an individuals status
in society. Prison officials have the difficult and often
thankless job of preserving the security in a potentially
explosive setting, as well as of attempting to provide
rehabilitation that prepare inmates for re-entry into the
social mainstream. Necessarily, both these demands
require the curtailment and elimination of certain rights .
Premises considered, we are constrained to rule
against the accused-appellants claim that re-election to

public office gives priority to any other right or interest,

including the police power of the State. (People v.

Jalosjos, 324 SCRA 689, Feb. 3, 2000, En Banc

[Ynares-Santiago])

173.
Appellant, who was charged with Illegal
Recruitment in the RTC of Zamboanga City, invokes
the equal protection clause in her defense. She points
out that although the evidence purportedly shows that
Jasmine Alejandro handed out application forms and
even received Lourdes Modestos payment, appellant
was the only one criminally charged. Alejandro, on
the other hand, remained scot-free. From this,
appellant concludes that the prosecution discriminated
against her on grounds of regional origins. Appellant
is a Cebuana while Alejandro is a Zamboanguena, and
the alleged crime took place in Zamboanga City.
Held: The argument has no merit.
The prosecution of one guilty while others equally
guilty are not prosecuted, however, is not, by itself, a
denial of the equal protection of the laws. Where the
official action purports to be in conformity to the statutory
classification, an erroneous or mistaken performance of
the statutory duty, although a violation of the statute, is
not without more a denial of the equal protection of the
laws. The unlawful administration by officers of a statute
fair on its face, resulting in its unequal application to those
who are entitled to be treated alike, is not a denial of
equal protection, unless there is shown to be present in it
an element of intentional or purposeful discrimination.
This may appear on the face of the action taken with
respect to a particular class or person, or it may only be
shown by extrinsic evidence showing a discriminatory
design over another not to be inferred from the action
itself. But a discriminatory purpose is not presumed,
there must be a showing of clear and intentional
discrimination. Appellant has failed to show that, in
charging appellant in court, that there was a clear and
intentional discrimination on the part of the prosecuting
officials.
The discretion of who to prosecute depends on
the prosecutions sound assessment whether the evidence
before it can justify a reasonable belief that a person has
committed an offense. The presumption is that the
prosecuting officers regularly performed their duties, and
this presumption can be overcome only by proof to the
contrary, not by mere speculation. Indeed, appellant has
not presented any evidence to overcome this
presumption.
The mere allegation that appellant, a
Cebuana, was charged with the commission of a crime,
while a Zamboanguena, the guilty party in appellants
eyes, was not, is insufficient to support a conclusion that
the prosecution officers denied appellant equal protection
of the laws.
There is also common sense practicality in
sustaining appellants prosecution.
While all persons accused of crime are to
be treated on a basis of equality before the law, it
does not follow that they are to be protected in
the commission of crime.
It would be
unconscionable, for instance, to excuse a
defendant guilty of murder because others have
murdered with impunity. The remedy for unequal
enforcement of the law in such instances does not
lie in the exoneration of the guilty at the expense
of society x x x. Protection of the law will be
78

extended to all persons equally in the pursuit of

their lawful occupations, but no person has the
right to demand protection of the law in the
commission of a crime (People v. Montgomery,

117 P.2d 437 [1941]).

Likewise,

[i]f the failure of prosecutors to enforce

the criminal laws as to some persons should be
converted into a defense for others charged with
crime, the result would be that the trial of the
district attorney for nonfeasance would become
an issue in the trial of many persons charged with
heinous crimes and the enforcement of law would
suffer a complete breakdown (State v. Hicks, 325

P.2d 794 [1958]).

(People v. Dela Piedra, 350 SCRA 163, Jan. 24,
2001, 1st Div. [Kapunan])
The Right against Unreasonable Searches and
Seizures

174.
Discuss the constitutional requirement that a
judge, in issuing a warrant of arrest, must determine
probable
cause
personally.
Distinguish
determination of probable cause by the prosecutor
and determination of probable cause by the judge.
Held:
It must be stressed that the 1987
Constitution requires the judge to determine probable
cause personally, a requirement which does not appear
in the corresponding provisions of our previous
constitutions. This emphasis evinces the intent of the
framers to place a greater degree of responsibility upon
trial judges than that imposed under previous
Constitutions.
In Soliven v. Makasiar, this Court pronounced:
What the Constitution underscores is the
exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of
probable cause. In satisfying himself of the
existence of probable cause for the issuance of a
warrant of arrest, the judge is not required to
personally examine the complainant and his
witnesses. Following established doctrine and
procedure, he shall: (1) personally evaluate the
report and the supporting documents submitted
by the fiscal regarding the existence of probable
cause and, on the basis thereof, issue a warrant
of arrest; or (2) if in the basis thereof he finds no
probable cause, he may disregard the fiscals
report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause.

Ho

v. People (Ibid.) summarizes

jurisprudence on the matter as follows:

existing

Lest we be too repetitive, we only wish

to emphasize three vital matters once more: First,
as held in Inting, the determination of probable
cause by the prosecutor is for a purpose different
from that which is to be made by the judge.
Whether there is reasonable ground to believe
that the accused is guilty of the offense charged
and should be held for trial is what the prosecutor
passes upon. The judge, on the other hand,

determines whether a warrant of arrest should be

issued against the accused, i.e., whether there is
a necessity for placing him under immediate
custody in order not to frustrate the ends of
justice. Thus, even if both should base their
findings on one and the same proceeding or
evidence, there should be no confusion as to their
distinct objectives.

Second, since their objectives are

different, the judge cannot rely solely on the
report of the prosecutor in finding probable cause
to justify the issuance of a warrant of arrest.
Obviously and understandably, the contents of the
prosecutors report will support his own
conclusion that there is reason to charge the
accused for an offense and hold him for trial.
However, the judge must decide independently.
Hence, he must have supporting evidence, other
than the prosecutors bare report, upon which to
legally sustain his own findings on the existence
(or nonexistence) of probable cause to issue an
arrest order. This responsibility of determining
personally and independently the existence or
nonexistence of probable cause is lodged in him
by no less than the most basic law of the land.
Parenthetically, the prosecutor could ease the
burden of the judge and speed up the litigation
process by forwarding to the latter not only the
information and his bare resolution finding
probable cause, but also so much of the records
and the evidence on hand as to enable the His
Honor to make his personal and separate judicial
finding on whether to issue a warrant of arrest.
Lastly, it is not required that the complete
or entire records of the case during the

preliminary investigation be submitted to and

examined by the judge. We do not intend to
unduly burden trial courts by obliging them to
examine the complete records of every case all
the time simply for the purpose of ordering the
arrest of an accused. What is required, rather, is
that the judge must have sufficient supporting
documents (such as the complaint, affidavits,
counter-affidavits, sworn statements of witnesses
or transcript of stenographic notes, if any) upon
which to make his independent judgment or, at
the very least, upon which to verify the findings of
the prosecutor as to the existence of probable
cause. The point is: he cannot rely solely and
entirely on the prosecutors recommendation, as
Respondent Court did in this case. Although the
prosecutor enjoys the legal presumption of
regularity in the performance of his official duties
and functions, which in turn gives his report the
presumption of accuracy, the Constitution, we
repeat, commands the judge to personally
determine probable cause in the issuance of
warrants of arrest. This Court has consistently
held that a judge fails in his bounden duty if he
relies merely on the certification or the report of
the investigating officer. (Citations omitted)
In the case at bench, respondent admits that he
issued the questioned warrant as there was no reason for
(him) to doubt the validity of the certification made by the
Assistant Prosecutor that a preliminary investigation was
conducted and that probable cause was found to exist as
against those charged in the information filed. The
statement is an admission that respondent relied solely
79

and completely on the certification made by the fiscal that

probable cause exists as against those charged in the
information and issued the challenged warrant of arrest
on the sole basis of the prosecutors findings and
recommendations. He adopted the judgment of the
prosecutor regarding the existence of probable cause as
his own. (Abdula v. Guiani, 326 SCRA 1, Feb. 18,

2000, 3rd Div. [Gonzaga-Reyes])

175.
In an application for search warrant, the
application was accompanied by a sketch of the
compound at 516 San Jose de la Montana St., Mabolo,
Cebu City, indicating the 2-storey residential house of
private respondent with a large X enclosed in a
square. Within the same compound are residences of
other people, workshops, offices, factories and
warehouse. The search warrant issued, however,
merely indicated the address of the compound which
is 516 San Jose de la Montana St., Mabolo, Cebu City.
Did this satisfy the constitutional requirement under
Section 2, Article III that the place to be searched
must be particularly described?
Held: This Court has held that the applicant
should particularly describe the place to be searched and
the person or things to be seized, wherever and whenever
it is feasible. In the present case, it must be noted that
the application for a search warrant was accompanied by
a sketch of the compound at 516 San Jose de la Montana
St., Mabolo, Cebu City. The sketch indicated the 2-storey
residential house of private respondent with a large "X"
enclosed in a square. Within the same compound are
residences of other people, workshops, offices, factories
and warehouse. With this sketch as the guide, it could
have been very easy to describe the residential house of
private respondent with sufficient particularity so as to

segregate it from the other buildings or structures inside

the same compound. But the search warrant merely

indicated the address of the compound which is 516 San

Jose de la Montana St., Mabolo, Cebu City.
This
description of the place to be searched is too general and
does not pinpoint the specific house of private
respondent. Thus, the inadequacy of the description of
the residence of private respondent sought to be searched
has characterized the questioned search warrant as a
general warrant, which is violative of the constitutional
requirement. (People v. Estrada, 296 SCRA 383,

400, [Martinez])

176.
Can the place to be searched, as set out in the
warrant, be amplified or modified by the officers own
personal knowledge of the premises, or the evidence
they adduce in support of their application for the
warrant?
Held:
Such a change is proscribed by the
Constitution which requires inter alia the search warrant
to particularly describe the place to be searched as well as
the persons or things to be seized. It would concede to
police officers the power of choosing the place to be
searched, even if it not be that delineated in the warrant.
It would open wide the door to abuse of the search
process, and grant to officers executing a search warrant
that discretion which the Constitution has precisely
removed from them.
The particularization of the
description of the place to be searched may properly be
done only by the Judge, and only in the warrant itself; it
cannot be left to the discretion of the police officers
conducting the search.

It is neither fair nor licit to allow police officers to

search a place different from that stated in the warrant on
the claim that the place actually searched although not
that specified in the warrant is exactly what they had in
view when they applied for the warrant and had
demarcated in their supporting evidence.
What is
material in determining the validity of a search is the place
stated in the warrant itself, not what applicants had in
their thoughts, or had represented in the proofs they
submitted to the court issuing the warrant. (People v.

Court of Appeals, 291 SCRA 400, June 26, 1998

[Narvasa])
177.
Is a respondent in an Extradition Proceeding
entitled to notice and hearing before the issuance of a
warrant of arrest?
Held: Both parties cite Section 6 of PD 1069 in
support of their arguments. X x x
Does this provision sanction RTC Judge
Purganans act of immediately setting for hearing the
issuance of a warrant of arrest? We rule in the negative.
1. On the Basis of the Extradition Law
It is significant to note that Section 6 of PD 1069,
our Extradition Law, uses the word immediate to qualify
the arrest of the accused. This qualification would be
rendered nugatory by setting for hearing the issuance of
the arrest warrant. Hearing entails sending notices to the
opposing parties, receiving facts and arguments from
them, and giving them time to prepare and present such
facts and arguments. Arrest subsequent to a hearing can
no longer be considered immediate. The law could not
have intended the word as a mere superfluity but, on the
whole, as a means of impairing a sense of urgency and
swiftness in the determination of whether a warrant of
arrest should be issued.
By using the phrase if it appears, the law further
conveys that accuracy is not as important as speed at
such early stage. The trial court is not expected to make
an exhaustive determination to ferret out the true and
actual situation, immediately upon the filing of the
petition. From the knowledge and the material then
available to it, the court is expected merely to get a good
first impression a prima facie finding sufficient to
make a speedy initial determination as regards the arrest
and detention of the accused.
Xxx
We stress that the prima facie existence of
probable cause for hearing the petition and, a priori, for
issuing an arrest warrant was already evident from the
Petition itself and its supporting documents. Hence, after
having already determined therefrom that a prima facie
finding did exist, respondent judge gravely abused his
discretion when he set the matter for hearing upon
motion of Jimenez.
Moreover, the law specifies that the court sets a
hearing upon receipt of the answer or upon failure of the
accused to answer after receiving the summons. In
connection with the matter of immediate arrest, however,
the word hearing is notably absent from the provision.
Evidently, had the holding of a hearing at that stage been
intended, the law could have easily so provided. It also
bears emphasizing at this point that extradition
proceedings are summary (See Sec. 9, PD 1069) in
80

nature. Hence, the silence of the Law and the Treaty

leans to the more reasonable interpretation that there is
no intention to punctuate with a hearing every little step
in the entire proceedings.
Xxx
Verily x x x sending to persons sought to be
extradited a notice of the request for their arrest and
setting it for hearing at some future date would give them
ample opportunity to prepare and execute an escape.
Neither the Treaty nor the Law could have intended that
consequence, for the very purpose of both would have
been defeated by the escape of the accused from the
requested state.
2. On the Basis of the Constitution
Even Section 2 of Article III of our Constitution x
x x does not require a notice or a hearing before the
issuance of a warrant of arrest. X x x
To determine probable cause for the issuance of
arrest warrants, the Constitution itself requires only the
examination under oath or affirmation of complainants
and the witnesses they may produce.
There is no
requirement to notify and hear the accused before the
issuance of warrants of arrest.
In Ho v. People and in all the cases cited therein,
never was a judge required to go to the extent of
conducting a hearing just for the purpose of personally
determining probable cause for the issuance of a warrant
of arrest. All we required was that the judge must have
sufficient supporting documents upon which to make his
independent judgment, or at the very least, upon which to
verify the findings of the prosecutor as to the existence of
probable cause.
In Webb v. De Leon, the Court categorically
stated that a judge was not supposed to conduct a
hearing before issuing a warrant of arrest x x x.
At most, in cases of clear insufficiency of evidence
on record, judges merely further examine complainants
and their witnesses. In the present case, validating the
act of respondent judge and instituting the practice of
hearing the accused and his witnesses at this early stage
would be discordant with the rationale for the entire
system. If the accused were allowed to be heard and
necessarily to present evidence during the prima facie
determination for the issuance of a warrant of arrest,
what would stop him from presenting his entire plethora
of defenses at this stage if he so desires in his effort
to negate a prima facie finding? Such a procedure could
convert the determination of a prima facie case into a fullblown trial of the entire proceedings and possibly make
trial of the main case superfluous. This scenario is also
anathema to the summary nature of extraditions.

(Government of the United States of America v.

Hon. Guillermo Purganan, G.R. No. 148571, Sept.
24, 2002, En Banc [Panganiban])

178.
What is search incidental to a lawful arrest?
Discuss.
Held: While a contemporaneous search of a
person arrested may be effected to discover dangerous
weapons or proofs or implements used in the commission
of the crime and which search may extend to the area
within his immediate control where he might gain

possession of a weapon or evidence he can destroy, a

valid arrest must precede the search. The process cannot
be reversed.
In a search incidental to a lawful arrest,
as the precedent arrest determines the validity of
the incidental search, the legality of the arrest is
questioned in a large majority of these cases,
e.g., whether an arrest was merely used as a
pretext for conducting a search. In this instance,
the law requires that there be first a lawful arrest
before a search can be made the process
cannot be reversed. (Malacat v. Court of Appeals,

283 SCRA 159, 175 [1997])

(People v. Chua Ho San, 308 SCRA 432, June 17,
1999, En Banc [Davide, Jr., C.J.])

179.
What is the plain view doctrine? What are its
requisites? Discuss.
Held: 1. Objects falling in plain view of an
officer who has a right to be in the position to have that
view are subject to seizure even without a search warrant
and may be introduced in evidence. The plain view
doctrine applies when the following requisites concur: (a)
the law enforcement officer in search of the evidence has
a prior justification for an intrusion or is in a position from
which he can view a particular area; (b) the discovery of
the evidence in plain view is inadvertent; (c) it is
immediately apparent to the officer that the item he
observes may be evidence of a crime, contraband or
otherwise subject to seizure. The law enforcement officer
must lawfully make an initial intrusion or properly be in a
position from which he can particularly view the area . In
the course of such lawful intrusion, he came inadvertently
across a piece of evidence incriminating the accused . The
object must be open to eye and hand and its discovery
inadvertent.
It is clear that an object is in plain view if the
object itself is plainly exposed to sight. The difficulty
arises when the object is inside a closed container.
Where the object seized was inside a closed package, the
object itself is not in plain view and therefore cannot be
seized without a warrant. However, if the package
proclaims its contents, whether by its distinctive
configuration, its transparency, or if its contents are
obvious to an observer, then the contents are in plain
view and may be seized. In other words, if the package is
such that an experienced observer could infer from its
appearance that it contains the prohibited article, then the
article is deemed in plain view. It must be immediately
apparent to the police that the items that they observe
may be evidence of a crime, contraband or otherwise
subject to seizure. (People v. Doria, 301 SCRA 668,

Jan. 22, 1999, En Banc [Puno, J.])

2.
For the doctrine to apply, the following
elements must be present:
a) a prior valid intrusion based on the valid
warrantless arrest in which the police are
legally present in the pursuit of their official
duties;
b) the evidence was inadvertently discovered by
the police who have the right to be where
they are; and
c) the evidence must be immediately apparent;
and
d) plain view justified mere seizure of evidence
without further search.
81

In the instant case, recall that PO2 Balut testified

that they first located the marijuana plants before
appellant was arrested without a warrant. Hence, there
was no valid warrantless arrest which preceded the search
of appellants premises. Note further that the police team
was dispatched to appellants kaingin precisely to search
for and uproot the prohibited flora. The seizure of
evidence in plain view applies only where the police
officer is not searching for evidence against the accused,
but inadvertently comes across an incriminating object .
Clearly, their discovery of the cannabis plants was not
inadvertent. We also note the testimony of SPO2 Tipay
that upon arriving at the area, they first had to look
around the area before they could spot the illegal plants.
Patently, the seized marijuana plants were not
immediately apparent and further search was needed.
In sum, the marijuana plants in question were not in
plain view or open to eye and hand. The plain view
doctrine, thus, cannot be made to apply.
Nor can we sustain the trial courts conclusion
that just because the marijuana plants were found in an
unfenced lot, appellant could not invoke the protection
afforded by the Charter against unreasonable searches by
agents of the State. The right against unreasonable
searches and seizures is the immunity of ones person,
which includes his residence, his papers, and other
possessions.
The guarantee refers to the right of
personal security of the individual. X x x, what is sought
to be protected against the States unlawful intrusion are
persons, not places. To conclude otherwise would not
only mean swimming against the stream, it would also
lead to the absurd logic that for a person to be immune
against unreasonable searches and seizures, he must be
in his home or office, within a fenced yard or a private
place. The Bill of Rights belongs as much to the person in
the street as to the individual in the sanctuary of his
bedroom. (People v. Abe Valdez, G.R. No. 129296,

Sept. 25, 2000, En Banc [Quisumbing])

3. Considering its factual milieu, this case falls

squarely under the plain view doctrine.
When Spencer wrenched himself free from the
grasp of PO2 Gaviola, he instinctively ran towards the
house of appellant. The members of the buy-bust team
were justified in running after him and entering the house
without a search warrant for they were hot in the heels of
a fleeing criminal. Once inside the house, the police
officers cornered Spencer and recovered the buy-bust
money from him. They also caught appellant in flagrante
delicto repacking the marijuana bricks which were in full
view on top of a table. x x x.
Hence, appellants subsequent arrest was likewise
lawful, coming as it is within the purview of Section 5(a)
of Rule 113 of the 1985 Rules on Criminal Procedure x x
x.
Section 5(a) is commonly referred to as the rule
on in flagrante delicto arrests. Here two elements must
concur: (1) the person to be arrested must execute an
overt act indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and (2)
such overt act is done in the presence or within the view
of the arresting officer. Thus, when appellant was seen
repacking the marijuana, the police officers were not only
authorized but also duty-bound to arrest him even without
a warrant. (People v. Elamparo, 329 SCRA 404, 414-

415, March 31, 2000, 2nd Div. [Quisumbing])

180.

What is a stop-and-frisk search?

Held: 1. In the landmark case of Terry v. Ohio,

a stop-and-frisk was defined as the vernacular designation
of the right of a police officer to stop a citizen on the
street, interrogate him, and pat him for weapon(s):
x x x (W)here a police officer observes
an unusual conduct which leads him reasonably to
conclude in light of his experience that criminal
activity may be afoot and that the persons with
whom he is dealing may be armed and presently
dangerous, where in the course of investigating
this behavior he identified himself as a policeman
and make reasonable inquiries, and where
nothing in the initial stages of the encounter
serves to dispel his reasonable fear for his own or
others safety, he is entitled for the protection of
himself or others in the area to conduct a
carefully limited search of the outer clothing of
such persons in an attempt to discover weapons
which might be used to assault him. Such a
search is a reasonable search under the Fourth
Amendment, and any weapon seized may
properly be introduced in evidence against the
person from whom they were taken. (Herrera, A

Handbook on Arrest, Search and Seizure and

Custodial Investigation, 1995 ed., p. 185; and
Terry v. Ohio, supra, p. 911)
In allowing such a search, the United States
Supreme Court held that the interest of effective crime
prevention and detection allows a police officer to
approach a person, in appropriate circumstances and
manner, for purposes of investigating possible criminal
behavior even though there is insufficient probable cause
to make an actual arrest.
In admitting in evidence two guns seized during
the stop-and-frisk, the US Supreme Court held that what
justified the limited search was the more immediate
interest of the police officer in taking steps to assure
himself that the person with whom he was dealing was
not armed with a weapon that could unexpectedly and
fatally be used against him.
It did not, however, abandon the rule that the
police must, whenever practicable, obtain advance judicial
approval of searches and seizures through the warrant
procedure, excused only by exigent circumstances.

(Manalili v. CA, 280 SCRA 400, Oct. 9, 1997

[Panganiban])
2. We now proceed to the justification for and
allowable scope of a stop-and-frisk as a limited
protective search of outer clothing for weapons, as laid
down in Terry, thus:
We merely hold today that where a police
officer observes unusual conduct which leads him
reasonably to conclude in light of his experience
that criminal activity may be afoot and that the
persons with whom he is dealing may be armed
and presently dangerous, where in the course of
investigating this behavior he identifies himself as
a policeman and makes reasonable inquiries, and
where nothing in the initial stages of the
encounter serves to dispel his reasonable fear for
his own or others safety, he is entitled for the
protection of himself and others in the area to
82

conduct a carefully limited search of the outer

clothing of such persons in an attempt to discover
weapons which might be used to assault him.
Such a search is a reasonable search under the
Fourth Amendment (Terry, at 911. In fact, the

Court noted that the sole justification for a stopand-frisk was the protection of the police officer
and others nearby; while the scope of the search
conducted in the case was limited to patting down
the outer clothing of petitioner and his
companions, the police officer did not place his
hands in their pockets nor under the outer surface
of their garments until he had felt weapons, and
then he merely reached for and removed the
guns.
This did not constitute a general
exploratory search, Id.)
Other notable points of Terry are that while
probable cause is not required to conduct a stop-andfrisk, it nevertheless holds that mere suspicion or a
hunch will not validate a stop-and-frisk. A genuine
reason must exist, in light of the police officers
experience and surrounding conditions, to warrant the
belief that the person detained has weapons concealed
about him. Finally, a stop-and-frisk serves a two-fold
interest: (1) the general interest of effective crime
prevention and detection, which underlies the recognition
that a police officer may, under appropriate circumstances
and in an appropriate manner, approach a person for
purposes of investigating possible criminal behavior even
without probable cause; and (2) the more pressing
interest of safety and self-preservation which permit the
police officer to take steps to assure himself that the
person with whom he deals is not armed with a deadly
weapon that could unexpectedly and fatally be used
against the police officer.
(Malacat v. Court of

Appeals, 283 SCRA 159, Dec. 12, 1997 [Davide])

181.

Are searches at checkpoints valid? Discuss.

Held:
This Court has ruled that not all
checkpoints are illegal. Those which are warranted by the
exigencies of public order and are conducted in a way
least intrusive to motorists are allowed. For, admittedly,
routine checkpoints do intrude, to a certain extent, on
motorists right to free passage without interruption, but
it cannot be denied that, as a rule, it involves only a brief
detention of travelers during which the vehicles occupants
are required to answer a brief question or two. For as
long as the vehicle is neither searched nor its occupants
subjected to a body search, and the inspection of the
vehicle is limited to a visual search, said routine checks
cannot be regarded as violative of an individuals right
against unreasonable search.
In fact, these routine
checks, when conducted in a fixed area, are even less
intrusive. (People v. Usana, 323 SCRA 754, Jan. 28,

2000, 1st Div. [Davide, CJ])

182.
Illustrative case of valid search at checkpoint
conducted to implement the gun ban law during
election. Is it still necessary that checkpoints be preannounced?
Held: Accused-appellants assail the manner by
which the checkpoint in question was conducted. They
contend that the checkpoint manned by elements of the
Makati Police should have been announced. They also
complain of its having been conducted in an arbitrary and
discriminatory manner.

We take judicial notice of the existence of the

COMELEC resolution imposing a gun ban during the
election period issued pursuant to Section 52(c) in relation
to Section 26(q) of the Omnibus Election Code (Batas
Pambansa Blg. 881). The national and local elections in
1995 were held on 8 May, the second Monday of the
month. The incident, which happened on 5 April 1995,
was well within the election period.
Xxx
The checkpoint herein conducted was in
pursuance of the gun ban enforced by the COMELEC. The
COMELEC would be hard put to implement the ban if its
deputized agents were limited to a visual search of
pedestrians. It would also defeat the purpose for which
such ban was instituted. Those who intend to bring a gun
during said period would know that they only need a car
to be able to easily perpetrate their malicious designs.
The facts adduced do not constitute a ground for
a violation of the constitutional rights of the accused
against illegal search and seizure. PO3 Suba admitted
that they were merely stopping cars they deemed
suspicious, such as those whose windows are heavily
tinted just to see if the passengers thereof were carrying
guns. At best they would merely direct their flashlights
inside the cars they would stop, without opening the cars
doors or subjecting its passengers to a body search.
There is nothing discriminatory in this as this is what the
situation demands.
We see no need for checkpoints to be announced
x x x. Not only would it be impractical, it would also
forewarn those who intend to violate the ban. Even so,
badges of legitimacy of checkpoints may still be inferred
from their fixed location and the regularized manner in
which they are operated. (People v. Usana, 323 SCRA

754, Jan. 28, 2000, 1st Div. [Davide, CJ])

183.
Do the ordinary rights against unreasonable
searches and seizures apply to searches conducted at
the airport pursuant to routine airport security
procedures?
Held: Persons may lose the protection of the
search and seizure clause by exposure of their persons or
property to the public in a manner reflecting a lack of
subjective expectation of privacy, which expectation
society is prepared to recognize as reasonable. Such
recognition is implicit in airport security procedures. With
increased concern over airplane hijacking and terrorism
has come increased security at the nations airports.
Passengers attempting to board an aircraft routinely pass
through metal detectors; their carry-on baggage as well
as checked luggage are routinely subjected to x-ray scans.
Should these procedures suggest the presence of
suspicious objects, physical searches are conducted to
determine what the objects are. There is little question
that such searches are reasonable, given their minimal
intrusiveness, the gravity of the safety interests involved,
and the reduced privacy expectations associated with
airline travel. Indeed, travelers are often notified through
airport public address systems, signs, and notices in their
airline tickets that they are subject to search and, if any
prohibited materials or substances are found, such would
be subject to seizure.
These announcements place
passengers on notice that ordinary constitutional
protections against warrantless searches and seizures do
not apply to routine airport procedures. (People v. Leila
83

Johnson, G.R. No. 138881, Dec. 18, 2000, 2nd Div.

[Mendoza])
184.
May the constitutional protection against
unreasonable searches and seizures be extended to
acts committed by private individuals?
Held:
As held in People v. Marti, the
constitutional protection against unreasonable searches
and seizures refers to the immunity of one's person from
interference by government and it cannot be extended to
acts committed by private individuals so as to bring it
within the ambit of alleged unlawful intrusion. (People v.

Mendoza, 301 SCRA 66, Jan. 18, 1999, 1st Div.

[Melo])
185.
Should
the
seized
drugs
(which
are
pharmaceutically
correct
but
not
properly
documented) subject of an illegal search (because the
applicant failed to allege in the application for search
warrant that the subject drugs for which she was
applying for search warrant were either fake,
misbranded, adulterated, or unregistered,) be
returned to the owner?
Ans.: No. Instead, they should be promptly
disposed of in the manner provided by law in order to
insure that the same do not fall into the wrong hands who
might use the drugs underground. As clarified in People

v. Judge Estrella T. Estrada (G.R No. 124461, June

26, 2000, Spcl. 2nd Div. [Ynares-Santiago]):

With the State's obligation to protect and

promote the right to health of the people and
instill health consciousness among them (Article
II, Section 15, 1987 Constitution), in order to
develop a healthy and alert citizenry (Article XIV,
Section 19[1]), it became mandatory for the
government to supervise and control the
proliferation of drugs in the market.
The
constitutional mandate that "the State shall adopt
an integrated and comprehensive approach to
health development which shall endeavor to make
essential goods, health and other social services
available to all people at affordable cost" (Article
XIII, Section 11) cannot be neglected. This is
why "the State shall establish and maintain an
effective food and drug regulatory system."
(Article XIII, Section 12)
The BFAD is the
government agency vested by law to make a
mandatory and authoritative determination of the
true therapeutic effect of drugs because it
involves technical skill which is within its special
competence. The health of the citizenry should
never be compromised. To the layman, medicine
is a cure that may lead to better health.
If the seized 52 boxes of drugs are
pharmaceutically correct but not properly
documented, they should be promptly disposed of
in the manner provided by law in order to ensure
that the same do not fall into the wrong hands
who might use the drugs underground. X x x.
The policy of the law enunciated in R.A. No. 8203
is to protect the consumers as well as the licensed
businessmen. Foremost among these consumers
is the government itself which procures medicines
and distributes them to the local communities
through direct assistance to the local health
centers or through outreach and charity
programs. Only with the proper government

sanctions can medicines and drugs circulate the

market. We cannot afford to take any risk, for
the life and health of the citizenry are as precious
as the existence of the State.

186.
Do Regional Trial Courts have competence to pass
upon the validity or regularity of seizure and forfeiture
proceedings conducted by the Bureau of Customs and
to enjoin or otherwise interfere with these
proceedings?
Held: In Jao v. Court of Appeals, this Court,
reiterating its rulings x x x said:
There is no question that Regional Trial
Courts are devoid of any competence to pass
upon the validity or regularity of seizure and
forfeiture proceedings conducted by the Bureau of
Customs and to enjoin or otherwise interfere with
these proceedings. The Collector of Customs
sitting in seizure and forfeiture proceedings has
exclusive jurisdiction to hear and determine all
questions touching on the seizure and forfeiture
of dutiable goods. The Regional Trial Courts are
precluded from assuming cognizance over such
matters even through petitions of certiorari,
prohibition or mandamus.
It is likewise well-settled that the
provisions of the Tariff and Customs Code and
that of Republic Act No. 1125, as amended,
otherwise known as An Act Creating the Court of
Tax Appeals, specify the proper fora and
procedure for the ventilation of any legal
objections or issues raised concerning these
proceedings. Thus, actions of the Collector of
Customs are appealable to the Commissioner of
Customs, whose decision, in turn, is subject to the
exclusive appellate jurisdiction of the Court of Tax
Appeals and from there to the Court of Appeals.
The rule that Regional Trial Courts have
no review powers over such proceedings is
anchored upon the policy of placing no
unnecessary hindrance on the governments drive,
not only to prevent smuggling and other frauds
upon Customs, but more importantly, to render
effective and efficient the collection of import and
export duties due the State, which enables the
government to carry out the functions it has been
instituted to perform.
Even if the seizure by the Collector of
Customs were illegal, x x x we have said that such
act does not deprive the Bureau of Customs of
jurisdiction thereon.

(Bureau of Customs v. Ogario, 329 SCRA 289, 296298, March 30, 2000, 2nd Div. [Mendoza])
187.
Accused-appellant assails the validity of his arrest
and his subsequent convictions for the two crimes.
Both the trial court and the Court of Appeals found
that the arrest and subsequent seizure were legal.
Held: In the cases at bar, the police saw the gun
tucked in appellants waist when he stood up. The gun
was plainly visible. No search was conducted as none was
necessary. Accused-appellant could not show any license
for the firearm, whether at the time of his arrest or
thereafter. Thus, he was in effect committing a crime in
the presence of the police officers. No warrant of arrest
84

was necessary in such a situation, it being one of the

recognized exceptions under the Rules.
As a consequence of appellants valid warrantless
arrest, he may be lawfully searched for dangerous
weapons or anything which may be used as proof of the
commission of an offense, without a search warrant, as
provided in Rule 126, Section 12. This is a valid search
incidental to a lawful arrest. The subsequent discovery in
his car of drug paraphernalia and the crystalline
substance, which, was later identified as shabu, though in
a distant place from where the illegal possession of
firearm was committed, cannot be said to have been
made during an illegal search. As such, the seized items
do not fall within the exclusionary clause x x x. Hence,
not being fruits of the poisonous tree x x x the objects
found at the scene of the crime, such as the firearm, the
shabu and the drug paraphernalia, can be used as
evidence against appellant. Besides, it has been held that
drugs discovered as a result of a consented search is
admissible in evidence. (Citations omitted.) (People v.

Go, 354 SCRA 338, Mar. 14, 2001, 1st Div. [YnaresSantiago])
188.
Discuss the nature of an in flagrante delicto
warrantless arrest. Illustrative case.
Held: In the case at bar, the court a quo
anchored its judgment of conviction on a finding that the
warrantless arrest of accused-appellants, and the
subsequent search conducted by the peace officers, are
valid because accused-appellants were caught in flagrante
delicto in possession of prohibited drugs. This brings us
to the issue of whether or not the warrantless arrest,
search and seizure in the present case fall within the
recognized exceptions to the warrant requirement.
In People v. Chua Ho San, the Court held that in
cases of in flagrante delicto arrests, a peace officer or a
private person may, without a warrant, arrest a person
when, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense. The arresting office, therefore, must
have personal knowledge of such fact or, as a recent case
law adverts to, personal knowledge of facts or
circumstances convincingly indicative or constitutive of
probable cause. As discussed in People v. Doria, probable
cause means an actual belief or reasonable grounds of
suspicion. The grounds of suspicion are reasonable when,
in the absence of actual belief of the arresting officers, the
suspicion that the person to be arrested is probably guilty
of committing the offense, is based on actual facts, i.e.,
supported by circumstances sufficiently strong in
themselves to create the probable cause of guilt of the
person to be arrested. A reasonable suspicion therefore
must be founded on probable cause, coupled with good
faith on the part of the peace officers making the arrest.
As applied to in flagrante delicto arrests, it is
settled that reliable information alone, absent any overt
act indicative of a felonious enterprise in the presence and
within the view of the arresting officers, are not sufficient
to constitute probable cause that would justify an in
flagrante delicto arrest. Thus, in People v. Aminnudin, it
was held that the accused-appellant was not, at the
moment of his arrest, committing a crime nor was it
shown that he was about to do so or that he had just
done so.
What he was doing was descending the
gangplank of the M/V Wilcon 9 and there was no outward
indication that called for his arrest. To all appearances,
he was like any of the other passengers innocently

disembarking from the vessel. It was only when the

informer pointed to him as the carrier of the marijuana
that he suddenly became suspect and so subject to
apprehension.
Likewise, in People v. Mengote, the Court did not
consider eyes x x x darting from side to side x x x [while]
holding x x x [ones] abdomen, in a crowded street at
11:30 in the morning, as overt acts and circumstances
sufficient to arouse suspicion and indicative of probable
cause. According to the Court, [b]y no stretch of the
imagination could it have been inferred from these acts
that an offense had just been committed, or was actually
being committed, or was at least being attempted in [the
arresting officers] presence. So also, in People v.
Encinada, the Court ruled that no probable cause is
gleanable from the act of riding a motorela while holding
two plastic baby chairs.
Then, too, in Malacat v. Court of Appeals, the trial
court concluded that petitioner was attempting to commit
a crime as he was standing at the corner of Plaza
Miranda and Quezon Boulevard with his eyes moving
very fast and looking at every person that come (sic)
nearer (sic) to them. In declaring the warrantless arrest
therein illegal, the Court said:
Here, there could have been no valid in
flagrante delicto arrest preceding the search in
light of the lack of personal knowledge on the
part of Yu, the arresting officer, or an overt
physical act, on the part of petitioner, indicating
that a crime had just been committed, was being
committed or was going to be committed.
It went on to state that
Second, there was nothing in petitioners
behavior or conduct which could have reasonably
elicited even mere suspicion other than that his
eyes were moving very fast an observation
which leaves us incredulous since Yu and his
teammates were nowhere near petitioner and it
was already 6:60 p.m., thus presumably dusk.
Petitioner and his companions were merely
standing at the corner and were not creating any
commotion or trouble x x x.
Third, there was at all no ground,
probable or otherwise, to believe that petitioner
was armed with a deadly weapon. None was
visible to Yu, for as he admitted, the alleged
grenade was discovered inside the front
waistline of petitioner, and from all indications as
to the distance between Yu and petitioner, any
telltale bulge, assuming that petitioner was indeed
hiding a grenade, could not have been visible to
Yu.
Clearly, to constitute a valid in flagrante delicto
arrest, two requisites must concur: (1) the person to be
arrested must execute an overt act indicating that he has
just committed, is actually committing, or is attempting to
commit a crime; and (2) such overt act is done in the
presence or within the view of the arresting officer.
In the case at bar, accused-appellants manifested
no outward indication that would justify their arrest. In
holding a bag on board a trisikad, accused-appellants
could not be said to be committing, attempting to commit
or have committed a crime. It matters not that accused85

appellant Molina responded Boss, if possible we will settle

this to the request of SPO1 Pamplona to open the bag.
Such response which allegedly reinforced the suspicion
of the arresting officers that accused-appellants were
committing a crime, is an equivocal statement which
standing alone will not constitute probable cause to effect
an in flagrante delicto arrest. Note that were it not for
SPO1 Marino Paguidopon (who did not participate in the
arrest but merely pointed accused-appellants to the
arresting officers), accused-appellants could not be
subject of any suspicion, reasonable or otherwise.
While SPO1 Paguidopon claimed that he and his
informer conducted a surveillance of accused-appellant
Mula, SPO1 Paguidopon, however, admitted that he only
learned Mulas name and address after the arrest. What
is more, it is doubtful if SPO1 Paguidopon indeed
recognized accused-appellant Mula. It is worthy to note
that, before the arrest, he was able to see Mula in person
only once, pinpointed to him by his informer while they
were on the side of the road. These circumstances could
not have afforded SPO1 Paguidopon a closer look at
accused-appellant Mula, considering that the latter was
then driving a motorcycle when SPO1 Paguidopon caught
a glimpse of him. With respect to accused-appellant
Molina, SPO1 Paguidopon admitted that he had never
seen him before the arrest.
This belies the claim of SPO1 Pamplona that he
knew the name of accused-appellants even before the
arrest x x x.
The aforesaid testimony of SPO1 Pamplona,
therefore, is entirely baseless. SPO1 Pamplona could not
have learned the name of accused-appellants from SPO1
Paguidopon because Paguidopon himself, who allegedly
conducted the surveillance, was not even aware of
accused-appellants name and address prior to the arrest.
Evidently, SPO1 Paguidopon, who acted as
informer of the arresting officers, more so the arresting
officers themselves, could not have been certain of
accused-appellants identity, and were, from all
indications, merely fishing for evidence at the time of the
arrest.
Compared to People v. Encinada, the arresting
officer in the said case knew appellant Encinada even
before the arrest because of the latters illegal gambling
activities, thus, lending at least a semblance of validity on
the arrest effected by the peace officers. Nevertheless,
the Court declared in said case that the warrantless arrest
and the consequent search were illegal, holding that
[t]he prosecutions evidence did not show any suspicious
behavior when the appellant disembarked from the ship or
while he rode the motorela. No act or fact demonstrating
a felonious enterprise could be ascribed to appellant
under such bare circumstances. (People v. Encinada,

supra.)

Moreover, it could not be said that accusedappellants waived their right against unreasonable
searches and seizure.
Implied acquiescence to the
search, if there was any, could not have been more than
mere passive conformity given under intimidating or
coercive circumstances and is thus considered no consent
at all within the purview of the constitutional guarantee.
Withal, the Court holds that the arrest of accusedappellants does not fall under the exceptions allowed by
the rules. Hence, the search conducted on their person

was likewise illegal. Consequently, the marijuana seized

by the peace officers could not be admitted as evidence
against accused-appellants, and the Court is thus, left
with no choice but to find in favor of accused-appellants.

(People v. Molina, 352 SCRA 174, Feb. 19, 2001, En

Banc [Ynares-Santiago])
The Right to Privacy of Communications and
Correspondence

189.

What is the Anti-Wire Tapping Act (R.A. 4200)?

Ans.: R.A. 4200 is a special law prohibiting and

penalizing wire-tapping. Section 1 thereof provides:
Sec. 1. It shall be unlawful for any
person, not being authorized by all the parties to
any private communication or spoken word, to tap
any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or
record such communication or spoken word by
using a device commonly known as a dictaphone
or dictagraph or detectaphone or walkie-talkie or
tape-recorder, or however otherwise described:
It shall also be unlawful for any person,
be he a participant or not in the act or acts
penalized in the next preceding sentence, to
knowingly possess any tape record, wire record,
disc record, or any other such record, or copies
thereof, of any communication or spoken word
secured either before or after the effective date of
this Act in the manner prohibited by this law; or
to replay the same for any other person or
persons; or to communicate the contents thereof,
either verbally or in writing, or to furnish
transcriptions thereof, whether complete or
partial, to any other person: Provided, That the
use of such record or any copies thereof as
evidence in any civil, criminal investigation or trial
of offenses mentioned in section 3 hereof, shall
not be covered by this prohibition.
Section 4 thereof also provides:
Sec. 4. Any communication or spoken
word, or the existence, contents, substance,
purport, effect, or meaning of the same or any
part thereof, or any information therein contained
obtained or secured by any person in violation of
the preceding sections of this Act shall not be
admissible in evidence in any judicial, quasijudicial, legislative or administrative hearing or
investigation.

190.
Private respondent Rafael S. Ortanez filed with
the Regional Trial Court of Quezon City a complaint
for annulment of marriage with damages against his
wife, herein petitioner, Teresita Salcedo-Ortanez, on
grounds of lack of marriage license and/or
psychological incapacity of the petitioner. Among the
exhibits offered by private respondent were three (3)
cassette tapes of alleged telephone conversations
between petitioner and unidentified persons. The trial
court issued the assailed order admitting all of the
evidence offered by private respondent, including tape
recordings of telephone conversations of petitioner
with unidentified persons. These tape recordings
were made and obtained when private respondent
allowed his friends from the military to wire tap his
86

home telephone. Did the trial court act properly when

it admitted in evidence said tape recordings?
Held: Republic Act No. 4200 entitled An Act to
Prohibit and Penalize Wire Tapping and Other Related
Violations of the Privacy of Communication, and For Other
Purposes expressly makes such tape recordings
inadmissible in evidence. x x x.
Clearly, respondent trial court and Court of
Appeals failed to consider the afore-quoted provisions of
the law in admitting in evidence the cassette tapes in
question. Absent a clear showing that both parties to the
telephone conversations allowed the recording of the
same, the inadmissibility of the subject tapes is mandatory
under Rep. Act No. 4200.
Additionally, it should be mentioned that the
above-mentioned Republic Act in Section 2 thereof
imposes a penalty of imprisonment of not less than six (6)
months and up to six (6) years for violation of said Act.

(Salcedo-Ortanez v. Court of Appeals, 235 SCRA

111, Aug. 4, 1994 [Padilla])

191.
Two local media men in Lucena City went to the
police station to report alleged indecent show in one
night establishment in the City. At the station, there
was a heated argument between police officer
Navarro and Lingan, one of the two media men,
which led to fisticuffs. Lingan fell and his head hit the
pavement which caused his death. During the trial,
Jalbuena, the other media man, testified. Presented
in evidence to confirm his testimony was a voice
recording he had made of the heated discussion at
the police station between accused police officer
Navarro and the deceased, Lingan, which was taken
without the knowledge of the two. Is the voice
recording admissible in evidence in view of R.A. 4200,
which prohibits wire-tapping?
Held: [J]albuenas testimony is confirmed by the
voice recording he had made. It may be asked whether
the tape is admissible in view of R.A. No. 4200, which
prohibits wire tapping. The answer is in the affirmative. x
x x.
[T]he law prohibits the overhearing, intercepting,
or recording of private communications (Ramirez v. Court
of Appeals, 248 SCRA 590 [1995]). Since the exchange
between petitioner Navarro and Lingan was not private,
its tape recording is not prohibited. (Felipe Navarro v.

Court of Appeals, G.R. No. 121087, Aug. 26, 1999,

2nd Div. [Mendoza])
The Right to Privacy

192.

Is there a constitutional right to privacy?

Held: The essence of privacy is the right to be

let alone. In the 1965 case of Griswold v. Connecticut
(381 U.S. 479, 14 L. ed. 2D 510 [1965]), the United
States Supreme Court gave more substance to the right of
privacy when it ruled that the right has a constitutional
foundation. It held that there is a right of privacy which
can be found within the penumbras of the First, Third,
Fourth, Fifth and Ninth Amendments x x x. In the 1968
case of Morfe v. Mutuc (22 SCRA 424, 444-445), we
adopted the Griswold ruling that there is a constitutional

right to privacy x x x.

Indeed, if we extend our judicial gaze we will find

that the right of privacy is recognized and enshrined in
several provisions of our Constitution. (Morfe v. Mutuc,
22 SCRA 424, 444 [1968]; Cortes, The Constitutional
Foundations of Privacy, p. 18 [1970]). It is expressly

recognized in Section 3(1) of the Bill of Rights x x x.

Other facets of the right to privacy are protected in
various provisions of the Bill of Rights (viz: Secs. 1, 2, 6,
8, and 17. (Ople v. Torres, G.R. No. 127685, July 23,

1998 [Puno])

193.
What are the zones of privacy recognized and
protected in our laws?
Held: The Civil Code provides that [e]very
person shall respect the dignity, personality, privacy and
peace of mind of his neighbors and other persons and
punishes as actionable torts several acts by a person of
meddling and prying into the privacy of another. It also
holds a public officer or employee or any private individual
liable for damages for any violation of the rights and
liberties of another person, and recognizes the privacy of
letters and other private communications. The Revised
Penal Code makes a crime the violation of secrets by an
officer, the revelation of trade and industrial secrets, and
trespass to dwelling. Invasion of privacy is an offense in
special laws like the Anti-Wiretapping Law (R.A. 4200),
the Secrecy of Bank Deposits (R.A. 1405) and the
Intellectual Property Code (R.A. 8293). The Rules of
Court on privileged communication likewise recognize the
privacy of certain information (Section 24, Rule 130[c],
Revised Rules on Evidence). (Ople v. Torres, G.R. No.

127685, July 23, 1998 [Puno])

194.
Discuss why Administrative Order No. 308 (issued
by the President prescribing for a National ID system
for all citizens to facilitate business transactions with
government agencies engaged in the delivery of basic
services and social security provisions) should be
declared unconstitutional.
Held: We prescind from the premise that the
right to privacy is a fundamental right guaranteed by the
Constitution, hence, it is the burden of government to
show that A.O. No. 308 is justified by some compelling
state interest and that it is narrowly drawn. A.O. No. 308
is predicated on two considerations: (1) the need to
provide our citizens and foreigners with the facility to
conveniently transact business with basic service and
social security providers and other government
instrumentalities and (2) the need to reduce, if not totally
eradicate, fraudulent transactions and misrepresentations
by persons seeking basic services.
It is debatable
whether these interests are compelling enough to warrant
the issuance of A.O. No. 308. But what is not arguable is

the broadness, the vagueness, the overbreadth of A.O.

No. 308 which if implemented will put our peoples right to
privacy in clear and present danger.

The heart of A.O. No. 308 lies in its Section 4

which provides for a Population Reference Number (PRN)
as a common reference number to establish a linkage
among concerned agencies through the use of
Biometrics Technology and computer application
designs.

It is noteworthy that A.O. No. 308 does not state

what specific biological characteristics and what particular
biometrics technology shall be used to identify people who
will seek its coverage. Considering the banquet of options
available to the implementors of A.O. No. 308, the fear
87

that it threatens the right to privacy of our people is not

groundless.
A.O. No. 308 should also raise our antennas for a
further look will show that it does not state whether
encoding of data is limited to biological information alone
for identification purposes.
x x x.
Clearly, the
indefiniteness of A.O. No. 308 can give the government
the roving authority to store and retrieve information for a
purpose other than the identification of the individual
through his PRN.
The potential for misuse of the data to be
gathered under A.O. No. 308 cannot be underplayed x x
x. The more frequent the use of the PRN, the better the
chance of building a huge and formidable information
base through the electronic linkage of the files. The data
may be gathered for gainful and useful government
purposes; but the existence of this vast reservoir of
personal information constitutes a covert invitation to
misuse, a temptation that may be too great for some of
our authorities to resist.
It is plain and we hold that A.O. No. 308 falls
short of assuring that personal information which will be
gathered about our people will only be processed for
unequivocally specified purposes. The lack of proper
safeguards in this regard of A.O. No. 308 may interfere
with the individuals liberty of abode and travel by
enabling authorities to track down his movement; it may
also enable unscrupulous persons to access confidential
information and circumvent the right against selfincrimination; it may pave the way for fishing
expeditions by government authorities and evade the
right against unreasonable searches and seizures. The

possibilities of abuse and misuse of the PRN, biometrics

and computer technology are accentuated when we
consider that the individual lacks control over what can be
read or placed on his ID, much less verify the correctness
of the data encoded. They threaten the very abuses that
the Bill of Rights seeks to prevent.

The ability of a sophisticated data center to

generate a comprehensive cradle-to-grave dossier on an
individual and transmit it over a national network is one of
the most graphic threats of the computer revolution. The
computer is capable of producing a comprehensive dossier
on individuals out of information given at different times
and for varied purposes. x x x. Retrieval of stored data is
simple. When information of a privileged character finds
its way into the computer, it can be extracted together
with other data on the subject. Once extracted, the
information is putty in the hands of any person. The end
of privacy begins.
[T]he Court will not be true to its role as the
ultimate guardian of the peoples liberty if it would not
immediately smother the sparks that endanger their rights
but would rather wait for the fire that could consume
them.

[A]nd we now hold that when the integrity of a

fundamental right is at stake, this Court will give the
challenged law, administrative order, rule or regulation a
stricter scrutiny. It will not do for the authorities to invoke
the presumption of regularity in the performance of
official duties. Nor is it enough for the authorities to
prove that their act is not irrational for a basic right can
be diminished, if not defeated, even when the
government does not act irrationally.
They must
satisfactorily show the presence of compelling state

interest and that the law, rule, or regulation is narrowly

drawn to preclude abuses. This approach is demanded by

the 1987 Constitution whose entire matrix is designed to

protect human rights and to prevent authoritarianism. In
case of doubt, the least we can do is to lean towards the
stance that will not put in danger the rights protected by
the Constitution.

The right to privacy is one of the most threatened

rights of man living in a mass society. The threats
emanate from various sources governments, journalists,
employers, social scientists, etc. In the case at bar, the
threat comes from the executive branch of government
which by issuing A.O. No. 308 pressures the people to
surrender their privacy by giving information about
themselves on the pretext that it will facilitate delivery of
basic services. Given the record-keeping power of the

computer, only the indifferent will fail to perceive the

danger that A.O. No. 308 gives the government the power
to compile a devastating dossier against unsuspecting
citizens. x x x [W]e close with the statement that the

right to privacy was not engraved in our Constitution for

flattery. (Ople v. Torres, G.R. No. 127685, July 23,

1998 [Puno])

195.
Should in camera inspection of bank accounts be
allowed?
If in the affirmative, under what
circumstances should it be allowed?
Held: The issue is whether petitioner may be
cited for indirect contempt for her failure to produce the
documents requested by the Ombudsman. And whether
the order of the Ombudsman to have an in camera
inspection of the questioned account is allowed as an
exception to the law on secrecy of bank deposits (R.A. No.
1405).
An examination of the secrecy of bank deposits
law (R.A. No. 1405) would reveal the following
exceptions:
1) Where the depositor consents in writing;
2) Impeachment cases;
3) By court order in bribery or dereliction of duty
cases against public officials;
4) Deposit is subject of litigation;
5) Sec. 8, R.A. No. 3019, in cases of unexplained
wealth as held in the case of PNB v. Gancayco

(122 Phil. 503, 508 [1965]).

The order of the Ombudsman to produce for in

camera inspection the subject accounts with the Union
Bank of the Philippines, Julia Vargas Branch, is based on a
pending investigation at the Office of the Ombudsman
against Amado Lagdameo, et. al. for violation of R.A. No.
3019, Sec. 3 (e) and (g) relative to the Joint Venture
Agreement between the Public Estates Authority and
AMARI.

We rule that before an in camera inspection may

be allowed, there must be a pending case before a court
of competent jurisdiction. Further, the account must be
clearly identified, the inspection limited to the subject
matter of the pending case before the court of competent
jurisdiction. The bank personnel and the account holder
must be notified to be present during the inspection, and
such inspection may cover only the account identified in
the pending case.
In Union Bank of the Philippines v. Court of
Appeals, we held that Section 2 of the Law on Secrecy of
88

Bank Deposits, as amended, declares bank deposits to be

absolutely confidential except:
1) In an examination made in the course of a
special or general examination of a bank that
is specifically authorized by the Monetary
Board after being satisfied that there is
reasonable ground to believe that a bank
fraud or serious irregularity has been or is
being committed and that it is necessary to
look into the deposit to establish such fraud
or irregularity,
2) In an examination made by an independent
auditor hired by the bank to conduct its
regular audit provided that the examination is
for audit purposes only and the results
thereof shall be for the exclusive use of the
bank,
3) Upon written permission of the depositor,
4) In cases of impeachment,
5) Upon order of a competent court in cases of
bribery or dereliction of duty of public
officials, or
6) In cases where the money deposited or
invested is the subject matter of the
litigation.
In the case at bar, there is yet no pending
litigation before any court of competent authority. What
is existing is an investigation by the Office of the
Ombudsman.
In short, what the Office of the
Ombudsman would wish to do is to fish for additional
evidence to formally charge Amado Lagdameo, et. al.,
with the Sandiganbayan. Clearly, there was no pending
case in court which would warrant the opening of the
bank account for inspection. (Lourdes T. Marquez v.

Hon. Aniano A. Desierto, G.R. No. 135882, June 27,

2001, En Banc [Pardo])
Freedom of Expression

196.
Distinguish content-based restrictions on free
speech from content-neutral restrictions, and give
example of each.
Held: Content-based restrictions are imposed
because of the content of the speech and are, therefore,
subject to the clear-and-present danger test.
For
example, a rule such as that involved in Sanidad v.
Comelec, prohibiting columnists, commentators, and
announcers from campaigning either for or against an
issue in a plebiscite must have compelling reason to
support it, or it will not pass muster under strict scrutiny.
These restrictions are censorial and therefore they bear a
heavy presumption of constitutional invalidity. In addition,
they will be tested for possible overbreadth and
vagueness.

Content-neutral restrictions, on the other hand,

like Sec. 11(b) of R.A. No. 6646, which prohibits the sale
or donation of print space and air time to political
candidates during the campaign period, are not concerned
with the content of the speech. These regulations need
only a substantial governmental interest to support them.
A deferential standard of review will suffice to test their
validity.
The clear-and-present danger rule is
inappropriate as a test for determining the constitutional
validity of laws, like Sec. 11(b) of R.A. No. 6646, which
are not concerned with the content of political ads but
only with their incidents. To apply the clear-and-present

danger test to such regulatory measures would be like

using a sledgehammer to drive a nail when a regular
hammer is all that is needed.
The test for this difference in the level of
justification for the restriction of speech is that contentbased restrictions distort public debate, have improper
motivation, and are usually imposed because of fear of
how people will react to a particular speech. No such
reasons underlie content-neutral regulations, like
regulation of time, place and manner of holding public
assemblies under B.P. Blg. 880, the Public Assembly Act of
1985. (Osmena v. COMELEC, 288 SCRA 447, March

31, 1998 [Mendoza])

197.
What is the most influential test for distinguishing
content-based from content-neutral regulations?
Held: The United States Supreme Court x x x
held in United States v. O Brien:
[A] a governmental regulation is sufficiently
justified (1) if it is within the constitutional power
of the government; (2) if it furthers an important
or substantial governmental interest; (3) if the
governmental interest is unrelated to the
suppression of free expression; and (4) if the
incidental restriction on alleged First Amendment
freedoms (of speech, expression and press) is no
greater than is essential to the furtherance of that
intesrst (391 U.S. 367, 20 L. Ed. 2df 692, 680

[1968] [bracketed numbers added])

This is so far the most influential test for

distinguishing
content-based
from
content-neutral
regulations and is said to have become canonical in the
review of such laws. (G. Gunther & K. Sullivan,
Constitutional Law 1217 [13th ed. 1997]). It is noteworthy
that the O Brien test has been applied by this Court in at
least two cases (Adiong v. Comelec, 207 SCRA 712

[1992]; Osmena v. Comelec, supra.).

Under this test, even if a law furthers an

important or substantial governmental interest, it should
be invalidated if such governmental interest is not
unrelated to the suppression of free expression.
Moreover, even if the purpose is unrelated to the
suppression of free speech, the law should nevertheless
be invalidated if the restriction on freedom of expression
is greater than is necessary to achieve the governmental
purpose in question. (Social Weather Stations, Inc. v.

Comelec, G.R. No. 147571, May 5, 2001, En Banc

[Mendoza])

198.
Does the conduct of exit poll by ABS CBN present
a clear and present danger of destroying the
credibility and integrity of the electoral process as it
has the tendency to sow confusion considering the
randomness of selecting interviewees, which further
makes the exit poll highly unreliable, to justify the
promulgation of a Comelec resolution prohibiting the
same?
Held: Such arguments are purely speculative and
clearly untenable. First, by the very nature of a survey,
the interviewees or participants are selected at random,
so that the results will as much as possible be
representative or reflective of the general sentiment or
view of the community or group polled. Second, the
survey result is not meant to replace or be at par with the
official Comelec count. It consists merely of the opinion
89

of the polling group as to who the electorate in general

has probably voted for, based on the limited data
gathered from polled individuals. Finally, not at stake are
the credibility and the integrity of the elections, which are
exercises that are separate and independent from the exit
polls. The holding and the reporting of the results of exit
polls cannot undermine those of the elections, since the
former is only part of the latter. If at all, the outcome of
one can only be indicative of the other.
The COMELECs concern with the possible
noncommunicative effect of exit polls disorder and
confusion in the voting centers does not justify a total
ban on them.
Undoubtedly, the assailed Comelec
Resolution is too broad, since its application is without
qualification as to whether the polling is disruptive or not.
There is no showing, however, that exit polls or the
means to interview voters cause chaos in voting centers.
Neither has any evidence been presented proving that the
presence of exit poll reporters near an election precinct
tends to create disorder or confuse the voters.
Moreover, the prohibition incidentally prevents the
collection of exit poll data and their use for any purpose.
The valuable information and ideas that could be derived
from them, based on the voters answers to the survey
questions will forever remain unknown and unexplored.
Unless the ban is restrained, candidates, researchers,
social scientists and the electorate in general would be
deprived of studies on the impact of current events and of
election-day and other factors on voters choices.
The absolute ban imposed by the Comelec
cannot, therefore, be justified. It does not leave open any
alternative channel of communication to gather the type
of information obtained through exit polling. On the other
hand, there are other valid and reasonable ways and
means to achieve the Comelec end of avoiding or
minimizing disorder and confusion that may be brought
about by exit surveys.
With foregoing premises, it is concluded that the
interest of the state in reducing disruption is outweighed
by the drastic abridgment of the constitutionally
guaranteed rights of the media and the electorate. Quite
the contrary, instead of disrupting elections, exit polls
properly conducted and publicized can be vital tools for
the holding of honest, orderly, peaceful and credible
elections; and for the elimination of election-fixing, fraud
and other electoral ills.
(ABS-CBN Broadcasting

Corporation v. COMELEC, G.R. No. 133486, Jan. 28,

2000, En Banc [Panganiban])

199.
Section 5.4 of R.A. No. 9006 (Fair Election Act)
which provides: Surveys affecting national candidates
shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall
not be published seven (7) days before an election.
The Social Weather Stations, Inc. (SWS), a private
non-stock, non-profit social research institution
conducting surveys in various fields; and Kamahalan
Publishing Corporation, publisher of the Manila
Standard, a newspaper of general circulation, which
features newsworthy items of information including
election surveys, challenged the constitutionality of
aforesaid provision as it constitutes a prior restraint
on the exercise of freedom of speech without any
clear and present danger to justify such restraint.
Should the challenge be sustained?

Held: For reason hereunder given, we hold that

Section 5.4 of R.A. No. 9006 constitutes an
unconstitutional abridgment of freedom of speech,
expression, and the press.
To be sure, Section 5.4 lays a prior restraint on
freedom of speech, expression, and the press by
prohibiting the publication of election survey results
affecting candidates within the prescribed periods of
fifteen (15) days immediately preceding a national
election and seven (7) days before a local election.
Because of the preferred status of the constitutional rights
of speech, expression, and the press, such a measure is
vitiated by a weighty presumption of invalidity. Indeed,
any system of prior restraints of expression comes to this
Court bearing a heavy presumption against its
constitutional validity x x x. The Government thus carries
a heavy burden of showing justification for the
enforcement of such restraint. There is thus a reversal
of the normal presumption of validity that inheres in every
legislation.
Nor may it be argued that because of Art. IX-C,
Sec. 4 of the Constitution, which gives the Comelec
supervisory power to regulate the enjoyment or utilization
of franchise for the operation of media of communication,
no presumption of invalidity attaches to a measure like
Sec. 5.4. For as we have pointed out in sustaining the
ban on media political advertisements, the grant of power
to the Comelec under Art. IX-C, Sec. 4 is limited to
ensuring equal opportunity, time, space, and the right to
reply as well as uniform and reasonable rates of charges
for the use of such media facilities for public information
campaigns and forums among candidates.
Xxx
Nor can the ban on election surveys be justified
on the ground that there are other countries x x x which
similarly impose restrictions on the publication of election
surveys. At best this survey is inconclusive. It is
noteworthy that in the United States no restriction on the
publication of election survey results exists. It cannot be
argued that this is because the United States is a mature
democracy. Neither are there laws imposing an embargo
on survey results, even for a limited period, in other
countries. x x x.
What test should then be employed to determine
the constitutional validity of Section 5.4? The United
States Supreme Court x x x held in United States v. O

Brien:

[A] government regulation is sufficiently justified

(1) if it is within the constitutional power of the
government; (2) if it furthers an important or
substantial governmental interest; (3) if the
governmental interest is unrelated to the
suppression of free expression; and (4) if the
incidental restriction on alleged First Amendment
freedoms (of speech, expression and press) is no
greater than is essential to the furtherance of that
interest (391 U.S. 367, 20 L. Ed. 2d 692, 680

[1968] [bracketed numbers added]).

This is so far the most influential test for

distinguishing
content-based
from
content-neutral
regulations and is said to have become canonical in the
review of such laws. It is noteworthy that the O Brien
test has been applied by this Court in at least two cases

(Adiong v. Comelec; Osmena v. Comelec).

90

Under this test, even if a law furthers an

important or substantial governmental interest, it should
be invalidated if such governmental interest is not
unrelated to the suppression of free expression.
Moreover, even if the purpose is unrelated to the
suppression of free speech, the law should nevertheless
be invalidated if the restriction on freedom of expression
is greater than is necessary to achieve the governmental
purpose in question.
Our inquiry should accordingly focus on these two
considerations as applied to Sec. 5.4.

First. Sec. 5.4 fails to meet criterion (3) of the O

Brien test because the causal connection of expression to
the asserted governmental interest makes such interest
not unrelated to the suppression of free expression. By
prohibiting the publication of election survey results
because of the possibility that such publication might
undermine the integrity of the election, Sec. 5.4 actually
suppresses a whole class of expression, while allowing the
expression of opinion concerning the same subject matter
by newspaper columnists, radio and TV commentators,
armchair theorists, and other opinion makers. In effect,
Sec. 5.4 shows a bias for a particular subject matter, if
not viewpoint, by preferring personal opinion to statistical
results.
The constitutional guarantee of freedom of
expression means that the government has no power to
restrict expression because of its message, its ideas, its
subject matter, or its contents. The inhibition of speech
should be upheld only if the expression falls within one of
the few unprotected categories dealt with in Chaplinsky v.
New Hampshire, thus:

There are certain well-defined and

narrowly limited classes of speech, the prevention
and punishment of which have never been
thought to raise any Constitutional problem.
These include the lewd and obscene, the profane,
the libelous, and the insulting or fighting words
those which by their very utterance inflict injury
or tend to incite an immediate breach of the
peace. [S]uch utterances are no essential part of
any exposition of ideas, and are of such slight
social value as a step to truth that any benefit
that may be derived from them is clearly
outweighed by the social interest in order and
morality.
Nor is there justification for the prior restraint
which Sec. 5.4 lays on protected speech. In Near v.
Minnesota, it was held:
[T]he protection even as to previous restraint is
not absolutely unlimited. But the limitation has
been recognized only in exceptional cases x x x.
No one would question but that a government
might prevent actual obstruction to its recruiting
service or the publication of the sailing dates of
transports or the number and location of troops.
On similar grounds, the primary requirements of
decency may be enforced against obscene
publications. The security of the community life
may be protected against incitements to acts of
violence and the overthrow by force of orderly
government x x x.
Thus, x x x the prohibition imposed by Sec. 5.4
cannot be justified on the ground that it is only for a
limited period and is only incidental. The prohibition may

be for a limited time, but the curtailment of the right of

expression is direct, absolute, and substantial.
It
constitutes a total suppression of a category of speech
and is not made less so because it is only for a period of
fifteen (15) days immediately before a national election
and seven (7) days immediately before a local election.
This sufficiently distinguishes Sec. 5.4 from R.A.
No. 6646, Sec. 11(b), which this Court found to be valid in
National Press Club v. Comelec, and Osmena v. Comelec.
For the ban imposed by R.A. No. 6646, Sec. 11(b) is not
only authorized by a specific constitutional provision (Art.
IX-C, Sec. 4), but it also provided an alternative so that,
as this Court pointed out in Osmena, there was actually
no ban but only a substitution of media advertisements by
the Comelec space, and Comelec hour.

Second. Even if the governmental interest sought

to be promoted is unrelated to the suppression of speech
and the resulting restriction of free expression is only
incidental, Sec. 5.4 nonetheless fails to meet criterion (4)
of the O Brien test, namely, that the restriction be not
greater than is necessary to further the governmental
interest.
As already stated, Sec. 5.4. aims at the
prevention of last-minute pressure on voters, the creation
of bandwagon effect, junking of weak or losing
candidates, and resort to the form of election cheating
called dagdag-bawas. Praiseworthy as these aims of
the regulation might be, they cannot be attained at the
sacrifice of the fundamental right of expression, when
such aim can be more narrowly pursued by punishing
unlawful acts, rather than speech because of
apprehension that such speech creates the danger of such
evils. Thus, under the Administrative Code of 1987 (Bk.
V, Tit. I, Subtit. C, Ch 1, Sec. 3[1]), the Comelec is given
the power:
To stop any illegal activity, or confiscate,
tear down, and stop any unlawful, libelous,
misleading or false election propaganda, after due
notice and hearing.
This is surely a less restrictive means than the
prohibition contained in Sec. 5.4. Pursuant to this power
of the Comelec, it can confiscate bogus survey results
calculated to mislead voters. Candidates can have their
own surveys conducted. No right of reply can be invoked
by others. No principle of equality is involved. It is a free
market to which each candidate brings his ideas. As for
the purpose of the law to prevent bandwagon effects, it is
doubtful whether the Government can deal with this
natural-enough tendency of some voters. Some voters
want to be identified with the winners. Some are
susceptible to the herd mentality.
Can these be
legitimately prohibited by suppressing the publication of
survey results which are a form of expression? It has
been held that [mere] legislative preferences or beliefs
respecting matters of public convenience may well
support regulation directed at other personal activities,
but be insufficient to justify such as diminishes the
exercise of rights so vital to the maintenance of
democratic institutions.
To summarize then, we hold that Sec. 5.4. is
invalid because (1) it imposes a prior restraint on the
freedom of expression, (2) it is a direct and total
suppression of a category of expression even though such
suppression is only for a limited period, and (3) the
governmental interest sought to be promoted can be
achieved by means other than the suppression of freedom
of expression. (Social Weather Stations, Inc., v.
91

COMELEC, G.R. No. 147571, May 5, 2001, En Banc

[Mendoza])
200.
The question for determination in this case is the
liability for libel of a citizen who denounces a
barangay official for misconduct in office.
The
Regional Trial Court of Manila x x x found petitioner
guilty x x x on the ground that petitioner failed to
prove the truth of the charges and that he was
motivated by vengeance in uttering the defamatory
statement.
Held:
reversed.

The decision appealed from should be

In denouncing the barangay chairman in this

case, petitioner and the other residents of the Tondo
Foreshore Area were not only acting in their self-interest
but engaging in the performance of a civic duty to see to
it that public duty is discharged faithfully and well by
those on whom such duty is incumbent. The recognition
of this right and duty of every citizen in a democracy is
inconsistent with any requirement placing on him the
burden of proving that he acted with good motives and
for justifiable ends.
For that matter, even if the defamatory statement
is false, no liability can attach if it relates to official
conduct, unless the public official concerned proves that
the statement was made with actual malice that is, with
knowledge that it was false or with reckless disregard of
whether it was false or not. This is the gist of the ruling
in the landmark case of New York Times v. Sullivan, which
this Court has cited with approval in several of its own
decisions. This is the rule of actual malice. In this case,
the prosecution failed to prove not only that the charges
made by petitioner were false but also that petitioner
made them with knowledge of their falsity or with reckless
disregard of whether they were false or not.
A rule placing on the accused the burden of
showing the truth of allegations of official misconduct
and/or good motives and justifiable ends for making such
allegations would not only be contrary to Art. 361 of the
Revised Penal Code. It would, above all, infringe on the
constitutionally guaranteed freedom of expression. Such
a rule would deter citizens from performing their duties as
members of a self-governing community. Without free
speech and assembly, discussions of our most abiding
concerns as a nation would be stifled. As Justice Brandies
has said, public discussion is a political duty and the
greatest menace to freedom is an inert people. (Whitney

v. California) (Vasquez v. Court of Appeals, 314

SCRA 460, Sept. 15, 1999, En Banc [Mendoza])
201.
Discuss the "doctrine of fair comment" as a valid
defense in an action for libel or slander.

Held: Fair commentaries on matters of public

interest are privileged and constitute a valid defense in an
action for libel or slander. The doctrine of fair comment
means that while in general every discreditable imputation
publicly made is deemed false, because every man is
presumed innocent until his guilt is judicially proved, and
every false imputation is deemed malicious, nevertheless,
when the discreditable imputation is directed against a
public person in his public capacity, it is not necessarily
actionable. In order that such discreditable imputation to
a public official may be actionable, it must either be a
false allegation of fact or a comment based on a false
supposition. If the comment is an expression of opinion,

based on established facts, then it is immaterial that the

opinion happens to be mistaken, as long as it might
reasonably be inferred from the facts. (Borjal v. CA,

301 SCRA 1, Jan. 14, 1999, 2nd Div. [Bellosillo])

202.
What is the raison detre for the New York
Times v. Sullivan (376 US 254) holding that honest
criticisms on the conduct of public officials and public
figures are insulated from libel judgments?
Held: The guarantees of freedom of speech and
press prohibit a public official or public figure from
recovering damages for a defamatory falsehood relating
to his official conduct unless he proves that the statement
was made with actual malice, i.e., with knowledge that it
was false or with reckless disregard of whether it was
false or not.
The raison detre for the New York Times doctrine
was that to require critics of official conduct to guarantee
the truth of all their factual assertions on pain of libel
judgments would lead to self-censorship, since would-be
critics would be deterred from voicing out their criticisms
even if such were believed to be true, or were in fact true,
because of doubt whether it could be proved or because
of fear of the expense of having to prove it . (Borjal v.

CA, 301 SCRA 1, Jan. 14, 1999, 2nd Div. [Bellosillo])

203.
Columnist Art Borjal of The Philippine Star wrote
in his column that petitioner (private respondent), the
Executive Director and Spokesman of the FNCLT (First
National Conference on Land Transportation), a joint
project of the government and the private sector to
raise funds to improve the state of land transportation
in the country, engaged in shady and anomalous
deals. He was sued for damages arising from libel by
petitioner (private respondent) and subsequently
found liable by the trial court and made to pay
damages. On appeal, the SC reversed applying the
doctrine of fair comment.
Held: [W]e deem private respondent a public
figure within the purview of the New York Times ruling. X
xx
The FNCLT (First National Conference on Land
Transportation) was an undertaking infused with public
interest. It was promoted as a joint project of the
government and the private sector, and organized by top
government officials and prominent businessmen. For this
reason, it attracted media mileage and drew public
attention not only to the conference itself but to the
personalities behind as well. As its Executive Director and
spokesman, private respondent consequently assumed the
status of a public figure.
But even assuming ex-gratia argumenti that
private respondent, despite the position he occupied in
the FNCLT, would not qualify as a public figure, it does
not necessarily follow that he could not validly be the
subject of a public comment even if he was not a public
official or at least a public figure, for he could be, as long
as he was involved in a public issue. If a matter is a
subject of public or general interest, it cannot suddenly
become less so merely because a private individual is
involved or because in some sense the individual did not
voluntarily choose to become involved. The publics
primary interest is in the event; the public focus is on the
conduct of the participant and the content, effect and
significance of the conduct, not the participants prior
92

anonymity or notoriety.

(Borjal v. CA, 301 SCRA 1,

Jan. 14, 1999, 2nd Div. [Bellosillo])
204.
Who is a public figure, and therefore subject to
public comment?

Canete (38 Phil. 253, 265 [1918]), this Court ruled that

publications which are privileged for reasons of public

policy are protected by the constitutional guaranty of
freedom of speech. This constitutional right cannot be
abolished by the mere failure of the legislature to give it
express recognition in the statute punishing libel. (Borjal

Held: At any rate, we have also defined public

figure in Ayers Production Pty., Ltd. v. Capulong as

v. CA, 301 SCRA 1, Jan. 14, 1999, 2nd Div.

[Bellosillo])

X x x a person who, by his accomplishments,

fame, mode of living, or by adopting a profession
or calling which gives the public a legitimate
interest in his doings, his affairs and his character,
has become a public personage. He is, in other
words, a celebrity. Obviously, to be included in
this category are those who have achieved some
degree of reputation by appearing before the
public, as in the case of an actor, a professional
baseball player, a pugilist, or any other
entertainer. The list is, however, broader than
this. It includes public officers, famous inventors
and explorers, war heroes and even ordinary
soldiers, infant prodigy, and no less a personage
than the Great Exalted Ruler of the lodge. It
includes, in short, anyone who has arrived at a
position where the public attention is focused
upon him as a person. (Borjal v. CA, 301 SCRA

208.
The Office of the Mayor of Las Pinas refused to
issue permit to petitioners to hold rally a rally in front
of the Justice Hall of Las Pinas on the ground that it
was prohibited under Supreme Court En Banc
Resolution dated July 7,1998 in A.M. No. 98-7-02-SC,
entitled, "Re: Guidelines on the Conduct of
Demonstrations, Pickets, Rallies and Other Similar
Gatherings in the Vicinity of the Supreme Court and
All Other Courts." Petitioners thus initiated the instant
proceedings. They submit that the Supreme Court
gravely abused its discretion and/or acted without or
in excess of jurisdiction in promulgating those
guidelines.

1, Jan. 14, 1999, 2nd Div. [Bellosillo])

205.

What are the types of privileged communications?

Held:
We shall first dwell on the critical
argument made by petitioners that the rules constitute an
abridgment of the people's aggregate rights of free
speech, free expression, peaceful assembly and
petitioning government for redress of grievances citing
Sec. 4, Article III of the 1987 Constitution that no law
shall be passed abridging them.

Held: A privileged communication may be either

absolutely privileged or qualifiedly privileged. Absolutely
privileged communications are those which are not
actionable even if the author acted in bad faith. An
example is found in Sec. 11, Art. VI, of the 1987
Constitution which exempts a member of Congress from
liability for any speech or debate in the Congress or in any
Committee thereof. Upon the other hand, qualifiedly
privileged
communications
containing
defamatory
imputations are not actionable unless found to have been
made without good intention or justifiable motive. To this
genre belong private communications and fair and true
report without any comments or remarks. (Borjal v.

It is true that the safeguarding of the people's

freedom of expression to the end that individuals may
speak as they think on matters vital to them and that
falsehoods may be exposed through the processes of
education and discussion, is essential to free government .
But freedom of speech and expression despite its
indispensability has its limitations. It has never been
understood as the absolute right to speak whenever,
however, and wherever one pleases, for the manner,
place, and time of public discussion can be constitutionally
controlled. [T]he better policy is not liberty untamed but
liberty regulated by law where every freedom is exercised
in accordance with law and with due regard for the rights
of others.

206.
Is the enumeration of qualifiedly privileged
communications under Article 354 of the Revised
Penal Code exclusive?

Conventional wisdom tells us that the realities of

life in a complex society preclude an absolutist
interpretation of freedom of expression where it does not
involve pure speech but speech plus physical actions like
picketing. There are other significant societal values that
must be accommodated and when they clash, they must
all be weighed with the promotion of the general welfare
of the people as the ultimate objective. In balancing
these values, this Court has accorded freedom of
expression a preferred position in light of its more
comparative importance. Hence, our rulings now musty in
years hold that only the narrowest time, place and
manner regulations that are specifically tailored to serve
an important governmental interest may justify the
application of the balancing of interests test in derogation
of the people's right of free speech and expression.
Where said regulations do not aim particularly at the evils
within the allowable areas of state control but, on the
contrary, sweep within their ambit other activities as to
operate as an overhanging threat to free discussion, or
where upon their face they are so vague, indefinite, or
inexact as to permit punishment of the fair use of the
right of free speech, such regulations are void.

CA, 301 SCRA 1, Jan. 14, 1999, 2nd Div. [Bellosillo])

Held: Indisputably, petitioner Borjals questioned

writings are not within the exceptions of Art. 354 of The
Revised Penal Code for x x x they are neither private
communications nor fair and true report without any
comments or remarks. However, this does not necessarily
mean that they are not privileged. To be sure, the
enumeration under Art. 354 is not an exclusive list of
qualifiedly
privileged
communications
since
fair
commentaries on matters of public interest are likewise
privileged. (Borjal v. CA, 301 SCRA 1, Jan. 14, 1999,

2nd Div. [Bellosillo])

207.
Discuss the origin of the rule on privileged
communication. Did it originate in the nations penal
laws, or in the Bill of Rights guaranteeing freedom of
speech and of the press?
Held: The rule on privileged communications had
its genesis not in the nations penal code but in the Bill of
Rights of the Constitution guaranteeing freedom of speech
and of the press. As early as 1918, in United States v.

93

Prescinding from this premise, the Court reiterates

that judicial independence and the fair and orderly
administration
of
justice
constitute
paramount
governmental interests that can justify the regulation of
the public's right of free speech and peaceful assembly in
the vicinity of courthouses. In the case of In Re: Emil P.
Jurado, the Court pronounced in no uncertain terms that:
x x x freedom of expression needs on
occasion to be adjusted to and accommodated
with the requirements of equally important public
interests.
One of these fundamental public
interests is the maintenance of the integrity and
orderly functioning of the administration of
justice. There is no antinomy between free
expression and the integrity of the system of
administering justice. For the protection and
maintenance of freedom of expression itself can
be secured only within the context of a
functioning and orderly system of dispensing
justice, within the context, in other words, of
viable independent institutions for delivery of
justice which are accepted by the general
community. x x x (In Re: Emil P. Jurado, 243

SCRA 299, 323-324 [1995])

It is sadly observed that judicial independence

and the orderly administration of justice have been
threatened not only by contemptuous acts inside, but also
by irascible demonstrations outside, the courthouses.
They wittingly or unwittingly, spoil the ideal of sober, nonpartisan proceedings before a cold and neutral judge.
Even in the United States, a prohibition against picketing
and demonstrating in or near courthouses, has been ruled
as valid and constitutional notwithstanding its limiting
effect on the exercise by the public of their liberties. X x x
The administration of justice must not only be fair
but must also appear to be fair and it is the duty of this
Court to eliminate everything that will diminish if not
destroy this judicial desideratum. To be sure, there will
be grievances against our justice system for there can be
no perfect system of justice but these grievances must be
ventilated through appropriate petitions, motions or other
pleadings. Such a mode is in keeping with the respect
due to the courts as vessels of justice and is necessary if
judges are to dispose their business in a fair fashion. It is
the traditional conviction of every civilized society that
courts must be insulated from every extraneous influence
in their decisions.
The facts of a case should be
determined upon evidence produced in court, and should
be uninfluenced by bias, prejudice or sympathies. (In Re:

Petition to Annul En Banc Resolution A.M. 98-7-02SC - Ricardo C. Valmonte and Union of Lawyers and
Advocates for Transparency in Government [ULAT],
G.R. No. 134621, Sept. 29, 1998)
209.
Did the Supreme Court commit an act of judicial
legislation in promulgating En Banc Resolution A.M.
98-7-02-SC, entitled, Re: Guidelines on the Conduct
of Demonstrations, Pickets, Rallies and Other Similar
Gatherings in the Vicinity of the Supreme Court and
All Other Courts?
Held: Petitioners also claim that this Court
committed an act of judicial legislation in promulgating
the assailed resolution. They charge that this Court
amended provisions of Batas Pambansa (B.P.) Blg. 880,
otherwise known as the Public Assembly Act, by
converting the sidewalks and streets within a radius of
two hundred (200) meters from every courthouse from a

public forum place into a no rally zone. Thus, they

accuse this Court of x x x violating the principle of
separation of powers.
We reject these low watts arguments. Public
places historically associated with the free exercise of
expressive activities, such as streets, sidewalks, and
parks, are considered, without more, to be public fora. In
other words, it is not any law that can imbue such places
with the public nature inherent in them. But even in such
public fora, it is settled jurisprudence that the government
may restrict speech plus activities and enforce reasonable
time, place, and manner regulations as long as the
restrictions are content-neutral, are narrowly tailored to
serve a significant governmental interest, and leave open
ample alternative channels of communication.
Contrary therefore to petitioners impression, B.P.
Blg. 880 did not establish streets and sidewalks, among
other places, as public fora. A close look at the law will
reveal that it in fact prescribes reasonable time, place,
and manner regulations. Thus, it requires a written
permit for the holding of public assemblies in public places
subject, even, to the right of the mayor to modify the
place and time of the public assembly, to impose a
rerouting of the parade or street march, to limit the
volume of loud speakers or sound system and to prescribe
other appropriate restrictions on the conduct of the public
assembly.
The existence of B.P. Blg. 880, however, does not
preclude this Court from promulgating rules regulating
conduct of demonstrations in the vicinity of courts to
assure our people of an impartial and orderly
administration of justice as mandated by the Constitution.
To insulate the judiciary from mob pressure, friendly or
otherwise, and isolate it from public hysteria, this Court
merely moved away the situs of mass actions within a
200-meter radius from every courthouse. In fine, B.P.
Blg. 880 imposes general restrictions to the time, place
and manner of conducting concerted actions. On the
other hand, the resolution of this Court regulating
demonstrations adds specific restrictions as they involve
judicial independence and the orderly administration of
justice. There is thus no discrepancy between the two
sets of regulatory measures. Simply put, B.P. Blg. 880
and the assailed resolution complement each other. We
so hold following the rule in legal hermeneutics that an
apparent conflict between a court rule and a statutory
provision should be harmonized and both should be given
effect if possible. (In Re: Petition to Annul En Banc

Resolution A.M. 98-7-02-SC - Ricardo C. Valmonte

and Union of Lawyers and Advocates for
Transparency in Government [ULAT], G.R. No.
134621, Sept. 29, 1998)
210.
Should live media coverage of court proceedings
be allowed?

Held: The propriety of granting or denying

permission to the media to broadcast, record, or
photograph court proceedings involves weighing the
constitutional guarantees of freedom of the press, the
right of the public to information and the right to public
trial, on the one hand, and on the other hand, the due
process rights of the defendant and the inherent and
constitutional power of the courts to control their
proceedings in order to permit the fair and impartial
administration of justice. Collaterally, it also raises issues
on the nature of the media, particularly television and its
94

role in society, and of the impact of new technologies on

law.
Xxx
Courts do not discriminate against radio and
television media by forbidding the
broadcasting or
televising of a trial while permitting the newspaper
reporter access to the courtroom, since a television or
news reporter has the same privilege, as the news
reporter is not permitted to bring his typewriter or printing
press into the courtroom.
In Estes v. Texas, the United States Supreme
Court held that television coverage of judicial proceedings
involves an inherent denial of due process rights of a
criminal defendant. Voting 5-4, the Court through Mr.
Justice Clark, identified four (4) areas of potential
prejudice which might arise from the impact of the
cameras on the jury, witnesses, the trial judge and the
defendant. The decision in part pertinently stated:
Experience likewise has established the
prejudicial effect of telecasting on witnesses.
Witnesses might be frightened, play to the
camera, or become nervous. They are subject to
extraordinary out-of-court influences which might
affect their testimony. Also, telecasting not only
increases the trial judge's responsibility to avoid
actual prejudice to the defendant; it may as well
affect his own performance. Judges are human
beings also and are subject to the same
psychological reactions as laymen.
For the
defendant, telecasting is a form of mental
harassment and subjects him to excessive public
exposure and distracts him from the effective
presentation of his defense.
The television camera is a powerful
weapon which intentionally or inadvertently can
destroy an accused and his case in the eyes of the
public.
Representatives of the press have no special
standing to apply for a writ of mandate to compel a court
to permit them to attend a trial, since within the
courtroom a reporter's constitutional rights are no greater
than those of any other member of the public. Massive
intrusion of representatives of the news media into the
trial itself can so alter or destroy the constitutionally
necessary judicial atmosphere and decorum that the
requirements of impartiality imposed by due process of
law are denied the defendant and a defendant in a
criminal proceeding should not be forced to run a gauntlet
of reporters and photographers each time he enters or
leaves the courtroom.
Considering the prejudice it poses to the
defendant's right to due process as well as to the fair and
orderly administration of justice, and considering further
that the freedom of the press and the right of the people
to information may be served and satisfied by less
distracting, degrading and prejudicial means, live radio
and television coverage of court proceedings shall not be
allowed. Video footages of court hearings for news
purposes shall be restricted and limited to shots of the
courtroom, the judicial officers, the parties and their
counsel taken prior to the commencement of official
proceedings. No video shots or photographs shall be
permitted during the trial proper. (Supreme Court En

Banc Resolution Re: Live TV and Radio Coverage of

the Hearing of President Corazon C. Aquino's Libel

Case, dated Oct. 22, 1991)
211.
Should the Court allow live media coverage of the
anticipated trial of the plunder and other criminal
cases filed against former President Joseph E. Estrada
before the Sandiganbayan in order to assure the
public of full transparency in the proceedings of an
unprecedented case in our history as requested by
the Kapisanan ng mga Brodkaster ng Pilipinas?
Held: The propriety of granting or denying the
instant petition involve the weighing out of the
constitutional guarantees of freedom of the press and the
right to public information, on the one hand, and the
fundamental rights of the accused, on the other hand,
along with the constitutional power of a court to control
its proceedings in ensuring a fair and impartial trial.
When these rights race against one another,
jurisprudence tells us that the right of the accused must
be preferred to win.
With the possibility of losing not only the precious
liberty but also the very life of an accused, it behooves all
to make absolutely certain that an accused receives a
verdict solely on the basis of a just and dispassionate
judgment, a verdict that would come only after the
presentation of credible evidence testified to by unbiased
witnesses unswayed by any kind of pressure, whether
open or subtle, in proceedings that are devoid of
histrionics that might detract from its basic aim to ferret
veritable facts free from improper influence, and decreed
by a judge with an unprejudiced mind, unbridled by
running emotions or passions.
Due process guarantees the accused a
presumption of innocence until the contrary is proved in a
trial that is not lifted above its individual settings nor
made an object of publics attention and where the
conclusions reached are induced not by any outside force
or influence but only by evidence and argument given in
open court, where fitting dignity and calm ambiance is
demanded.
Witnesses and judges may very well be men and
women of fortitude, able to thrive in hardy climate, with
every reason to presume firmness of mind and resolute
endurance, but it must also be conceded that television
can work profound changes in the behavior of the people
it focuses on. Even while it may be difficult to quantify
the influence, or pressure that media can bring to bear on
them directly and through the shaping of public opinion, it
is a fact, nonetheless, that, indeed, it does so in so many
ways and in varying degrees.
The conscious or
unconscious effect that such a coverage may have on the
testimony of witnesses and the decision of judges cannot
be evaluated but, it can likewise be said, it is not at all
unlikely for a vote of guilt or innocence to yield to it . It
might be farcical to build around them an impregnable
armor against the influence of the most powerful media of
public opinion.
To say that actual prejudice should first be
present would leave to near nirvana the subtle threats to
justice that a disturbance of the mind so indispensable to
the calm and deliberate dispensation of justice can create.
The effect of television may escape the ordinary means of
proof, but it is not far-fetched for it to gradually erode our
basal conception of a trial such as we know it now.
95

An accused has a right to a public trial but it is a

right that belongs to him, more than anyone else, where
his life or liberty can be held critically in balance. A public
trial aims to ensure that he is fairly dealt with and would
not be unjustly condemned and that his rights are not
compromised in secret conclaves of long ago. A public
trial is not synonymous with publicized trial; it only implies
that the court doors must be open to those who wish to
come, sit in the available seats, conduct themselves with
decorum and observe the trial process.
In the
constitutional sense, a courtroom should have enough
facilities for a reasonable number of the public to observe
the proceedings, not too small as to render the openness
negligible and not too large as to distract the trial
participants from their proper functions, who shall then be
totally free to report what they have observed during the
proceedings.
The courts recognize the constitutionally
embodied freedom of the press and the right to public
information. It also approves of medias exalted power to
provide the most accurate and comprehensive means of
conveying the proceedings to the public and in
acquainting the public with the judicial process in action;
nevertheless, within the courthouse, the overriding
consideration is still the paramount right of the accused to
due process which must never be allowed to suffer
diminution in its constitutional proportions. Justice Clark
thusly pronounced, while a maximum freedom must be
allowed the press in carrying out the important function of
informing the public in a democratic society, its exercise
must necessarily be subject to the maintenance of
absolute fairness in the judicial process.
Xxx
The Integrated Bar of the Philippines x x x
expressed its own concern on the live television and radio
coverage of the criminal trials of Mr. Estrada; to
paraphrase: Live television and radio coverage can negate
the rule on exclusion of witnesses during the hearings
intended to assure a fair trial; at stake in the criminal trial
is not only the life and liberty of the accused but the very
credibility of the Philippine criminal justice system, and
live television and radio coverage of the trial could allow
the hooting throng to arrogate unto themselves the task
of judging the guilt of the accused, such that the verdict
of the court will be acceptable only if popular; and live
television and radio coverage of the trial will not subserve
the ends of justice but will only pander to the desire for
publicity of a few grandstanding lawyers.
Xxx

Held: 1. The right to religious profession and

worship has a two-fold aspect, viz., freedom to believe
and freedom to act on one's belief. The first is absolute
as long as the belief is confined within the realm of
thought. The second is subject to regulation where the
belief is translated into external acts that affect the public
welfare. (Iglesia Ni Cristo v. CA, 259 SCRA 529, July

26, 1996 [Puno])

2. The constitutional inhibition of legislation on

the subject of religion has a double aspect. On the one
hand, it forestalls compulsion by law of the acceptance of
any creed or the practice of any form of worship.
Freedom of conscience and freedom to adhere to such
religious organization or form of worship as the individual
may choose cannot be restricted by law. On the other
hand, it safeguards the free exercise of the chosen form
of religion.
Thus, the Constitution embraces two
concepts, that is, freedom to believe and freedom to act.
The first is absolute but, in the nature of things, the
second cannot be. Conduct remains subject to regulation
for the protection of society. The freedom to act must
have appropriate definitions to preserve the enforcement
of that protection. In every case, the power to regulate
must be so exercised, in attaining a permissible end, as
not to unduly infringe on the protected freedom.
Whence, even the exercise of religion may be
regulated, at some slight inconvenience, in order that the
State may protect its citizens from injury. X x x
It does not follow, therefore, from the
constitutional guarantees of the free exercise of religion
that everything which may be so called can be tolerated .
It has been said that a law advancing a legitimate
governmental interest is not necessarily invalid as one
interfering with the free exercise of religion merely
because it also incidentally has a detrimental effect on the
adherents of one or more religion .
(Centeno v.

Villalon-Pornillos, 236 SCRA 197, Sept. 1, 1994

[Regalado])
213.
Discuss why the Gerona ruling (justifying the
expulsion from public schools of children of Jehovahs
Witnesses who refuse to salute the flag and sing the
national anthem during flag ceremony as prescribed
by the Flag Salute Law) should be abandoned.
Held: Our task here is extremely difficult, for the
30-year old decision of this court in Gerona upholding the
flag salute law and approving the expulsion of students
who refuse to obey it, is not lightly to be trifled with.
It is somewhat ironic however, that after the

Unlike other government offices, courts do not

express the popular will of the people in any sense which,
instead, are tasked to only adjudicate controversies on the
basis of what alone is submitted before them. A trial is
not a free trade of ideas. Nor is a competing market of
thoughts the known test of truth in a courtroom. (Re:

Request Radio-TV coverage of the Trial in the

Sandiganbayan of the Plunder Cases against the
former President Joseph E. Estrada, A.M. No. 01-403-SC, June 29, 2001, En Banc [Vitug])
Freedom of Religion

212.

Discuss the two aspects of freedom of religion.

Gerona ruling had received legislative cachet by its

incorporation in the Administrative Code of 1987, the

present Court believes that the time has come to
reexamine it. The idea that one may be compelled to
salute the flag, sing the national anthem, and recite the
patriotic pledge, during a flag ceremony on pain of being
dismissed from ones job or of being expelled from school,
is alien to the conscience of the present generation of
Filipinos who cut their teeth on the Bill of Rights which
guarantees their rights to free speech (The flag salute,

singing the national anthem and reciting the patriotic

pledge are all forms of utterances.) and the free exercise
of religious profession and worship.
Religious freedom is a fundamental right which is
entitled to the highest priority and the amplest protection

96

among human rights, for it involves the relationship of

man to his Creator.
Xxx
Petitioners stress x x x that while they do not take
part in the compulsory flag ceremony, they do not engage
in external acts or behavior that would offend their
countrymen who believe in expressing their love of
country through the observance of the flag ceremony.
They quietly stand at attention during the flag ceremony
to show their respect for the rights of those who choose
to participate in the solemn proceedings. Since they do
not engage in disruptive behavior, there is no warrant for
their expulsion.
The sole justification for a prior restraint
or limitation on the exercise of religious freedom

(according to the late Chief Justice Claudio

Teehankee in his dissenting opinion in German v.
Barangan, 135 SCRA 514, 517) is the existence of

a grave and present danger of a character both

grave and imminent, of a serious evil to public
safety, public morals, public health or any other
legitimate public interest, that the State has a
right (and duty) to prevent. Absent such a
threat to public safety, the expulsion of the
petitioners from the schools is not justified.
The situation that the Court directly predicted in

Gerona that:

[T]he flag ceremony will become a thing

of the past or perhaps conducted with very few
participants, and the time will come when we
would have citizens untaught and uninculcated in
and not imbued with reverence for the flag and
love of country, admiration for national heroes,
and patriotism a pathetic, even tragic situation,
and all because a small portion of the school
population imposed its will, demanded and was
granted an exemption.
has not come to pass. We are not persuaded that by
exempting the Jehovahs Witnesses from saluting the flag,
singing the national anthem and reciting the patriotic
pledge, this religious group which admittedly comprises a
small portion of the school population will shake up our
part of the globe and suddenly produce a nation
untaught and uninculcated in and unimbued with
reverence for the flag, patriotism, love of country and
admiration for national heroes.
After all, what the
petitioners seek only is exemption from the flag
ceremony, not exclusion from the public schools where
they may study the Constitution, the democratic way of
life and form of government, and learn not only the arts,
sciences, Philippine history and culture but also receive
training for a vocation or profession and be taught the
virtues of patriotism, respect for human rights,
appreciation for national heroes, the rights and duties of
citizenship, and moral and spiritual values (Sec. 3[2], Art.
XIV, 1987 Constitution) as part of the curricula. Expelling
or banning the petitioners from Philippine schools will
bring about the very situation that this Court had feared in
Gerona. Forcing a small religious group, through the iron
hand of the law, to participate in a ceremony that violates
their religious beliefs, will hardly be conducive to love of
country or respect for duly constituted authorities.
Xxx

Moreover, the expulsion of members of Jehovahs

Witnesses from the schools where they are enrolled will
violate their right as Philippine citizens, under the 1987
Constitution, to receive free education, for it is the duty of
the State to protect and promote the right of all citizens
to quality education x x x and to make such education
accessible to all (Sec. 1, Art. XIV).
In Victoriano v. Elizalde Rope Workers Union, we
upheld the exemption of members of the Iglesia Ni Cristo,
from the coverage of a closed shop agreement between
their employer and a union because it would violate the
teaching of their church not to join any labor group x x x.
Xxx
We hold that a similar exemption may be
accorded to the Jehovahs Witnesses with regard to the
observance of the flag ceremony out of respect for their
religious beliefs, however bizarre those beliefs may
seem to others.
Nevertheless, their right not to
participate in the flag ceremony does not give them a
right to disrupt such patriotic exercises. Paraphrasing the
warning cited by this Court in Non v. Dames II, while the
highest regard must be afforded their right to the free
exercise of their religion, this should not be taken to
mean that school authorities are powerless to discipline
them if they should commit breaches of the peace by
actions that offend the sensibilities, both religious and
patriotic, of other persons. If they quietly stand at
attention during the flag ceremony while their classmates
and teachers salute the flag, sing the national anthem and
recite the patriotic pledge, we do not see how such
conduct may possibly disturb the peace, or pose a grave
and present danger of a serious evil to public safety,
public morals, public health or any other legitimate public
interest that the State has a right (and duty) to prevent .

(Ebralinag v. The Division Superintendent of

Schools of Cebu, 219 SCRA 256, 269-273, March 1,
1993, En Banc [Grino-Aquino])
214.
A pre-taped TV program of the Iglesia Ni Cristo
(INC) was submitted to the MTRCB for review. The
latter classified it as rated X because it was shown
to be attacking another religion. The INC protested
by claiming that its religious freedom is per se beyond
review by the MTRCB. Should this contention be
upheld?

Held: The Iglesia Ni Cristo's postulate that its

religious freedom is per se beyond review by the MTRCB
should be rejected. Its public broadcast on TV of its
religious programs brings it out of the bosom of internal
belief. Television is a medium that reaches even the eyes
and ears of children. The exercise of religious freedom
can be regulated by the State when it will bring about the
clear and present danger of a substantive evil which the
State is duty-bound to prevent, i.e., serious detriment to
the more overriding interest of public health, public
morals, or public welfare. A laissez faire policy on the
exercise of religion can be seductive to the liberal mind
but history counsels the Court against its blind adoption as
religion is and continues to be a volatile area of concern in
our society today. For sure, we shall continue to subject
any act pinching the space for the free exercise of religion
to a heightened scrutiny but we shall not leave its rational
exercise to the irrationality of man. For when religion
divides and its exercise destroys, the State should not
stand still. (Iglesia Ni Cristo v. CA, 259 SCRA 529,

July 26, 1996 [Puno])

97

215.
Did the MTRCB act correctly when it rated X the
Iglesia Ni Cristo's pre-taped TV program simply
because it was found to be attacking another
religion?
Held:
The MTRCB may disagree with the
criticisms of other religions by the Iglesia Ni Cristo but
that gives it no excuse to interdict such criticisms,
however unclean they may be. Under our constitutional
scheme, it is not the task of the State to favor any religion
by protecting it against an attack by another religion.
Religious dogma and beliefs are often at war and to
preserve peace among their followers, especially the
fanatics, the establishment clause of freedom of religion
prohibits the State from leaning towards any religion. Vis-vis religious differences, the State enjoys no banquet of
options. Neutrality alone is its fixed and immovable
stance. In fine, the MTRCB cannot squelch the speech of
the INC simply because it attacks another religion. In a
State where there ought to be no difference between the
appearance and the reality of freedom of religion, the
remedy against bad theology is better theology. The
bedrock of freedom of religion is freedom of thought and
it is best served by encouraging the marketplace of
dueling ideas. When the luxury of time permits, the
marketplace of ideas demands that speech should be met
by more speech for it is the spark of opposite speech, the
heat of colliding ideas, that can fan the embers of truth.

(Iglesia Ni Cristo v. CA, 259 SCRA 529, July 26,

1996 [Puno])

216.
Is solicitation for the construction of a church
covered by P.D. No. 1564 and, therefore, punishable
if done without the necessary permit for solicitation
from the DSWD?
Held: First. Solicitation of contributions for the
construction of a church is not solicitation for charitable
or public welfare purpose but for a religious purpose, and
a religious purpose is not necessarily a charitable or public
welfare purpose. A fund campaign for the construction or
repair of a church is not like fund drives for needy families
or victims of calamity or for the construction of a civic
center and the like. Like solicitation of subscription to
religious magazines, it is part of the propagation of
religious faith or evangelization. Such solicitation calls
upon the virtue of faith, not of charity, save as those
solicited for money or aid may not belong to the same
religion as the solicitor. Such solicitation does not engage
the philanthropic as much as the religious fervor of the
person who is solicited for contribution.

Second. The purpose of the Decree is to protect

the public against fraud in view of the proliferation of fund
campaigns for charity and other civic projects. On the
other hand, since religious fund drives are usually
conducted among those belonging to the same religion,
the need for public protection against fraudulent
solicitations does not exist in as great a degree as does
the need for protection with respect to solicitations for
charity or civic projects as to justify state regulation.
Third.

To require a government permit before

solicitation for religious purpose may be allowed is to lay a
prior restraint on the free exercise of religion. Such
restraint, if allowed, may well justify requiring a permit
before a church can make Sunday collections or enforce
tithing. But in American Bible Society v. City of Manila, we
precisely held that an ordinance requiring payment of a
license fee before one may engage in business could not
be applied to the appellant's sale of bibles because that

would impose a condition on the exercise of a

constitutional right. It is for the same reason that
religious rallies are exempted from the requirement of
prior permit for public assemblies and other uses of public
parks and streets (B.P. Blg. 880, Sec. 3[a]). To read the
Decree, therefore, as including within its reach
solicitations for religious purposes would be to construe it
in a manner that it violates the Free Exercise of Religion
Clause of the Constitution x x x. (Concurring Opinion,

Mendoza, V.V., J., in Centeno v. Villalon-Pornillos,

236 SCRA 197, Sept. 1, 1994)
217.
What is a purely ecclesiastical affair to which the
State can not meddle?
Held:
An ecclesiastical affair is one that
concerns doctrine, creed, or form of worship of the
church, or the adoption and enforcement within a
religious association of needful laws and regulations for
the government of the membership, and the power of
excluding from such associations those deemed not
worthy of membership. Based on this definition, an
ecclesiastical affair involves the relationship between the
church and its members and relate to matters of faith,
religious doctrines, worship and governance of the
congregation. To be concrete, examples of this so-called
ecclesiastical affairs to which the State cannot meddle are
proceedings for excommunication, ordinations of religious
ministers, administration of sacraments and other
activities with attached religious significance. (Pastor

Dionisio V. Austria v. NLRC, G.R. No. 124382, Aug.

16, 1999, 1st Div. [Kapunan])

218.
Petitioner is a religious minister of the Seventh
Day Adventist (SDA). He was dismissed because of
alleged misappropriation of denominational funds,
willful breach of trust, serious misconduct, gross and
habitual neglect of duties and commission of an
offense against the person of his employers duly
authorized representative.
He filed an illegal
termination case against the SDA before the labor
arbiter. The SDA filed a motion to dismiss invoking
the doctrine of separation of Church and State.
Should the motion be granted?
Held: Where what is involved is the relationship
of the church as an employer and the minister as an
employee and has no relation whatsoever with the
practice of faith, worship or doctrines of the church, i.e.,
the minister was not excommunicated or expelled from
the membership of the congregation but was terminated
from employment, it is a purely secular affair.
Consequently, the suit may not be dismissed invoking the
doctrine of separation of church and the state. (Pastor

Dionisio V. Austria v. NLRC, G.R. No. 124382, Aug.

16, 1999, 1st Div. [Kapunan])
The Right of the People to Information on Matters
of Public Concern

219.
Discuss the scope of the right to information on
matters of public concern.
Held: In Valmonte v. Belmonte, Jr., the Court
emphasized that the information sought must be matters
of public concern, access to which may be limited by law.
Similarly, the state policy of full public disclosure extends
only to transactions involving public interest and may
also be subject to reasonable conditions prescribed by
law. As to the meanings of the terms public interest
98

and public concern, the Court, in Legaspi v. Civil Service

Commission, elucidated:
In determining whether or not a
particular information is of public concern there is
no rigid test which can be applied.
Public
concern like public interest is a term that eludes
exact definition. Both terms embrace a broad
spectrum of subjects which the public may want
to know, either because these directly affect their
lives, or simply because such matters naturally
arouse the interest of an ordinary citizen. In the
final analysis, it is for the courts to determine on a
case by case basis whether the matter at issue is
of interest or importance, as it relates to or affects
the public.
Considered a public concern in the abovementioned case was the legitimate concern of citizens to
ensure that government positions requiring civil service
eligibility are occupied only by persons who are eligibles.
So was the need to give the general public adequate
notification of various laws that regulate and affect the
actions and conduct of citizens, as held in Tanada.
Likewise did the public nature of the loanable funds of
the GSIS and the public office held by the alleged
borrowers (members of the defunct Batasang Pambansa)
qualify the information sought in Valmonte as matters of
public interest and concern. In Aquino-Sarmiento v.
Morato, the Court also held that official acts of public
officers done in pursuit of their official functions are public
in character; hence, the records pertaining to such official
acts and decisions are within the ambit of the
constitutional right of access to public records.
Under Republic Act No. 6713, public officials and
employees are mandated to provide information on their
policies and procedures in clear and understandable
language, [and] ensure openness of information, public
consultations and hearing whenever appropriate x x x,
except when otherwise provided by law or when required
by the public interest. In particular, the law mandates
free public access, at reasonable hours, to the annual
performance reports of offices and agencies of
government and government-owned or controlled
corporations; and the statements of assets, liabilities and
financial disclosures of all public officials and employees.
In general, writings coming into the hands of
public officers in connection with their official functions
must be accessible to the public, consistent with the policy
of transparency of governmental affairs. This principle is
aimed at affording the people an opportunity to determine
whether those to whom they have entrusted the affairs of
the government are honestly, faithfully and competently
performing their functions as public servants. Undeniably,
the essence of democracy lies in the free-flow of thought;
but thoughts and ideas must be well-informed so that the
public would gain a better perspective of vital issues
confronting them and, thus, be able to criticize as well as
participate in the affairs of the government in a
responsible, reasonable and effective manner. Certainly,
it is by ensuring an unfettered and uninhibited exchange
of ideas among a well-informed public that a government
remains responsive to the changes desired by the people .

(Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998,

[Panganiban])

220.
What are some of the recognized restrictions to
the right of the people to information on matters of
public concern?

Held: In Chavez v. PCGG (299 SCRA 744,

Dec. 9, 1998 [Panganiban]), the SC enumerated the
recognized restrictions to the right of the people to
information on matters of public concern, as follows:

1) National security matters and intelligence

information. This jurisdiction recognizes the
common law holding that there is a
governmental
privilege
against
public
disclosure with respect to state secrets
regarding military, diplomatic and other
national security matters.
Likewise,
information on inter-government exchanges
prior to the conclusion of treaties and
executive agreements may be subject to
reasonable safeguards for the sake of national
interest;
2) Trade or industrial secrets (pursuant to the
Intellectual Property Code [R.A. No. 8293,
approved on June 6, 1997] and other related
laws) and banking transactions (pursuant to
the Secrecy of Bank Deposits Act [R.A. No.
1405, as amended]);
3) Criminal matters, such as those relating to the
apprehension, the prosecution and the
detention of criminals, which courts may not
inquire into prior to such arrest, detention and
prosecution;
4) Other confidential information. The Ethical
Standards Act (R.A. No. 6713, enacted on
February 20, 1989) further prohibits public
officials and employees from using or
divulging
confidential
or
classified
information officially known to them by
reason of their office and not made available
to the public. (Sec. 7[c], ibid.)
Other
acknowledged limitations to information
access include diplomatic correspondence,
closed door Cabinet meetings and executive
sessions of either house of Congress, as well
as the internal deliberations of the Supreme
Court.

221.
Is the recovery of the alleged ill-gotten wealth of
the Marcoses a matter of public concern subject to
this right?
Held:
With such pronouncements of our
government x x x there is no doubt that the recovery of
the Marcoses alleged ill-gotten wealth is a matter of
public concern and imbued with public interest. We may
also add that ill-gotten wealth refers to assets and
properties purportedly acquired, directly or indirectly, by
former President Marcos, his immediate family, relatives
and close associates through or as a result of their
improper or illegal use of government funds or properties;
or their having taken undue advantage of their public
office; or their use of powers, influences or relationships,
resulting in their unjust enrichment and causing grave
damage and prejudice to the Filipino people and the
Republic of the Philippines. Clearly, the assets and
properties referred to supposedly originated from the
government itself. To all intents and purposes, therefore,
they belong to the people. As such, upon reconveyance
they will be returned to the public treasury, subject only
to the satisfaction of positive claims of certain persons as
may be adjudged by competent courts. Another declared
overriding consideration for the expeditious recovery of illgotten wealth is that it may be used for national economic
recovery.
99

We believe the foregoing disquisition settles the

question of whether petitioner has a right to respondents'
disclosure of any agreement that may be arrived at
concerning the Marcoses purported ill-gotten wealth.

(Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998

[Panganiban])
Freedom of Association

222.
Does the right of civil servants to organize include
their right to strike? Clarify.
Held: Specifically, the right of civil servants to
organize themselves was positively recognized in

Association of Court of Appeals Employees (ACAE) v.

Ferrer-Calleja. But, as in the exercise of the rights of free

expression and of assembly, there are standards for

allowable limitations such as the legitimacy of the
purposes of the association, the overriding considerations
of national security and the preservation of democratic
institutions.
As regards the right to strike, the Constitution
itself qualifies its exercise with the proviso in accordance
with law. This is a clear manifestation that the state
may, by law, regulate the use of this right, or even deny
certain sectors such right. Executive Order No. 180 which
provides guidelines for the exercise of the right of
government workers to organize, for instance, implicitly
endorsed an earlier CSC circular which enjoins under pain
of administrative sanctions, all government officers and
employees from staging strikes, demonstrations, mass
leaves, walkouts and other forms of mass action which
will result in temporary stoppage or disruption of public
service (CSC Memorandum Circular No. 6, s. 1987, dated
April 21, 1987) by stating that the Civil Service law and
rules governing concerted activities and strikes in the
government service shall be observed.
It is also settled in jurisprudence that, in general,
workers in the public sector do not enjoy the right to
strike. Alliance of Concerned Government Workers v.
Minister of Labor and Employment rationalized the
proscription thus:
The general rule in the past and up to
the present is that the terms and conditions of
employment in the Government, including any
political subdivision or instrumentality thereof are
governed by law. x x x. Since the terms and
conditions of government employment are fixed
by law, government workers cannot use the same
weapons employed by the workers in the private
sector to secure concessions from their
employers. The principle behind labor unionism in
private industry is that industrial peace cannot be
secured through compulsion by law. Relations
between private employers and their employees
rest on an essentially voluntary basis. Subject to
the minimum requirements of wage laws and
other labor and welfare legislation, the terms and
conditions of employment in the unionized private
sector are settled through the process of
collective
bargaining.
In
government
employment, however, it is the legislature and,
where properly given delegated power, the
administrative heads of government which fix the
terms and conditions of employment. And this is
effected through statutes or administrative

circulars, rules, and regulations, not through

collective bargaining agreements.
After delving into the intent of the framers of the
Constitution, the Court affirmed the above rule in Social

Security System Employees Association (SSSEA) v. Court

of Appeals and explained:

Government employees may, therefore,

through their unions or associations, either
petition the Congress for the betterment of the
terms and conditions of employment which are
within the ambit of legislation or negotiate with
the appropriate government agencies for the
improvement of those which are not fixed by law.
If there be any unresolved grievances, the dispute
may be referred to the Public Sector LaborManagement Council for appropriate action. But
employees in the civil service may not resort to
strikes, walkouts and other temporary work
stoppages, like workers in the private sector, to
pressure the Government to accede to their
demands. As now provided under Sec. 4, Rule III
of the Rules and Regulations to Govern the
Exercise of the Right of Government Employees to
Self-Organization, which took effect after the
instant dispute arose, [t]he terms and conditions
of employment in the government, including any
political subdivision or instrumentality thereof and
government-owned and controlled corporations
with original charters are governed by law and
employees therein shall not strike for the purpose
of securing changes [thereto].

(Jacinto v. Court of Appeals, 281 SCRA 657,

Nov. 14, 1997, En Banc [Panganiban])

223.
Petitioners public school teachers walked out of
their classes and engaged in mass actions during
certain dates in September 1990 protesting the
alleged unlawful withholding of their salaries and
other economic benefits. They also raised national
issues, such as the removal of US bases and the
repudiation of foreign debts, in their mass actions.
They refused to return to work despite orders to do so
and subsequently were found guilty of conduct
prejudicial to the best interests of the service for
having absented themselves without proper authority,
from their schools during regular school days, and
penalized. They denied that they engaged in strike
but claimed that they merely exercised a
constitutionally guaranteed right the right to
peaceably assemble and petition the government for
redress of grievances - and, therefore, should not
have been penalized. Should their contention be
upheld?
Held: Petitioners, who are public schoolteachers
and thus government employees, do not seek to establish
that they have a right to strike. Rather, they tenaciously
insist that their absences during certain dates in
September 1990 were a valid exercise of their
constitutional right to engage in peaceful assembly to
petition the government for a redress of grievances. They
claim that their gathering was not a strike, therefore, their
participation therein did not constitute any offense.
MPSTA v. Laguio and ACT v. Carino, in which this Court
declared that these mass actions were to all intents and
purposes a strike; they constituted a concerted and
unauthorized stoppage of, or absence from, work which it
was the teachers duty to perform, undertaken for
essentially economic reasons, should not principally
100

resolve the present case, as the underlying facts are

allegedly not identical.

Strike, as defined by law, means any temporary

stoppage of work done by the concerted action of
employees as a result of an industrial or labor dispute . A
labor dispute includes any controversy or matter
concerning terms and conditions of employment; or the
association or representation of persons in negotiating,
fixing, maintaining, changing or arranging the terms and
conditions of employment, regardless of whether the
disputants stand in the proximate relation of employers
and employees. With these premises, we now evaluate
the circumstances of the instant petition.
It cannot be denied that the mass action or
assembly staged by the petitioners resulted in the nonholding of classes in several public schools during the
corresponding period. Petitioners do not dispute that the
grievances for which they sought redress concerned the
alleged failure of public authorities - essentially, their
employers - to fully and justly implement certain laws
and measures intended to benefit them materially x x x.
And probably to clothe their action with permissible
character, they also raised national issues such as the
removal of the U.S. bases and the repudiation of foreign
debt. In Balingasan v. Court of Appeals, however, this
Court said that the fact that the conventional term strike
was not used by the participants to describe their
common course of action was insignificant, since the
substance of the situation, and not its appearance, was
deemed controlling.

Moreover, the petitioners here x x x were not

penalized for the exercise of their right to assemble
peacefully and to petition the government for a redress of
grievances. Rather, the Civil Service Commission found
them guilty of conduct prejudicial to the best interest of
the service for having absented themselves without
proper authority, from their schools during regular school
days, in order to participate in the mass protest, their
absence ineluctably resulting in the non-holding of classes
and in the deprivation of students of education, for which
they were responsible.
Had petitioners availed
themselves of their free time - recess, after classes,
weekends or holidays - to dramatize their grievances and
to dialogue with the proper authorities within the bounds
of law, no one - not the DECS, the CSC or even this Court
- could have held them liable for the valid exercise of their
constitutionally guaranteed rights.
As it was, the
temporary stoppage of classes resulting from their activity
necessarily disrupted public services, the very evil sought
to be forestalled by the prohibition against strikes by
government workers. Their act by their nature was
enjoined by the Civil Service law, rules and regulations,
for which they must, therefore, be made answerable.
(Jacinto v. CA, 281 SCRA 657, Nov. 14, 1997, En
Banc [Panganiban])
The Non-Impairment Clause

of the 1973 Constitution, which have been greatly

enhanced and expanded in the 1987 Constitution by
placing them under a separate Article (Article XIII). The
Article on Social Justice was aptly described as the heart
of the new Charter by the President of the 1986
Constitutional Commission, retired Justice Cecilia Munoz
Palma. Social justice is identified with the broad scope of
the police power of the state and requires the extensive
use of such power. x x x.
The constitutional prohibition against impairing
contractual obligations is not absolute and is not to be
read with literal exactness. It is restricted to contracts
with respect to property or some object of value and
which confer rights that may be asserted in a court of
justice; it has no application to statutes relating to public
subjects within the domain of the general legislative
powers of the State and involving the public rights and
public welfare of the entire community affected by it. It
does not prevent a proper exercise by the State of its
police power by enacting regulations reasonably necessary
to secure the health, safety, morals, comfort, or general
welfare of the community, even though contracts may
thereby be affected, for such matters cannot be placed by
contract beyond the power of the State to regulate and
control them.
Verily, the freedom to contract is not absolute; all
contracts and all rights are subject to the police power of
the State and not only may regulations which affect them
be established by the State, but all such regulations must
be subject to change from time to time, as the general
well-being of the community may require, or as the
circumstances may change, or as experience may
demonstrate the necessity. And under the Civil Code,
contracts of labor are explicitly subject to the police power
of the State because they are not ordinary contracts but
are impressed with public interest. Article 1700 thereof
expressly provides:
Art. 1700. The relations between capital
and labor are not merely contractual. They are so
impressed with public interest that labor contracts
must yield to the common good. Therefore, such
contracts are subject to the special laws on labor
unions, collective bargaining, strikes and lockouts,
closed shop, wages, working conditions, hours of
labor and similar subjects.
The challenged resolution and memorandum
circular being valid implementations of E.O. No. 797
(Creating the POEA), which was enacted under the police
power of the State, they cannot be struck down on the
ground that they violate the contract clause. To hold
otherwise is to alter long-established constitutional
doctrine and to subordinate the police power to the
contract clause.
(The Conference of Maritime

Manning Agencies, Inc. v. POEA, 243 SCRA 666,

April 21, 1995 [Davide, Jr.])

Held: 1. Nor is there merit in the claim that the

resolution and memorandum circular violate the contract
clause of the Bill of Rights.

2. Petitioners pray that the present action should

be barred, because private respondents have voluntarily
executed quitclaims and releases and received their
separation pay. Petitioners claim that the present suit is a
grave derogation of the fundamental principle that
obligations arising from a valid contract have the force of
law between the parties and must be complied with in
good faith.

The executive order creating the POEA was

enacted to further implement the social justice provisions

the

224.
Is the constitutional prohibition against impairing
contractual obligations absolute?

The Court disagrees. Jurisprudence holds that

constitutional guarantee of non-impairment of
101

contract is subject to the police power of the state and to

reasonable legislative regulations promoting health,
morals, safety and welfare. Not all quitclaims are per se
invalid or against public policy, except (1) where there is
clear proof that the waiver was wangled from an
unsuspecting or gullible person, or (2) where the terms of
settlement are unconscionable on their face. In these
cases, the law will step in to annul the questionable
transactions. Such quitclaim and release agreements are
regarded as ineffective to bar the workers from claiming
the full measure of their legal rights.
In the case at bar, the private respondents agreed
to the quitclaim and release in consideration of their
separation pay. Since they were dismissed allegedly for
business losses, they are entitled to separation pay under
Article 283 of the Labor Code. And since there was thus
no extra consideration for the private respondents to give
up their employment, such undertakings cannot be
allowed to bar the action for illegal dismissal. (Bogo-

Medellin Sugarcane Planters Association, Inc. v.

NLRC, 296 SCRA 108, 124, [Panganiban])

3. Only slightly less abstract but nonetheless

hypothetical is the contention of CREBA that the
imposition of the VAT on the sales and leases of real
estate by virtue of contracts entered prior to the
effectivity of the law would violate the constitutional
provision that No law impairing the obligation of
contracts shall be passed. It is enough to say that the
parties to a contract cannot, through the exercise of
prophetic discernment, fetter the exercise of the taxing
power of the State. For not only are existing laws read
into contracts in order to fix obligations as between
parties, but the reservation of essential attributes of
sovereign power is also read into contracts as a basic
postulate of the legal order. The policy of protecting
contracts
against
impairment
presupposes
the
maintenance of a government which retains adequate
authority to secure the peace and good order of society.
In truth, the Contract Clause has never been
thought as a limitation on the exercise of the State's
power of taxation save only where a tax exemption has
been granted for a valid consideration.
x x x.

(Tolentino v. Secretary of Finance, 235 SCRA 630,

685-686, Aug. 25, 1994, En Banc [Mendoza])
4. Since timber licenses are not contracts, the
non-impairment clause x x x cannot be invoked.

X x x, even if it is to be assumed that the same

are contracts, the instant case does not involve a law or
even an executive issuance declaring the cancellation or
modification of existing timber licenses. Hence, the nonimpairment clause cannot as yet be invoked.
Nevertheless, granting further that a law has actually
been passed mandating cancellations or modifications, the
same cannot still be stigmatized as a violation of the nonimpairment clause. This is because by its very nature and
purpose, such a law could have only been passed in the
exercise of the police power of the state for the purpose
of advancing the right of the people to a balanced and
healthful ecology, promoting their health and enhancing
their general welfare. x x x.
In short, the non-impairment clause must yield to
the police power of the state.
Finally, it is difficult to imagine x x x how the nonimpairment clause could apply with respect to the prayer

to enjoin the respondent Secretary from receiving,

accepting, processing, renewing or approving new timber
license for, save in cases of renewal, no contract would
have as yet existed in the other instances. Moreover, with
respect to renewal, the holder is not entitled to it as a
matter of right. (Oposa v. Factoran, Jr., 224 SCRA

792 [1993])

5. Anent petitioners contention that the forcible

refund of incentive benefits is an unconstitutional
impairment of a contractual obligation, suffice it to state
that [n]ot all contracts entered into by the government
will operate as a waiver of its non-suability; distinction
must be made between its sovereign and proprietary acts.
The acts involved in this case are governmental. Besides,
the Court is in agreement with the Solicitor General that
the incentive pay or benefit is in the nature of a bonus
which is not a demandable or enforceable obligation.

(Blaquera v. Alcala, 295 SCRA 366, 446, Sept. 11,

1998, En Banc [Purisima])
The In-Custodial Investigation Rights of an
Accused Person

225.
State the procedure, guidelines and duties which
the arresting, detaining, inviting, or investigating
officer or his companions must do and observe at the
time of making an arrest and again at and during the
time of the custodial interrogation.
Held: Lastly, considering the heavy penalty of
death and in order to ensure that the evidence against
an accused were obtained through lawful means, the
Court, as guardian of the rights of the people lays down
the procedure, guidelines and duties which the arresting,
detaining, inviting, or investigating officer or his
companions must do and observe at the time of making
an arrest and again at and during the time of the custodial
interrogation in accordance with the Constitution,
jurisprudence and Republic Act No. 7438 (An Act Defining

Certain Rights of Person Arrested, Detained or Under

Custodial Investigation as well as the Duties of the
Arresting, Detaining, and Investigating Officers and
Providing Penalties for Violations Thereof). It is high-time
to educate our law-enforcement agencies who neglect
either by ignorance or indifference the so-called Miranda
rights which had become insufficient and which the Court
must update in the light of new legal developments:
1)

2)
3)

4)

The person arrested, detained, invited or

under custodial investigation must be
informed in a language known to and
understood by him of the reason for the
arrest and he must be shown the warrant of
arrest, if any.
Every other warnings,
information or communication must be in a
language known to and understood by said
person;
He must be warned that he has a right to
remain silent and that any statement he
makes may be used as evidence against him;
He must be informed that he has the right to
be assisted at all times and have the
presence of an independent and competent
lawyer, preferably of his own choice;
He must be informed that if he has no lawyer
or cannot afford the services of a lawyer, one
will be provided for him; and that a lawyer
may also be engaged by any person in his
behalf, or may be appointed by the court
102

upon petition of the person arrested or one

acting on his behalf;
5) That whether or not the person arrested has
a lawyer, he must be informed that no
custodial investigation in any form shall be
conducted except in the presence of his
counsel of after a valid waiver has been
made;
6) The person arrested must be informed that,
at any time, he has the right to communicate
or confer by the most expedient means telephone, radio, letter or messenger - with
his lawyer (either retained or appointed), any
member of his immediate family, or any
medical doctor, priest or minister chosen by
him or by any one from his immediate family
or by his counsel, or be visited by/confer with
duly accredited national or international nongovernment organization. It shall be the
responsibility of the officer to ensure that this
is accomplished;
7) He must be informed that he has the right to
waive any of said rights provided it is made
voluntarily, knowingly and intelligently and
ensure that he understood the same;
8) In addition, if the person arrested waives his
right to a lawyer, he must be informed that it
must be done in writing and in the presence
of counsel, otherwise, he must be warned
that the waiver is void even if he insist on his
waiver and chooses to speak;
9) That the person arrested must be informed
that he may indicate in any manner at any
time or stage of the process that he does not
wish to be questioned with warning that once
he makes such indication, the police may not
interrogate him if the same had not yet
commenced, or the interrogation must cease
if it has already begun;
10) The person arrested must be informed that
his initial waiver of his right to remain silent,
the right to counsel or any of his rights does
not bar him from invoking it at any time
during the process, regardless of whether he
may have answered some questions or
volunteered some statements;
11) He must also be informed that any statement
or evidence, as the case may be, obtained in
violation of any of the foregoing, whether
inculpatory or exculpatory, in whole or in
part, shall be admissible in evidence.

(People v. Mahinay, 302 SCRA 455, Feb. 1, 1999,

En Banc [Per Curiam])
226.
Explain the kind of information that is required to
be given by law enforcement officers to suspect
during custodial investigation.

Held: [I]t is settled that ones right to be

informed of the right to remain silent and to counsel
contemplates the transmission of meaningful information
rather just the ceremonial and perfunctory recitation of an
abstract constitutional principle. It is not enough for the
interrogator to merely repeat to the person under
investigation the provisions of Section 12, Article III of the
1987 Constitution; the former must also explain the
effects of such provision in practical terms e.g., what
the person under investigation may or may not do and
in a language the subject fairly understands. The right to
be informed carries with it a correlative obligation on the
part of the police investigator to explain, and

contemplates effective communication which results in the

subjects understanding of what is conveyed. Since it is
comprehension that is sought to be attained, the degree
of explanation required will necessarily vary and depend
on the education, intelligence, and other relevant personal
circumstances of the person undergoing investigation. In
further ensuring the right to counsel, it is not enough that
the subject is informed of such right; he should also be
asked if he wants to avail of the same and should be told
that he could ask for counsel if he so desired or that one
could be provided him at his request. If he decides not to
retain a counsel of his choice or avail of one to be
provided for him and, therefore, chooses to waive his
right to counsel, such waiver, to be valid and effective,
must still be made with the assistance of counsel, who,
under prevailing jurisprudence, must be a lawyer.

(People v. Canoy, 328 SCRA 385, March 17, 2000,

1st Div. [Davide, CJ])
227.
What is the meaning of competent counsel
under Section 12 of the Bill of Rights?
Held: The meaning of competent counsel was
explained in People v. Deniega as follows:

x x x [T]he lawyer called to be present

during such investigation should be as far as
reasonably possible, the choice of the individual
undergoing questioning. If the lawyer were one
furnished in the accuseds behalf, it is important
that he should be competent and independent,
i.e., that he is willing to fully safeguard the
constitutional rights of the accused, as
distinguished from one who would merely be
giving a routine, peremptory and meaningless
recital of the individuals rights. In People v.
Basay (219 SCRA 404, 418), this Court stressed
that an accuseds right to be informed of the right
to remain silent and to counsel contemplates the
transmission of meaningful information rather
than just the ceremonial and perfunctory
recitation of an abstract constitutional principle.
Ideally therefore, a lawyer engaged for
an individual facing custodial investigation (if the
latter could not afford one) should be engaged by
the accused (himself), or by the latters relative or
person authorized by him to engage an attorney
or by the court, upon proper petition of the
accused or person authorized by the accused to
file such petition.
Lawyers engaged by the
police, whatever testimonials are given as proof of
their probity and supposed independence, are
generally suspect, as in many areas, the
relationship
between
lawyers
and
law
enforcement authorities can be symbiotic.
x x x The competent or independent
lawyer so engaged should be present from the
beginning to end, i.e., at all stages of the
interview, counseling or advising caution
reasonably at every turn of the investigation, and
stopping the interrogation once in a while either
to give advice to the accused that he may either
continue, choose to remain silent or terminate the
interview.

(People v. Espiritu, 302 SCRA 533, Feb. 2, 1999,

3rd Div. [Panganiban])

103

228.
Can a PAO lawyer be considered an independent
counsel within the contemplation of Section 12, Article
III, 1987 Constitution?
Held:
In People v. Oracoy and People v.
Bandula, the SC has held that a PAO lawyer can be
considered an independent counsel within the
contemplation of the Constitution considering that he is
not a special counsel, public or private prosecutor, counsel
of the police, or a municipal attorney whose interest is
admittedly adverse to that of the accused-appellant.
Thus, the assistance of a PAO lawyer satisfies the
constitutional requirement of a competent and
independent counsel for the accused. (People v. Bacor,

permission before interviewing him. The Supreme Court

further ruled that appellants verbal confessions to the
newsmen are not covered by Section 12(1) and (3) of
Article III of the Constitution and, therefore, admissible in
evidence.

231.
Discuss why lower courts should act with extreme
caution in admitting in evidence accuseds videotaped
media confessions.

229.
Is the confession of an accused given
spontaneously, freely and voluntarily to the Mayor
admissible in evidence, considering that the Mayor
has operational supervision and control over the
local police and may arguably be deemed a law
enforcement officer?

Held: Apropos the court a quos admission of

accused-appellants videotaped confession, we find such
admission proper. The interview was recorded on video
and it showed accused-appellant unburdening his guilt
willingly, openly and publicly in the presence of newsmen.
Such confession does not form part of custodial
investigation as it was not given to police officers but to
media men in an attempt to elicit sympathy and
forgiveness from the public. Besides, if he had indeed
been forced into confessing, he could have easily sought
succor from the newsmen who, in all likelihood, would
have been sympathetic with him. X x x

Held: While it is true that a municipal mayor has

operational supervision and control over the local police
and may arguably be deemed a law enforcement officer
for purposes of applying Section 12(1) and (3) of Article
III of the Constitution, however, appellants confession to
the mayor was not made in response to any interrogation
by the latter. In fact, the mayor did not question the
appellant at all. No police authority ordered appellant to
talk to the mayor.
It was appellant himself who
spontaneously, freely and voluntarily sought the mayor for
a private meeting. The mayor did not know that appellant
was going to confess his guilt to him. When appellant

X x x However, because of the inherent danger in

the use of television as a medium for admitting ones
guilt, and the recurrence of this phenomenon in several
cases, it is prudent that trial courts are reminded that
extreme caution must be taken in further admitting similar
confessions. For in all probability, the police, with the
connivance of unscrupulous media practitioners, may
attempt to legitimize coerced extrajudicial confessions and
place them beyond the exclusionary rule by having an
accused admit an offense on television. Such a situation
would be detrimental to the guaranteed rights of the
accused and thus imperil our criminal justice system.

306 SCRA 522, April 30, 1999, 2nd Div. [Mendoza])

talked with the mayor as a confidant and not as a law

enforcement officer, his uncounselled confession to him
did not violate his constitutional rights. Thus, it has been

held that the constitutional procedures on custodial

investigation do not apply to a spontaneous statement,
not elicited through questioning by the authorities, but
given in an ordinary manner whereby appellant orally
admitted having committed the crime.
What the
Constitution bars is the compulsory disclosure of
incriminating facts or confessions.
The rights under
Section 12 are guaranteed to preclude the slightest use of
coercion by the State as would lead the accused to admit
something false, not to prevent him from freely and
voluntarily telling the truth. (People v. Andan, 269

SCRA 95, March 3, 1997)

230.
Are confessions made in response to questions by
news reporters admissible in evidence?
Answer: Yes. Confessions made in response to
questions by news reporters, not by the police or any
other investigating officer, are admissible. In People v.
Vizcarra, where the accused, under custody, gave
spontaneous answers to a televised interview by several
press reporters in the office of the chief of the CIS, it was
held that statements spontaneously made by a suspect to
news reporters on a televised interview are deemed
voluntary and are admissible in evidence. In People v.
Andan, 269 SCRA 95, March 3, 1997, it was held that
appellants confessions to the news reporters were given
free from any undue influence from the police authorities.
The news reporters acted as news reporters when they
interviewed appellant. They were not acting under the
direction and control of the police. They did not force
appellant to grant them an interview and reenact the
commission of the crime.
In fact, they asked his

We do not suggest that videotaped confessions

given before media men by an accused with the
knowledge of and in the presence of police officers are
impermissible. Indeed, the line between proper and
invalid police techniques and conduct is a difficult one to
draw, particularly in cases such as this where it is
essential to make sharp judgments in determining
whether a confession was given under coercive physical or
psychological atmosphere.
A word of caution then to lower courts: we should
never presume that all media confessions described as
voluntary have been freely given. This type of confession
always remains suspect and therefore should be
thoroughly examined and scrutinized.
Detection of
coerced confessions is admittedly a difficult and arduous
task for the courts to make. It requires persistence and
determination in separating polluted confessions from
untainted ones. We have a sworn duty to be vigilant and
protective of the rights guaranteed by the Constitution.

(People v. Endino, 353 SCRA 307, Feb. 20, 2001,

2nd Div. [Bellosillo])

232.
Discuss the two kinds of involuntary or coerced
confessions under Section 12, Article III of the 1987
Constitution.
Illustrate how the Court should
appreciate said involuntary or coerced confessions.
Held: There are two kinds of involuntary or
coerced confessions treated in this constitutional
provision: (1) those which are the product of third degree
methods such as torture, force, violence, threat,
intimidation, which are dealt with in paragraph 2 of
Section 12, and (2) those which are given without the
104

benefit of Miranda warnings, which are the subject of

paragraph 1 of the same Section 12.
Accused-appellant claims that his confession was
obtained by force and threat. Aside from this bare
assertion, he has shown no proof of the use of force and
violence on him. He did not seek medical treatment nor
even a physical examination. His allegation that the fact
that he was made to sign the confession five times is
proof that he refused to sign it.
Xxx
We discern no sign that the confession was
involuntarily executed from the fact that it was signed by
accused-appellant five times.
Xxx
Extrajudicial confessions are presumed voluntary,
and, in the absence of conclusive evidence showing the
declarants consent in executing the same has been
vitiated, such confession will be sustained.
Moreover, the confession contains details that
only the perpetrator of the crime could have given. x x x.
It has been held that voluntariness of a confession may be
inferred from its being replete with details which could
possibly be supplied only by the accused, reflecting
spontaneity and coherence which cannot be said of a
mind on which violence and torture have been applied .
When the details narrated in an extrajudicial confession
are such that they could not have been concocted by one
who did not take part in the acts narrated, where the
claim of maltreatment in the extraction of the confession
is unsubstantiated and where abundant evidence exists
showing that the statement was voluntarily executed, the
confession is admissible against the declarant. There is
greater reason for finding a confession to be voluntary
where it is corroborated by evidence aliunde which
dovetails with the essential facts contained in such
confession.
But what renders the confession of accusedappellant inadmissible is the fact that accused-appellant
was not given the Miranda warnings effectively. Under
the Constitution, an uncounseled statement, such as it is
called in the United States from which Article III, Section
12(1) was derived, is presumed to be psychologically
coerced. Swept into an unfamiliar environment and
surrounded by intimidating figures typical of the
atmosphere of police interrogation, the suspect really
needs the guiding hand of counsel.
Now, under the first paragraph of this provision, it
is required that the suspect in custodial interrogation must
be given the following warnings: (1) he must be informed
of his right to remain silent; (2) he must be warned that
anything he says can and will be used against him; and
(3) he must be told that he has a right to counsel, and
that if he is indigent, a lawyer will be appointed to
represent him.
Xxx
There was thus only a perfunctory reading of the
Miranda rights to accused-appellant without any effort to
find out from him whether he wanted to have counsel
and, if so, whether he had his own counsel or he wanted
the police to appoint one for him. This kind of giving of
warnings, in several decisions of this Court, has been

found to be merely ceremonial and inadequate to transmit

meaningful information to the suspect. Especially in this
case, care should have been scrupulously observed by the
police investigator that accused-appellant was specifically
asked these questions considering that he only finished
the fourth grade of the elementary school. x x x
Moreover, Article III, Section 12(1) requires that
counsel assisting suspects in custodial interrogations be
competent and independent. Here, accused-appellant
was assisted by Atty. De los Reyes, who, though
presumably competent, cannot be considered an
independent counsel as contemplated by the law for the
reason that he was station commander of the WPD at the
time he assisted accused-appellant. x x x.
This is error. As observed in People v. Bandula,
the independent counsel required by Article III, Section
12(1) cannot be special counsel, public or private
prosecutor, municipal attorney, or counsel of the police
whose interest is admittedly adverse to the accused. In
this case, Atty. De los Reyes, as PC Captain and Station
Commander of the WPD, was part of the police force who
could not be expected to have effectively and scrupulously
assisted accused-appellant in the investigation. To allow
such a happenstance would render illusory the protection
given to the suspect during custodial investigation.

(People v. Obrero, 332 SCRA 190, 220 208, May

17, 2000, 2nd Div. [Mendoza])

233.
What are the requirements for an extra-judicial
confession of an accused to be admissible in
evidence?
Held: 1. In jurisprudence, no confession can be
admitted in evidence unless it is given:
1) Freely and voluntarily, without compulsion,
inducement or trickery;
2) Knowingly
based
on
an
effective
communication to the individual under
custodial investigation of his constitutional
rights; and
3) Intelligently with full appreciation of its
importance and comprehension of its
consequences.
Once admitted, the confession must inspire
credibility or be one which the normal experience of
mankind can accept as being within the realm of
probability.
A confession meeting all the foregoing requisites
constitutes evidence of a high order since it is supported
by the strong presumption that no person of normal mind
will knowingly, freely and deliberately confess that he is
the perpetrator of a crime unless prompted by truth and
conscience. When all these requirements are met and the
confession is admitted in evidence, the burden of proof
that it was obtained by undue pressure, threat or
intimidation rests upon the accused. (People v. Fabro,

277 SCRA 19, Aug. 11, 1997 [Panganiban])

2. Numerous decisions of this Court rule that for

an extrajudicial confession to be admissible, it must be: 1)
voluntary; 2) made with the assistance of competent and
independent counsel; 3) express; and 4) in writing.
The mantle of protection afforded by the abovequoted constitutional provision covers the period from the
time a person is taken into custody for the investigation of
105

his possible participation in the commission of a crime or

from the time he is singled out as a suspect in the
commission of the offense although not yet in custody.
The exclusionary rule is premised on the presumption that
the defendant is thrust into an unfamiliar atmosphere
running through menacing police interrogation procedures
where the potentiality for compulsion, physical or
psychological is forcefully apparent.
However, the rule is not intended as a deterrent
to the accused from confessing guilt if he voluntarily and
intelligently so desires but to protect the accused from
admitting what he is coerced to admit although untrue .

(People v. Base, 329 SCRA 158, 169-171, March 30,

2000, 1st Div. [Ynares-Santiago])
234.
Is the choice of a lawyer by a person under
custodial investigation who cannot afford the services
of a counsel exclusive as to preclude other equally
competent and independent attorneys from handling
his defense?
Held: It must be remembered in this regard that
while the right to counsel is immutable, the option to
secure the services of counsel de parte is not absolute.
Indeed
The phrase competent and independent
and preferably of his own choice were explicit
details which were added upon the persistence of
human rights lawyers in the 1986 Constitutional
Commission who pointed out cases where, during
the martial law period, the lawyers made available
to the detainee would be one appointed by the
military and therefore beholden to the military.

(Citing I Record of the Constitutional Commission

731-734; I Bernas, The Constitution of the
Republic of the Philippines, 1987 1st ed., p. 347)
Xxx

xxx

xxx

Withal, the word preferably under

Section 12(1), Article 3 of the 1987 Constitution
does not convey the message that the choice of a
lawyer by a person under investigation is
exclusive as to preclude other equally competent
and independent attorneys from handling his
defense. If the rule were otherwise, then, the
tempo of a custodial investigation will be solely in
the hands of the accused who can impede, nay,
obstruct the progress of the interrogation by
simply selecting a lawyer who for one reason or
another, is not available to protect his interest.
This absurd scenario could not have been
contemplated by the framers of the charter.
While the initial choice in cases where a person
under custodial investigation cannot afford the services of
a lawyer is naturally lodged in the police investigators, the
accused really has the final choice as he may reject the
counsel chosen for him and ask for another one. A lawyer
provided by the investigators is deemed engaged by the
accused where he never raised any objection against the
formers appointment during the course of the
investigation and the accused thereafter subscribes to the
veracity of his statement before the swearing officer.
Verily, to be an effective counsel [a] lawyer need
not challenge all the questions being propounded to his
client. The presence of a lawyer is not intended to stop
an accused from saying anything which might incriminate

him but, rather, it was adopted in our Constitution to

preclude the slightest coercion as would lead the accused
to admit something false. The counsel, however, should

never prevent an accused from freely and voluntarily

telling the truth. (People v. Base, 329 SCRA 158,
169-171, March 30, 2000, 1st Div. [YnaresSantiago])
235.
Should courts be allowed to distinguish between
preliminary questioning and custodial investigation
proper when applying the exclusionary rule?
Held:
The exclusionary rule sprang from a
recognition that police interrogatory procedures lay fertile
grounds for coercion, physical and psychological, of the
suspect to admit responsibility for the crime under
investigation. It was not intended as a deterrent to the
accused from confessing guilt, if he voluntarily and
intelligently so desires but to protect the accused from
admitting what he is coerced to admit although untrue .
Law enforcement agencies are required to effectively
communicate the rights of a person under investigation
and to insure that it is fully understood. Any measure
short of this requirement is considered a denial of such
right. Courts are not allowed to distinguish between
preliminary questioning and custodial investigation proper
when applying the exclusionary rule. Any information or
admission given by a person while in custody which may
appear harmless or innocuous at the time without the
competent assistance of an independent counsel should
be struck down as inadmissible. It has been held,
however, that an admission made to news reporters or to
a confidant of the accused is not covered by the
exclusionary rule.
The admission allegedly made by the appellant is
not in the form of a written extra-judicial confession; the
admission was allegedly made to the arresting officer
during an informal talk at the police station after his
arrest as a prime suspect in the rape and killing of x x x.
The arresting policeman testified that the appellant
admitted that he was with the victim on the evening of
January 12, 1994, the probable time of the commission of
the crime and that he carried her on his shoulder but that
he was too drunk to remember what subsequently
happened. The arresting policeman admitted that he did
not inform the appellant of his constitutional rights to
remain silent and to counsel. We note that the alleged
admission is incriminating because it places the accused in
the company of the victim at the time the crime was
probably committed.
The exclusionary rule applies.
The accused was under arrest for the rape and
killing of x x x and any statement allegedly made by him
pertaining to his possible complicity in the crime without
prior notification of his constitutional rights is inadmissible
in evidence.
The policemans apparent attempt to
circumvent the rule by insisting that the admission was
made during an informal talk prior to custodial
investigation prior is not tenable. The appellant was not
invited to the police station as part of a general inquiry for
any possible lead to the perpetrators of the crime under
investigation. At the time the alleged admission was
made the appellant was in custody and had been arrested
as the prime suspect in the rape and killing of x x x. The
exclusionary rule presumes that the alleged admission
was coerced, the very evil the rule stands to avoid.
Supportive of such presumption is the absence of a
written extra-judicial confession to that effect and the
106

appellants denial in court of the alleged oral admission.

The alleged admission should be struck down as
inadmissible. (People v. Bravo, 318 SCRA 812, Nov.

22, 1999, En Banc [Gonzaga-Reyes])

236.
Explain
the
procedure
for
out-of-court
identification of suspects and the test to determine
the admissibility of such identification.
Held: 1. In People v. Teehankee, Jr., the Court
x x x explained the procedure for out-of-court
identification and the test to determine the admissibility of
such identification.
It listed the following ways of
identifying the suspects during custodial investigation:
show-up, mug shots and line-ups. The Court there ruled:
x x x.
Out-of-court identification is
conducted by the police in various ways. It is
done thru show-ups where the suspect alone is
brought face to face with the witness for
identification. It is done thru mug shots where
photographs are shown to the witness to identify
the suspect. It is also done thru line ups where a
witness identifies the suspect from a group of
persons lined up for the purpose.
Since
corruption
of
out-of-court
identification
contaminates
the
integrity
of
in court
identification during the trial of the case, courts
have fashioned out rules to assure its fairness and
its compliance with the requirements of
constitutional due process.
In resolving the
admissibility of and relying on out-of- court
identification of suspects, courts have adopted the
totality of circumstances test where they consider
the following factors, viz: (1) the witness
opportunity to view the criminal at the time of the
crime; (2) the witness degree of attention at that
time; (3) the accuracy of any prior description
given by the witness; (4) the level of certainty
demonstrated by the witness at the identification;
(5) the length of time between the crime and the
identification; and (6) the suggestiveness of the
identification procedure. (People v. Timon,

281 SCRA 577, Nov. 12, 1997 [Panganiban])

2. x x x. The totality test has been fashioned

precisely to assure fairness as well as compliance with
constitutional requirements of due process in regard to
out-of-court identification. These cited factors must be
considered to prevent contamination of the integrity of incourt identifications better. (People v. Gamer, 326

SCRA 660, Feb. 29, 2000, 2nd Div. [Quisumbing])

237.
Does the prohibition for custodial investigation
conducted without the assistance of counsel extend to
a person in a police line-up? Consequently, is the
identification by private complainant of accused who
was not assisted by counsel during police line-up
admissible in evidence?
Held: The prohibition x x x does not extend to a
person in a police line-up because that stage of an
investigation is not yet a part of custodial investigation . It
has been repeatedly held that custodial investigation
commences when a person is taken into custody and is
singled out as a suspect in the commission of the crime
under investigation and the police officers begin to ask
questions on the suspects participation therein and which
tend to elicit an admission. The stage of an investigation
wherein a person is asked to stand in a police line-up has
been held to be outside the mantle of protection of the

right to counsel because it involves a general inquiry into

an unsolved crime and is purely investigatory in nature. It
has also been held that an uncounseled identification at
the police line-up does not preclude the admissibility of an
in-court identification. The identification made by the
private complainant in the police line-up pointing to
Pavillare as one of his abductors is admissible in evidence
although the accused-appellant was not assisted by
counsel. x x x (People v. Pavillare, 329 SCRA 684,

694-695, April 5, 2000, En Banc [Per Curiam])

238.
Petitioner in a case x x x posits the theory that
since he had no counsel during the custodial
investigation when his urine sample was taken and
chemically examined, Exhibits L and M, x x x are
also inadmissible in evidence since his urine sample
was derived in effect from an uncounselled extrajudicial confession. Petitioner claims that the taking
of his urine sample allegedly violates Article III,
Section 2 of the Constitution x x x. Should his
contentions be upheld?
Held: We are not persuaded. The right to
counsel begins from the time a person is taken into
custody and placed under investigation for the
commission of a crime, i.e., when the investigating officer
starts to ask questions to elicit information and/or
confession or admissions from the accused. Such right is
guaranteed by the Constitution and cannot be waived
except in writing and in the presence of counsel.
However, what the Constitution prohibits is the use of
physical or moral compulsion to extort communication
from the accused, but not an inclusion of his body in
evidence, when it may be material. In fact, an accused
may validly be compelled to be photographed or
measured, or his garments or shoes removed or replaced,
or to move his body to enable the foregoing things to be
done, without running afoul of the proscription against
testimonial compulsion. The situation in the case at bar
falls within the exemption under the freedom from
testimonial compulsion since what was sought to be
examined came from the body of the accused. This was a
mechanical act the accused was made to undergo which
was not meant to unearth undisclosed facts but to
ascertain physical attributes determinable by simple
observation. In fact, the record shows that petitioner and
his co-accused were not compelled to give samples of
their urine but they in fact voluntarily gave the same
when they were requested to undergo a drug test.

(Gutang v. People, 335 SCRA 479, July 11, 2000,

2nd Div. [De Leon])
The Right to Bail

239.
In bail application where the accused is charged
with a capital offense, will it be proper for the judge
to grant bail without conducting hearing if the
prosecutor interposes no objection to such
application? Why?
Held: Jurisprudence is replete with decisions
compelling judges to conduct the required hearings in bail
applications, in which the accused stands charged with a
capital offense. The absence of objection from the
prosecution is never a basis for the grant of bail in such
cases, for the judge has no right to presume that the
prosecutor knows what he is doing on account of
familiarity with the case. Said reasoning is tantamount to
ceding to the prosecutor the duty of exercising judicial
discretion to determine whether the guilt of the accused is
107

strong. Judicial discretion is the domain of the judge

before whom the petition for provisional liberty will be
decided. The mandated duty to exercise discretion has
never been reposed upon the prosecutor.
Imposed in Baylon v. Sison was this mandatory
duty to conduct a hearing despite the prosecution's
refusal to adduce evidence in opposition to the application
to grant and fix bail. (Joselito V. Narciso v. Flor Marie

Sta. Romana-Cruz, G.R. No. 134504, March 17,

2000, 3rd Div. [Panganiban])
240.
What are the duties of the judge in cases of bail
applications where the accused is charged with capital
offense?
Held: Basco v. Rapatalo enunciated the following
duties of the trial judge in such petition for bail:
1) Notify the prosecutor of the hearing of the
application for bail or require him to submit
his recommendation;
2) Conduct a hearing of the application for bail
regardless of whether or not the prosecution
refuses to present evidence to show that the
guilt of the accused is strong for the purpose
of enabling the court to exercise its sound
discretion;
3) Decide whether the evidence of guilt of the
accused is strong based on the summary of
evidence of the prosecution;
4) If the guilt of the accused is not strong,
discharge the accused upon the approval of
the bailbond. Otherwise, petition should be
denied.
The Court added:
The above-enumerated
procedure should now leave no room for doubt as to the
duties of the trial judge in cases of bail applications. So
basic and fundamental is it to conduct a hearing in
connection with the grant of bail in the proper cases that
it would amount to judicial apostasy for any member of
the judiciary to disclaim knowledge or awareness thereof.
Additionally, the court's grant or refusal of bail
must contain a summary of the evidence for the
prosecution, on the basis of which should be formulated
the judge's own conclusion on whether such evidence is
strong enough to indicate the guilt of the accused. The
summary thereof is considered an aspect of procedural
due process for both the prosecution and the defense; its
absence will invalidate the grant or the denial of the
application for bail. (Joselito V. Narciso v. Flor Marie

Sta. Romana-Cruz, G.R. No. 134504, March 17,

2000, 3rd Div. [Panganiban])
241.
Should the accused who remained at large after
their conviction be allowed provisional liberty? Can
the bail bond that the accused previously posted be
used during the entire period of appeal?
Held: Despite an order of arrest from the trial
court and two warnings from the Court of Appeals,
petitioners had remained at large. It is axiomatic that for
one to be entitled to bail, he should be in the custody of
the law, or otherwise, deprived of liberty. The purpose of
bail is to secure ones release and it would be incongruous
to grant bail to one who is free. Petitioners Compliance
and Motion x x x came short of an unconditional
submission to respondent courts lawful order and to its
jurisdiction.

The trial court correctly denied petitioners motion

that they be allowed provisional liberty after their
conviction, under their respective bail bonds. Apart from
the fact that they were at large, Section 5, Rule 114 of the
Rules of Court, as amended by Supreme Court
Administrative Circular 12-94, provides that:
Xxx
The Court, in its discretion, may allow the accused
to continue on provisional liberty under the same bail
bond during the period to appeal subject to the consent of
the bondsman.
The bail bond that the accused previously posted
can only be used during the 15-day period to appeal (Rule
122) and not during the entire period of appeal. This is
consistent with Section 2(a) of Rule 114 which provides
that the bail shall be effective upon approval and remain
in force at all stages of the case, unless sooner cancelled,

until the promulgation of the judgment of the Regional

Trial Court, irrespective of whether the case was originally

filed in or appealed to it. This amendment, introduced by

SC Administrative Circular 12-94 is a departure from the
old rules which then provided that bail shall be effective
and remain in force at all stages of the case until its full
determination, and thus even during the period of appeal.
Moreover, under the present rule, for the accused to
continue his provisional liberty on the same bail bond
during the period to appeal, consent of the bondsman is
necessary.
From the record, it appears that the
bondsman x x x filed a motion in the trial court x x x for
the cancellation of petitioners bail bond for the latters
failure to renew the same upon its expiration. Obtaining
the consent of the bondsman was, thus, foreclosed.

(Maguddatu v. Court of Appeals, 326 SCRA 362,

Feb. 23, 2000, 1st Div. [Kapunan])
242.
Is a condition in an application for bail that
accused be first arraigned before he could be granted
bail valid?

Held:
In requiring that petitioner be first
arraigned before he could be granted bail, the trial court
apprehended that if petitioner were released on bail he
could, by being absent, prevent his early arraignment and
thereby delay his trial until the complainants got tired and
lost interest in their cases. Hence, to ensure his presence
at the arraignment, approval of petitioners bail bonds
should be deferred until he could be arraigned. After that,
even if petitioner does not appear, trial can proceed as
long as he is notified of the date of the hearing and his
failure to appear is unjustified, since under Art. III, Sec.
14(2) of the Constitution, trial in absencia is authorized.
This seems to be the theory of the trial court in its x x x
order conditioning the grant of bail to petitioner on his
arraignment.
This theory is mistaken. In the first place x x x in
cases where it is authorized, bail should be granted before
arraignment, otherwise the accused may be precluded
from filing a motion to quash. For if the information is
quashed and the case is dismissed, there would then be
no need for the arraignment of the accused. In the
second place, the trial court could ensure the presence of
petitioner at the arraignment precisely by granting bail
and ordering his presence at any stage of the
proceedings, such as arraignment. Under Rule 114, Sec.
2(b) of the Rules on Criminal Procedure, one of the
conditions of bail is that the accused shall appear before
108

the proper court whenever so required by the court or

these Rules, while under Rule 116, Sec. 1(b) the
presence of the accused at the arraignment is required.
On the other hand, to condition the grant of bail
to an accused on his arraignment would be to place him in
a position where he has to choose between (1) filing a
motion to quash and thus delay his release on bail
because until his motion to quash can be resolved, his
arraignment cannot be held, and (2) foregoing the filing
of a motion to quash so that he can be arraigned at once
and thereafter be released on bail. These scenarios
certainly undermine the accuseds constitutional right not
to be put on trial except upon valid complaint or
information sufficient to charge him with a crime and his
right to bail. (Lavides v. CA, 324 SCRA 321, Feb. 1,

2000, 2nd Div. [Mendoza])

243.
Is respondent Mark Jimenez entitled to bail during
the pendency of the Extradition Proceeding?
Held: We agree with petitioner. As suggested by
the use of the word conviction, the constitutional
provision on bail x x x, as well as Section 4 of Rule 114 of
the Rules of Court, applies only when a person has been
arrested and detained for violation of Philippine criminal
laws. It does not apply to extradition proceedings,
because extradition courts do not render judgments of
conviction or acquittal.
Moreover, the constitutional right to bail flows
from the presumption of innocence in favor of every
accused who should not be subjected to the loss of
freedom as thereafter he would be entitled to acquittal,
unless his guilt be proved beyond reasonable doubt. It
follows that the constitutional provision on bail will not
apply to a case like extradition, where the presumption of
innocence is not an issue.

tyranny, as well as the power to promulgate rules to

protect and enforce constitutional rights. Furthermore,
we believe that the right to due process is broad enough
to include the grant of basic fairness to extraditees.
Indeed, the right to due process extends to the life,
liberty or property of every person. It is dynamic and
resilient, adaptable to every situation calling for its
application.
Accordingly and to best serve the ends of justice,
we believe and so hold that, after a potential extraditee
has been arrested or placed under the custody of the law,
bail may be applied for and granted as an exception, only
upon a clear and convincing showing (1) that, once
granted bail, the applicant will not be a flight risk or a
danger to the community; and (2) that there exist special,
humanitarian and compelling circumstances including, as
a matter of reciprocity, those cited by the highest court in
the requesting state when it grants provisional liberty in
extradition cases therein.
Since this exception has no express or specific
statutory basis, and since it is derived essentially from
general principles of justice and fairness, the applicant
bears the burden of proving the above two-tiered
requirement with clarity, precision and emphatic
forcefulness.
The Court realizes that extradition is
basically an executive, not a judicial, responsibility arising
from the presidential power to conduct foreign relations.
In its barest concept, it partakes of the nature of police
assistance amongst states, which is not normally a judicial
prerogative. Hence, any intrusion by the courts into the
exercise of this power should be characterized by caution,
so that the vital international and bilateral interests of our
country will not be unreasonably impeded or
compromised. In short, while this Court is ever protective
of the sporting idea of fair play, it also recognizes the
limits of its own prerogatives and the need to fulfill
international obligations. (Government of the United

The provision in the Constitution stating that the

right to bail shall not be impaired even when the privilege
of the writ of habeas corpus is suspended does not
detract from the rule that the constitutional right to bail is
available only in criminal proceedings. It must be noted
that the suspension of the privilege of the writ of habeas
corpus finds application only to persons judicially charged
for rebellion or offenses inherent in or directly connected
with invasion. (Sec. 18, Article VII, Constitution) Hence,
the second sentence in the constitutional provision on bail
merely emphasizes the right to bail in criminal
proceedings for the aforementioned offenses. It cannot
be taken to mean that the right is available even in
extradition proceedings that are not criminal in nature.

States of America v. Hon. Guillermo Purganan, G.R.

No. 148571, Sept. 24, 2002, En Banc [Panganiban])

That the offenses for which Jimenez is sought to

be extradited are bailable in the United States is not an
argument to grant him one in the present case. To stress,
extradition proceedings are separate and distinct from the
trial for the offenses for which he is charged. He should
apply for bail before the courts trying the criminal cases
against him, not before the extradition court.

While his extradition was pending, Respondent

Jimenez was elected as a member of the House of
Representatives.
On that basis, he claims that his
detention will disenfranchise his Manila district of 600,000
residents. We are not persuaded. In People v. Jalosjos,
the Court has already debunked the disenfranchisement
argument x x x.

(Government of the United States of America v.

Hon. Guillermo Purganan, G.R. No. 148571, Sept.
24, 2002, En Banc [Panganiban])
244.
What is the exception to the No Bail Rule in
Extradition Proceedings?

Held: The rule x x x is that bail is not a matter of

right in extradition cases. However, the judiciary has the
constitutional duty to curb grave abuse of discretion and

245.
Are there special circumstances compelling
enough for the Court to grant Mark Jimenezs request
for provisional release on bail?
Held: Along this line, Jimenez contends that
there are special circumstances that are compelling
enough for the Court to grant his request for provisional
release on bail. We have carefully examined these
circumstances and shall now discuss them.
1. Alleged Disenfranchisement

It must be noted that even before private

respondent ran for and won a congressional seat in
Manila, it was already of public knowledge that the United
States was requesting his extradition.
Hence, his
constituents were or should have been prepared for the
consequences of the extradition case against their
representative, including his detention pending the final
resolution of the case. Premises considered and in line
with Jalosjos, we are constrained to rule against his claim
109

that his election to public office is by itself a compelling

reason to grant him bail.
2. Anticipated Delay
Respondent Jimenez further contends that
because the extradition proceedings are lengthy, it would
be unfair to confine him during the pendency of the case.
Again we are not convinced. We must emphasize that
extradition cases are summary in nature. They are
resorted to merely to determine whether the extradition
petition and its annexes conform to the Extradition Treaty,
not to determine his guilt or innocence. Neither is it, as a
rule, intended to address issues relevant to the
constitutional rights available to the accused in a criminal
action.
We are not overruling the possibility that
petitioner may, in bad faith, unduly delay the proceedings.
This is quite another matter that is not at issue here.
Thus, any further discussion of this point would be merely
anticipatory and academic.
However, if the delay is due to maneuverings of
respondent, with all the more reason would the grant of
bail not be justified.
Giving premium to delay by
considering it as a special circumstance for the grant of
bail would be tantamount to giving him the power to
grant bail to himself. It would also encourage him to
stretch out and unreasonably delay the extradition
proceedings even more. This we cannot allow.
3. Not a Flight Risk?
Jimenez further claims that he is not a flight risk.
To support this claim, he stresses that he learned of the
extradition request in June 1999; yet, he has not fled the
country. True, he has not actually fled during the
preliminary stages of the request for his extradition. Yet,
this fact cannot be taken to mean that he will not flee as
the process moves forward to its conclusion, as he hears
the footsteps of the requesting government inching closer
and closer. That he has not yet fled from the Philippines
cannot be taken to mean that he will stand his ground
and still be within reach of our government if and when it
matters; that is, upon the resolution of the Petition for
Extradition.
In any event, it is settled that bail may be applied
for and granted by the trial court at anytime after the
applicant has been taken into custody and prior to
judgment, even after bail has been previously denied. In
the present case, the extradition court may continue
hearing evidence on the application for bail, which may be
granted in accordance with the guidelines in this Decision.

(Government of the United States of America v.

Hon. Guillermo Purganan, G.R. No. 148571, Sept.
24, 2002, En Banc [Panganiban])
The Right to be Informed of the Nature and Cause
of Accusation against the Accused

246.
What are the objectives of the right to be
informed of the nature and cause of accusations
against the accused?
Held: Instructive in this regard is Section 6, Rule
110 of the Rules of Court x x x.
The purpose of the above-quoted rule is to inform
the accused of the nature and cause of the accusation

against him, a right guaranteed by no less than the

fundamental law of the land (Article III, Section 14[2],
1987 Constitution). Elaborating on the defendants right
to be informed, the Court held in Pecho v. People that the
objectives of this right are:
1) To furnish the accused with such a description
of the charge against him as will enable him
to make the defense;
2) To avail himself of his conviction or acquittal
for protection against a further prosecution
for the same cause; and
3) To inform the court of the facts alleged, so
that it may decide whether they are sufficient
in law to support a conviction, if one should
be had.
It is thus imperative that the Information filed
with the trial court be complete to the end that the
accused may suitably prepare for his defense. Corollary
to this, an indictment must fully state the elements of the
specific offense alleged to have been committed as it is
the recital of the essentials of a crime which delineates
the nature and cause of accusation against the accused.
Xxx
In the case under scrutiny, the information does
not allege the minority of the victim x x x although the

same was proven during the trial x x x. The omission is

not merely formal in nature since doctrinally, an accused
cannot be held liable for more than what he is indicted
for. It matters not how conclusive and convincing the
evidence of guilt may be, but an accused cannot be
convicted of any offense, not charged in the Complaint or
Information on which he is tried or therein necessarily
included. He has a right to be informed of the nature of
the offense with which he is charged before he is put on
trial. To convict an accused of an offense higher than
that charged in the Complaint or Information on which he
is tried would constitute unauthorized denial of that right.

(People v. Bayya, 327 SCRA 771, March 10, 2000,

En Banc [Purisima])
The Right to a Fair Trial

247.
What is the purpose of the rule barring trial or
sentence of an insane person? What are the reasons
underlying it?
Held: The rule barring trial or sentence of an
insane person is for the protection of the accused, rather
than of the public. It has been held that it is inhuman to
require an accused disabled by God to make a just
defense for his life or liberty.
To put a legally
incompetent person on trial or to convict and sentence
him is a violation of the constitutional rights to a fair trial;
and this has several reasons underlying it. For one, the
accuracy of the proceedings may not be assured, as an
incompetent defendant who cannot comprehend the
proceedings may not appreciate what information is
relevant to the proof of his innocence. Moreover, he is
not in a position to exercise many of the rights afforded a
defendant in a criminal case, e.g., the right to effectively
consult with counsel, the right to testify in his own behalf,
and the right to confront opposing witnesses, which rights
are safeguards for the accuracy of the trial result.
Second, the fairness of the proceedings may be
questioned, as there are certain basic decisions in the
course of a criminal proceeding which a defendant is
110

expected to make for himself, and one of these is his plea.

Third, the dignity of the proceedings may be disrupted,
for an incompetent defendant is likely to conduct himself
in the courtroom in a manner which may destroy the
decorum of the court. Even if the defendant remains
passive, his lack of comprehension fundamentally impairs
the functioning of the trial process. A criminal proceeding
is essentially an adversarial proceeding. If the defendant
is not a conscious and intelligent participant, the
adjudication loses its character as a reasoned interaction
between an individual and his community and becomes an
invective against an insensible object.
Fourth, it is
important that the defendant knows why he is being
punished, a comprehension which is greatly dependent
upon his understanding of what occurs at trial. An
incompetent defendant may not realize the moral
reprehensibility of his conduct. The societal goal of
institutionalized retribution may be frustrated when the
force of the state is brought to bear against one who
cannot comprehend its significance. (People v. Estrada,

333 SCRA 699, 718-719, June 19, 2000, En Banc

[Puno])
The Right to an Impartial Trial

248.
What are the two principal legal and philosophical
schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and
trial of high profile cases?
Held: There are two (2) principal legal and
philosophical schools of thought on how to deal with the
rain of unrestrained publicity during the investigation and
trial of high profile cases. The British approach the
problem with the presumption that publicity will prejudice
a jury. Thus, English courts readily stay and stop criminal
trials when the right of an accused to fair trial suffers a
threat. The American approach is different. US courts
assume a skeptical approach about the potential effect of
pervasive publicity on the right of an accused to a fair
trial. They have developed different strains of tests to
resolve this issue, i.e., substantial probability of
irreparable harm, strong likelihood, clear and present
danger, etc. (Estrada v. Desierto, G.R. Nos. 146710-

15, March 2, 2001, En Banc [Puno])

249.
Should the Ombudsman be stopped from
conducting the investigation of the cases filed against
petitioner (former President) Estrada due to the
barrage of prejudicial publicity on his guilt?

Held:
Petitioner x x x contends that the
respondent Ombudsman should be stopped from
conducting the investigation of the cases filed against him
due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed
bias and is all set to file the criminal cases in violation of
his right to due process.
Xxx
This is not the first time the issue of trial by
publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases. In People
v. Teehankee, Jr., later reiterated in the case of Larranaga
v. Court of Appeals, et al., we laid down the doctrine that:
We cannot sustain appellants claim that
he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and
broadcast media gave the case at bar pervasive
publicity, just like all high profile and high stake
criminal trials. Then and now, we rule that the

right of an accused to a fair trial is not

incompatible to a free press.
To be sure,

responsible reporting enhances an accuseds right

to a fair trial for, as well pointed out, a
responsible press has always been regarded as
the
handmaiden
of
effective
judicial
administration, especially in the criminal field x x
x. The press does not simply publish information
about trials but guards against the miscarriage of
justice by subjecting the police, prosecutors, and
judicial processes to extensive public scrutiny and
criticism.
Pervasive publicity is not per se prejudicial
to the right of an accused to fair trial. The mere
fact that the trial of appellant was given a day-today, gavel-to-gavel coverage does not by itself
prove that the publicity so permeated the mind of
the trial judge and impaired his impartiality. For
one, it is impossible to seal the minds of members
of the bench from pre-trial and other off-court
publicity of sensational criminal cases. The state
of the art of our communication system brings
news as they happen straight to our breakfast
tables and right to our bedrooms. These news
form part of our everyday menu of the facts and
fictions of life. For another, our idea of a fair and
impartial judge is not that of a hermit who is out
of touch with the world. We have not installed
the jury system whose members are overly
protected from publicity lest they lose their
impartiality. x x x. Our judges are learned in the
law and trained to disregard off-court evidence
and on-camera performances of parties to a
litigation. Their mere exposure to publications
and publicity stunts does not per se fatally infect
their impartiality.
At best, appellant can only conjure

possibility of prejudice on the part of the trial

judge due to the barrage of publicity that

characterized the investigation and trial of the
case. In Martelino, et al. v. Alejandro, et al., we
rejected this standard of possibility of prejudice
and adopted the test of actual prejudice as we
ruled that to warrant a finding of prejudicial
publicity, there must be allegation and proof that
the judges have been unduly influenced, not
simply that they might be, by the barrage of
publicity. In the case at bar, the records do not
show that the trial judge developed actual bias
against appellant as a consequence of the
extensive media coverage of the pre-trial and trial
of his case. The totality of circumstances of the
case does not prove that the trial judge acquired
a fixed opinion as a result of prejudicial publicity
which is incapable of change even by evidence
presented during the trial. Appellant has the
burden to prove this actual bias and he has not
discharged the burden.
We expounded further on this doctrine in the
subsequent case of Webb v. Hon. Raul de Leon, etc. and
its companion cases, viz.:
Again, petitioners raise the effect of
prejudicial publicity on their right to due process
while undergoing preliminary investigation. We
find no procedural impediment to its early
invocation considering the substantial risk to their
111

liberty
whole
investigation.

undergoing

preliminary

Xxx
The democratic settings, media coverage
of trials of sensational cases cannot be avoided
and oftentimes, its excessiveness has been
aggravated by kinetic developments in the
telecommunications industry. For sure, few cases
can match the high volume and high velocity of
publicity
that
attended
the
preliminary
investigation of the case at bar. Our daily diet of
facts and fiction about the case continues
unabated even today.
Commentators still
bombard the public with views not too many of
which are sober and sublime. Indeed, even the
principal actors in the case the NBI, the
respondents, their lawyers and their sympathizers
have participated in this media blitz. The
possibility of media abuses and their threat to a
fair trial notwithstanding, criminal trials cannot be
completely closed to the press and public. In the
seminal case of Richmond Newspapers, Inc. v.
Virginia, it was wisely held:
x x x
(a) The historical evidence of the
evolution of the criminal trial in Anglo-American
justice demonstrates conclusively that at the
time this Nations organic laws were adopted,
criminal trials both here and in England had long
been presumptively open, thus giving assurance
that the proceedings were conducted fairly to all
concerned and discouraging perjury, the
misconduct of participants, or decisions based on
secret bias or partiality.
In addition, the
significant community therapeutic value of public
trials was recognized: when a shocking crime
occurs, a community reaction of outrage and
public protest often follows, and thereafter the
open processes of justice serve an important
prophylactic purpose, providing an outlet for
community concern, hostility, and emotion. To
work effectively, it is important that societys
criminal process satisfy the appearance of
justice, Offutt v. United States, 348 US 11, 14,
99 L Ed 11, 75 S Ct 11, which can best be
provided by allowing people to observe such
process. From this unbroken, uncontradicted
history, supported by reasons as valid today as in
centuries past, it must be concluded that a
presumption of openness inheres in the very
nature of a criminal trial under this Nations
system of justice, Cf., e.g., Levine v. United
States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
(b) The freedoms of speech,
press, and assembly, expressly guaranteed by the
First Amendment, share a common core purpose
of assuring freedom of communication on matters
relating to the functioning of government. In
guaranteeing freedoms such as those of speech
and press, the First Amendment can be read as
protecting the right of everyone to attend trials so
as give meaning to those explicit guarantees; the
First Amendment right to receive information and
ideas means, in the context of trials, that the
guarantees of speech and press, standing alone,
prohibit government from summarily closing

courtroom doors which had long been open to the

public at the time the First Amendment was
adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an
independent right but also as a catalyst to
augment the free exercise of the other First
Amendment rights with which it was deliberately
linked by the draftsmen. A trial courtroom is a
public place where the people generally and
representatives of the media have a right to be
present, and where their presence historically has
been thought to enhance the integrity and quality
of what takes place.
(c) Even though the Constitution
contains no provision which by its terms
guarantees to the public the right to attend
criminal trials, various fundamental rights, not
expressly guaranteed, have been recognized as
indispensable to the enjoyment of enumerated
rights. The right to attend criminal trial is implicit
in the guarantees of the First Amendment:
without the freedom to attend such trials, which
people have exercised for centuries, important
aspects of freedom of speech and of the press
could be eviscerated.
Be that as it may, we recognize that
pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due
process right to fair trial. Thus, in Martelino, et al.
v. Alejandro, et al., we held that to warrant a
finding of prejudicial publicity there must be
allegation and proof that the judges have been
unduly influenced, not simply that they might be,
by the barrage of publicity. In the case at bar, we
find nothing in the records that will prove that the
tone and content of the publicity that attended
the investigation of petitioners fatally infected the
fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal
effects of publicity on the sense of fairness of the
DOJ Panel, for these are basically unbeknown and
beyond knowing. To be sure, the DOJ Panel is
composed of an Assistant Chief State Prosecutor
and Senior State Prosecutors.
Their long
experience in criminal investigation is a factor to
consider in determining whether they can easily
be blinded by the klieg lights of publicity. Indeed,
their 26-page Resolution carries no indubitable
indicia of bias for it does not appear that they
considered any extra-record evidence except
evidence properly adduced by the parties. The
length of time the investigation was conducted
despite it summary nature and the generosity
with which they accommodated the discovery
motions of petitioners speak well of their fairness.
At no instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel
on the ground of bias resulting from their
bombardment of prejudicial publicity.
Applying the above ruling, we hold that there is not

enough evidence to warrant this Court to enjoin the

preliminary investigation of the petitioner by the
respondent Ombudsman. Petitioner needs to offer more
than hostile headlines to discharge his burden of proof.

He needs to show more than weighty social science

evidence to successfully prove the impaired capacity of a
judge to render a bias-free decision. Well to note, the
cases against the petitioner are still undergoing
112

preliminary investigation by a special panel of prosecutors

in the office of the respondent Ombudsman.
No
allegation whatsoever has been made by the petitioner
that the minds of the members of this special panel have
already been infected by bias because of the pervasive
prejudicial publicity against him. Indeed, the special panel
has yet to come out with its findings and the Court cannot
second guess whether its recommendation will be
unfavorable to the petitioner. (Estrada v. Desierto,

G.R. Nos. 146710-15, March 2, 2001, En Banc

[Puno])
The Right against Self-Incrimination

250.
Accused-appellant alleges that while in the
custody of police officers, some hair strands were
taken from him without his consent and submitted to
the NBI for investigation, in violation of his right
against self-incrimination. Aside from executing a
waiver of the provisions of Article 125 of the Revised
Penal Code, accused-appellant executed a waiver of
the provisions of Article III, Section 12 of the
Constitution regarding the rights of an accused during
custodial investigation. It appears, however, that the
waivers were executed by the accused without the
assistance of a counsel of his own choice.
Held: The use of evidence against the accused
obtained by virtue of his testimony or admission without
the assistance of counsel while under custodial
investigation is proscribed under Sections 12 and 17,
Article III of the Constitution x x x.
The aforesaid rules are set forth in the
Constitution as a recognition of the fact that the
psychological if not physical atmosphere of custodial
investigations in the absence of procedural safeguards is
inherently coercive in nature. However, to paraphrase
Justice Sanchez in the case of Chavez v. Court of Appeals
(24 SCRA 663 [1968]), Compulsion does not necessarily
connote the use of violence; it may be the product of
unintentional statements. Pressure which operates to
overbear his will, disable him from making a free and
rational choice or impair his capacity for making rational
judgment would be sufficient. So is moral coercion
tending to force testimony from the unwilling lips of the
defendant.
Needless to say, the above-mentioned
provisions are an affirmation that coercion can be mental
as well as physical and that the blood of the accused is
not the only hallmark of an unconstitutional inquisition.

(Blackburn v. Alabama, 361 US 199)

It bears emphasis, however, that under the

above-quoted provisions, what is actually proscribed is the
use of physical or moral compulsion to extort
communication from the accused-appellant and not the
inclusion of his body in evidence when it may be material.
For instance, substance emitted from the body of the
accused may be received as evidence in prosecution for
acts of lasciviousness (US v. Tan Teng, 23 Phil. 145
[1912]) and morphine forced out of the mouth of the
accused may also be used as evidence against him (US v.
Ong Siu Hong, 36 Phil. 735 [1917]). Consequently,
although accused-appellant insists that hair samples were
forcibly taken from him and submitted to the NBI for
forensic examination, the hair samples may be admitted in
evidence against him, for what is proscribed is the use of
testimonial compulsion or any evidence communicative in
nature acquired from the accused under duress. (People

v. Rondero, 320 SCRA 383, 399-401, Dec. 9, 1999,

En Banc [Per Curiam])
251.
Does the right against self-incrimination extend to
administrative proceedings?
Held: In Pascual v. Board of Medical Examiners
(28 SCRA 344 [1969]), we held that the right against self-

incrimination under Section 17, Article III of the 1987

Constitution which is ordinarily available only in criminal
prosecutions, extends to administrative proceedings which
possess a criminal or penal aspect, such as an
administrative investigation of a licensed physician who is
charged with immorality, which could result in his loss of
the privilege to practice medicine if found guilty. The
Court, citing the earlier case of Cabal v. Kapunan (6 SCRA
1059 [1962]), pointed out that the revocation of ones
license as a medical practitioner, is an even greater
deprivation than forfeiture of property. (Secretary of

Justice v. Lantion, 322 SCRA 160, 184, Jan. 18,

2000, En Banc [Melo])

252.
May the right against self-incrimination be validly
invoked during inquiry in aid of legislation?
Held: [I]t has been held that a congressional
committees right to inquire is subject to all relevant
limitations placed by the Constitution on governmental
action, including the relevant limitations of the Bill of
Rights.
In another case
x x x the mere semblance of legislative
purpose would not justify an inquiry in the face of
the Bill of Rights. The critical element is the
existence of, and the weight to be ascribed to, the
interest of the Congress in demanding disclosures
from an unwilling witness. We cannot simply
assume, however, that every congressional
investigation is justified by a public need that
over-balances any private rights affected. To do
so would be to abdicate the responsibility placed
by the Constitution upon the judiciary to insure
that the Congress does not unjustifiably encroach
upon an individuals right to privacy nor abridge
his liberty of speech, press, religion or assembly.

(Watkins v. US, 354 USS 178 citing US v. Rumely,

345 US 41)

One of the basic rights guaranteed by the

Constitution to an individual is the right against selfincrimination. This right construed as the right to remain
completely silent may be availed of by the accused in a
criminal case; but it may be invoked by other witnesses
only as questions are asked of them.
This distinction is enunciated by the Court in

Romeo Chavez v. The Honorable Court of Appeals, et al.

thus

Petitioner, as accused, occupies a

different tier of protection from an ordinary
witness. Whereas an ordinary witness may be
compelled to take the witness stand and claim the
privilege as each question requiring an
incriminating answer is shot at him, an accused
may altogether refuse to take the witness stand
and refuse to answer any and all questions.

113

Moreover, this right of the accused is extended to

respondents in administrative investigations but only if
they partake of the nature of a criminal proceeding or
analogous to a criminal proceeding.
In Galman v.
Pamaran, the Court reiterated the doctrine in Cabal v.
Kapunan to illustrate the right of witnesses to invoke the
right against self-incrimination not only in criminal
proceedings but also in all other types of suit.
It was held that:
We did not therein state that since he is
not an accused and the case is not a criminal
case, Cabal cannot refuse to take the witness
stand and testify, and that he can invoke his right
against self-incrimination only when a question
which tends to elicit an answer that will
incriminate him is propounded to him. Clearly
then, it is not the character of the suit involved
but the nature of the proceedings that controls.
The privilege has consistently been held to extend
to all proceedings sanctioned by law and to all
cases in which punishment is sought to be visited
upon a witness, whether a party or not.
We do not here modify these doctrines. If we
presently rule that petitioners may not be compelled by
the respondent Committee to appear, testify and produce
evidence before it, it is only because we hold that the
questioned inquiry is not in aid of legislation and, if
pursued, would be violative of the principle of separation
of powers between the legislative and the judicial
departments of government, ordained by the Constitution.

(Bengzon, Jr. v. Senate Blue Ribbon Committee,

203 SCRA 767, Nov. 20, 1991, En Banc [Padilla])
253.
What are the two types of immunity statutes?
Which has broader scope of protection?
Held: Our immunity statutes are of American
origin. In the United States, there are two types of
statutory immunity granted to a witness. They are the
transactional immunity and the use-and-derivative-use
immunity. Transactional immunity is broader in the scope
of its protection. By its grant, a witness can no longer be
prosecuted for any offense whatsoever arising out of the
act or transaction. In contrast, by the grant of use-andderivative-use immunity, a witness is only assured that his
or her particular testimony and evidence derived from it
will not be used against him or her in a subsequent
prosecution. (Mapa, Jr. v. Sandiganbayan, 231 SCRA

783, 797-798, April 26, 1994, En Banc [Puno])

254.
Is the grant of immunity to an accused willing to
testify for the government a special privilege and,
therefore, must be strictly construed against the
accused?
Held: [W]e reject respondent courts ruling that
the grant of section 5 immunity must be strictly construed
against the petitioners. It simplistically characterized the
grant as a special privilege, as if it was gifted by the
government, ex gratia. In taking this posture, it misread
the raison d etre and the long pedigree of the right
against self-incrimination vis--vis immunity statutes.
The days of inquisition brought about the most
despicable abuses against human rights. Not the least of
these abuses is the expert use of coerced confessions to
send to the guillotine even the guiltless. To guard against
the recurrence of this totalitarian method, the right
against self-incrimination was ensconced in the

fundamental laws of all civilized countries. Over the

years, however, came the need to assist government in its
task of containing crime for peace and order is a
necessary matrix of public welfare. To accommodate the
need, the right against self-incrimination was stripped of
its absoluteness. Immunity statutes in varying shapes
were enacted which would allow government to compel a
witness to testify despite his plea of the right against selfincrimination. To insulate these statutes from the virus of
unconstitutionality, a witness is given what has come to
be known as transactional or a use-derivative-use
immunity x x x. Quite clearly, these immunity statutes are
not a bonanza from government.
Those given the
privilege of immunity paid a high price for it the
surrender of their precious right to be silent.
Our
hierarchy of values demands that the right against selfincrimination and the right to be silent should be accorded
greater respect and protection. Laws that tend to erode
the force of these preeminent rights must necessarily be
given a liberal interpretation in favor of the individual.
The government has a right to solve crimes but it must do
it, rightly. (Mapa, Jr. v. Sandiganbayan, 231 SCRA

783, 805-806, April 26, 1994, En Banc [Puno])

255.

The Right against Double Jeopardy

Discuss the two kinds of double jeopardy.

Held: Our Bill of Rights deals with two (2) kinds

of double jeopardy. The first sentence of Clause 20,
Section 1, Article III of the Constitution ordains that no
person shall be twice put in jeopardy of punishment for
the same offense. The second sentence of said clause
provides that if an act is punishable by a law and an
ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act.
Thus, the first sentence prohibits double jeopardy of
punishment for the same offense whereas, the second
contemplates double jeopardy of punishment for the same
act. Under the first sentence, one may be twice put in
jeopardy of punishment of the same act, provided that he
is charged with different offenses, or the offense charged
in one case is not included in, or does not include, the
crime charged in the other case. The second sentence
applies, even if the offense charged are not the same,
owing to the fact that one constitutes a violation of an
ordinance and the other a violation of statute. If the two
charges are based on one and the same act, conviction or
acquittal under either the law or the ordinance shall bar a
prosecution under the other. Incidentally, such conviction
or acquittal is not indispensable to sustain the plea of
double jeopardy of punishment or the same offense. So
long as jeopardy has been attached under one of the
informations charging said offense, the defense may be
availed of in the other case involving the same offense,
even if there has been neither conviction nor acquittal in
either case.
Elsewhere stated, where the offense charged are
penalized either by different sections of the same statute
or by different statutes, the important inquiry relates to
the identity of offenses charged.
The constitutional
protection against double jeopardy is available only where
an identity is shown to exist between the earlier and the
subsequent offenses charged. The question of identity or
lack of identity of offenses is addressed by examining the
essential elements of each of the two offenses charged,
as such elements are set out in the respective legislative
definitions of the offenses involved. (People v. Quijada,

259 SCRA 191, July 24, 1996)

256.
What must be proved to substantiate a claim of
double jeopardy? When may legal jeopardy attach?
114

Held:
To substantiate a claim of double
jeopardy, the following must be proven:
(1) A first jeopardy must have attached prior to
the second; (2) the first jeopardy must have been validly
terminated; (3) the second jeopardy must be for the same
offense, or the second offense includes or is necessarily
included in the offense charged in the first information, or
is an attempt to commit the same or is a frustration
thereof.
Legal jeopardy attaches only: (1) upon a valid
indictment; (b) before a competent court; (c) after
arraignment; (d) when a valid plea has been entered; and
(e) the case was dismissed or otherwise terminated
without the express consent of the accused. (Cuison v.

CA, 289 SCRA 159, April 15, 1998 [Panganiban])

257.
In its decision in a criminal case, the Judge
promulgated only the civil aspect of the case, but not
the criminal. Will the promulgation of the criminal
aspect later constitute double jeopardy?
Held: Petitioner contends that "the promulgation
by Judge Ramos on April 4, 1995 of the Respondent
Court's decision of June 30, 1991 by reading its dispositive
portion has effectively terminated the criminal cases
against the petitioner x x x." In other words, petitioner
claims that the first jeopardy attached at that point.
The Court is not persuaded. As a rule, a criminal
prosecution includes a civil action for the recovery of
indemnity. Hence, a decision in such case disposes of
both the criminal as well as the civil liabilities of an
accused. Here, trial court promulgated only the civil
aspect of the case, but not the criminal.
[T]he promulgation of the CA Decision was not
complete. In fact and in truth, the promulgation was not
merely incomplete; it was also void. In excess of its
jurisdiction, the trial judge rendered a substantially
incomplete promulgation on April 4, 1995, and he
repeated his mistake in his April 12, 1996 Order. We
emphasize that grave abuse of discretion rendered the
aforementioned act of the trial court void. Since the
criminal cases have not yet been terminated, the first
jeopardy has not yet attached. Hence, double jeopardy
cannot prosper as a defense.
We must stress that Respondent Court's
questioned Decision did not modify or amend its July 30,
1991 Decision. It merely ordered the promulgation of the
judgment of conviction and the full execution of the
penalty it had earlier imposed on petitioner. (Cuison v.

CA, 289 SCRA 159, April 15, 1998 [Panganiban])

258.
What are the exceptions to the rule that the
dismissal of a criminal case resulting in acquittal made
with the express consent of the accused or upon his
own motion will not place the accused in double
jeopardy?
Held: In the cases at bar, the order of dismissal
based on a violation of the right to speedy trial was made
upon motion by counsel for petitioner before the trial
court. It was made at the instance of the accused before
the trial court, and with his express consent. Generally,
the dismissal of a criminal case resulting in acquittal made
with the express consent of the accused or upon his own
motion will not place the accused in double jeopardy.

However, this rule admits of two exceptions, namely:

insufficiency of evidence and denial of the right to speedy
trial. Double jeopardy may attach when the proceedings
have been prolonged unreasonably, in violation of the
accuseds right to speedy trial. (Almario v. Court of

Appeals, 355 SCRA 1, Mar. 22, 2001, 2nd Div.

[Quisumbing]
259.
If the criminal case was dismissed predicated on
the right of the accused to speedy trial, but later the
trial court reconsidered its decision and allowed the
case to be reinstated as it noted that the delay in the
trial was due to circumstances beyond the control of
the parties and of the trial court, i.e., the presiding
judge was promoted to the Court of Appeals, and his
successor as trial judge was not immediately
appointed, nor another judge detailed to his sala, is
there violation of the accuseds right against double
jeopardy?
Held: Here we must inquire whether there was
unreasonable delay in the conduct of the trial so that
violation of the right to speedy trial of the accused x x x
resulted. For it must be recalled that in the application of
the constitutional guaranty of the right to speedy
disposition of cases, particular regard must also be taken
of the facts and circumstances peculiar to each case.
Both the trial court and the appellate court noted that
after pre-trial of petitioners case was terminated x x x
continuous trial was set x x x. The scheduled hearings,
however, were cancelled when the presiding judge was
promoted to the Court of Appeals, and his successor as
trial judge was not immediately appointed, nor another
judge detailed to his sala.
Xxx
As observed by respondent appellate court, delay
in the trial was due to circumstances beyond the control
of the parties and of the trial court. x x x. Thus, after a
closer analysis of these successive events, the trial court
realized that the dates of the hearings were transferred
for valid grounds. Hence, the trial court set aside its initial
order and reinstated the cases against petitioner, which
order the appellate court later sustained.
That there was no unreasonable delay of the
proceedings is apparent from the chronology of the
hearings with the reasons for their postponements or
transfers. x x x
There being no oppressive delay in the
proceedings, and no postponements unjustifiably sought,
we concur with the conclusion reached by the Court of
Appeals that petitioners right to speedy trial had not been
infringed. Where the right of the accused to speedy trial
had not been violated, there was no reason to support the
initial order of dismissal.
It follows that petitioner cannot invoke the
constitutional right against double jeopardy when that
order was reconsidered seasonably. For as petitioners
right to speedy trial was not transgressed, this exception
to the fifth element of double jeopardy that the
defendant was acquitted or convicted, or the case was
dismissed or otherwise terminated without the express
consent of the accused was not met. The trial courts
initial order of dismissal was upon motion of petitioners
counsel, hence made with the express consent of
petitioner.
That being the case, despite the
reconsideration of said order, double jeopardy did not
attach. As this Court had occasion to rule in People v.
115

Tampal, reiterated in People v. Leviste, where we

overturned an order of dismissal by the trial court
predicated on the right to speedy trial

It is true that in an unbroken line of

cases, we have held that the dismissal of cases on
the ground of failure to prosecute is equivalent to
an acquittal that would bar further prosecution of
the accused for the same offense. It must be
stressed, however, that these dismissals were
predicated on the clear right of the accused to
speedy trial. These cases are not applicable to
the petition at bench considering that the right of
the private respondents to speedy trial has not
been violated by the State. For this reason,
private respondents cannot invoke their right
against double jeopardy.
Both the trial court and the Court of Appeals were
thus not in error when they allowed reinstatement of the
cases against petitioner. (Almario v. Court of Appeals,

355 SCRA 1, Mar. 22, 2001, 2nd Div. [Quisumbing]

260.
Is there double jeopardy when an accused was
acquitted in a criminal case for reckless imprudence
but the civil aspect of the case was elevated to the
Court of Appeals and the latter found him liable for
indemnity and damages?
Held: Petitioner opines that the Court of Appeals
should not have disturbed the findings of the trial court on
the lack of negligence or reckless imprudence under the
guise of determining his civil liability. He argues that the
trial courts finding that he was neither imprudent nor
negligent was the basis for his acquittal, and not
reasonable doubt. He submits that in finding him liable
for indemnity and damages, the appellate court not only
placed his acquittal in suspicion, but also put him in
double jeopardy.
Private respondents contend that while the trial
court found that petitioners guilt had not been proven
beyond reasonable doubt, it did not state in clear and
unequivocal terms that petitioner was not recklessly
imprudent or negligent. Hence, impliedly the trial court
acquitted him on reasonable doubt. Since civil liability is
not extinguished in criminal cases, if the acquittal is based
on reasonable doubt, the Court of Appeals had to review
the findings of the trial court to determine if there was a
basis for awarding indemnity and damages.
Preliminarily, petitioners claim that the decision of
the appellate court awarding indemnity placed him in
double jeopardy is misplaced. x x x. When a person is
charged with an offense and the case is terminated either
by acquittal or conviction or in any manner without the
consent of the accused, the latter cannot again be
charged with the same or identical offense . This is double
jeopardy. For double jeopardy to exist, the following
elements must be established: (1) a first jeopardy must
have attached prior to the second; (2) the first jeopardy
must have terminated; and (3) the second jeopardy must
be for the same offense as the first. In the instant case,
petitioner had once been placed in jeopardy by the filing
of Criminal Case No. 066 and the jeopardy was terminated
by his discharge. The judgment of acquittal became
immediately final. Note, however, that what was elevated
to the Court of Appeals by private respondents was the
civil aspect of Criminal Case No. 066. Petitioner was not
charged anew in CA-G.R. CV No. 19240 with a second
criminal offense identical to the first offense. The records

clearly show that no second criminal offense was being

imputed to petitioner on appeal. In modifying the lower
courts judgment, the appellate court did not modify the
judgment of acquittal. Nor did it order the filing of a
second criminal cases against petitioner for the same
offense.
Obviously, therefore, there was no second
jeopardy to speak of. Petitioners claim of having been
placed in double jeopardy is incorrect.
Our law recognizes two kinds of acquittal, with
different effects on the civil liability of the accused. First
is an acquittal on the ground that the accused is not the
author of the act or omission complained of.
This
instance closes the door to civil liability, for a person who
has been found to be not the perpetrator of any act or
omission cannot and can never be held liable for such or
omission. There being no delict, civil liability ex delicto is
out of the question, and the civil action, if any, which may
be instituted must be based on grounds other than the
delict complained of. This is the situation contemplated in
Rule 111 of the Rules of Court. The second instance is an
acquittal based on reasonable doubt on the guilt of the
accused. In this case, even if the guilt of the accused has
not been satisfactorily established, he is not exempt from
civil liability which may be proved by preponderance of
evidence only. This is the situation contemplated in
Article 29 of the Civil Code, where the civil action for
damages is for the same act or omission. Although the
two actions have different purposes, the matters
discussed in the civil case are similar to those discussed in
the criminal case. However, the judgment in the criminal
proceeding cannot be read in evidence in the civil action
to establish any fact there determined, even though both
actions involve the same act or omission. The reason for
this rule is that the parties are not the same and
secondarily, different rules of evidence are applicable.
Hence, notwithstanding herein petitioners acquittal, the
Court of Appeals in determining whether Article 29
applied, was not precluded from looking into the question
of petitioners negligence or reckless imprudence.

(Manantan v. Court of Appeals, 350 SCRA 387, Jan.

29, 2001, 2nd Div. [Quisumbing])
The Right against Ex Post Facto Law and Bill of
Attainder

261.
What is a bill of attainder? Is P.D. 1866 a bill of
attainder?
Held: [T]he Court, in People v. Ferrer, defined a
bill of attainder as a legislative act which inflicts
punishment on individuals or members of a particular
group without a judicial trial. Essential to a bill of
attainder are a specification of certain individuals or a
group of individuals, the imposition of a punishment,
penal or otherwise, and the lack of judicial trial. This last
element, the total lack of court intervention in the finding
of guilt and the determination of the actual penalty to be
imposed, is the most essential. P.D. No. 1866 does not
possess the elements of a bill of attainder. It does not
seek to inflict punishment without a judicial trial.
Nowhere in the measure is there a finding of guilt and an
imposition of a corresponding punishment. What the
decree does is to define the offense and provide for the
penalty that may be imposed, specifying the qualifying
circumstances that would aggravate the offense. There is
no encroachment on the power of the court to determine
after due hearing whether the prosecution has proved
beyond reasonable doubt that the offense of illegal
possession of firearms has been committed and that the
qualifying circumstances attached to it has been
116

established also beyond reasonable doubt as the

Constitution and judicial precedents require. (Misolas v.

Panga, 181 SCRA 648, 659-660, Jan. 30, 1990, En

Banc [Cortes])
262.
What is an ex post facto law? Is R.A. No. 8249 an
ex post facto law?

Held: Ex post facto law, generally, prohibits

retrospectivity of penal laws. R.A. 8249 is not a penal
law. It is a substantive law on jurisdiction which is not
penal in character. Penal laws are those acts of the
Legislature which prohibit certain acts and establish
penalties for their violations; or those that define crimes,
treat of their nature, and provide for their punishment.
R.A. 7975, which amended P.D. 1606 as regards the
Sandiganbayans jurisdiction, its mode of appeal and other
procedural matters, has been declared by the Court as not
a penal law, but clearly a procedural statute, i.e., one
which prescribes rules of procedure by which courts
applying laws of all kinds can properly administer justice.
Not being a penal law, the retroactive application of R.A.
8249 cannot be challenged as unconstitutional.
Petitioners and intervenors contention that their
right to a two-tiered appeal which they acquired under
R.A. 7975 has been diluted by the enactment of R.A.
8249, is incorrect. The same contention has already been
rejected by the court several times considering that the
right to appeal is not a natural right but statutory in
nature that can be regulated by law. The mode of
procedure provided for in the statutory right of appeal is
not included in the prohibition against ex post facto laws.
R.A. 8249 pertains only to matters of procedure, and
being merely an amendatory statute it does not partake
the nature of an ex post facto law. It does not mete out a
penalty and, therefore, does not come within the
prohibition. Moreover, the law did not alter the rules of
evidence or the mode of trial. It has been ruled that
adjective statutes may be made applicable to actions
pending and unresolved at the time of their passage.
At any rate, R.A. 8249 has preserved the
accuseds right to appeal to the Supreme Court to review
questions of law. On the removal of the intermediate
review of facts, the Supreme Court still has the power of
review to determine if the presumption of innocence has
been convincingly overcome. (Panfilo M. Lacson v.

The Executive Secretary, et. al., G.R. No. 128096,

Jan. 20, 1999 [Martinez])
GOD BLESS

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?

117

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)

stock; x x x (Sec. 2[13], Introductory Provisions, Executive

Order No. 292)
292.

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.

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 governmentowned 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

When is a Government-Owned or Controlled

Corporation deemed to be performing proprietary
function? When is it deemed to be performing
governmental function?

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. T5710 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
118

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 governmentowned 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-in-interest of the
PSC. Under Executive Order No. 125-A, issued in April 1987,
the NTC became an attached agency of the Department of
Transportation and Communications.
In the regulatory communications industry, the NTC
has the sole authority to issue Certificates of Public
Convenience and Necessity (CPCN) for the installation,
operation, and maintenance of communications facilities and
services, radio communications systems, telephone and
telegraph systems. Such power includes the authority to
determine the areas of operations of applicants for
telecommunications services. Specifically, Section 16 of the
Public Service Act authorizes the then PSC, upon notice and
hearing, to issue Certificates of Public Convenience for the
operation of public services within the Philippines whenever
the Commission finds that the operation of the public service
proposed and the authorization to do business will promote the
public interests in a proper and suitable manner.
(Commonwealth Act No. 146, Section 16[a]) The procedure
governing the issuance of such authorizations is set forth in
Section 29 of the said Act x x x. (Republic v. Express
Telecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002,
1st Div. [Ynares-Santiago])

119

Is the filing of the administrative rules and

regulations with the UP Law Center the operative
act that gives the rules force and effect?

Administrative Order, legally, until it is published, is

invalid within the context of Article 2 of Civil Code,
which reads:

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:

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

296.

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:

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

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 quasilegislative 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

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
120

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

Administrative Code of 1987.

as

required

by

the

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.
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
121

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, 3 rd
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 multiyear obligatory authority to assume payment of the total VRIS
Project for lack of legal basis. Corollarily, under Section 33 of
R.A. No. 8760, no agency shall enter into a multi-year contract
without a multi-year obligational authority, thus:
SECTION 33.
Contracting Multi-Year
Projects. - In the implementation of multi-year projects, no
agency shall enter into a multi-year contract without a multiyear 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 QuijanoPadilla, G.R. No. 151992, Sept. 18, 2002, En Banc [SandovalGutierrez])
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 above-mentioned requirements shall be void, and the
officers entering into the contract shall be liable to the
Government or other contracting party for any consequent
damage to the same as if the transaction had been wholly
between private parties. So when the contracting officer
transcends his lawful and legitimate powers by acting in excess
of or beyond the limits of his contracting authority, the
Government is not bound under the contract. It would be as if
the contract in such case were a private one, whereupon, he
122

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 QuijanoPadilla, G.R. No. 151992, Sept. 18, 2002, En Banc [SandovalGutierrez])
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 quasi-judicial agency in this country,
or duplicate much less take over the functions of the
latter.
The most that may be conceded to the
Commission in the way of adjudicative power is that it may
investigate, i.e., receive evidence and make findings of fact as
regards claimed human rights violations involving civil and
political rights. But fact finding is not adjudication, and cannot
be likened to the judicial function of a court of justice, or even
a quasi-judicial agency or official. The function of receiving
evidence and ascertaining therefrom the facts of a controversy
is not a judicial function, properly speaking. To be considered
such, the faculty of receiving evidence and making factual
conclusions in a controversy must be accompanied by the
authority of applying the law to those factual conclusions to the
end that the controversy may be decided or determined
authoritatively, finally and definitively, subject to such appeals
or modes of review as may be provided by law. This function,
to repeat, the Commission does not have.
(Simon, Jr. v. Commission on Human Rights, 229 SCRA 117,
125, Jan. 5, 1994, En Banc [Vitug, J.])
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 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 non-observance
of procedural due process, or does it involve the
exercise of the COMELEC's quasi-judicial
function?

Held: Taking cognizance of private respondent's

petitions for annulment of petitioner's proclamation, COMELEC
was not merely performing an administrative function. The
administrative powers of the COMELEC include the power to
determine the number and location of polling places, appoint
election officials and inspectors, conduct registration of voters,
deputize law enforcement agencies and governmental
instrumentalities to ensure free, orderly, honest, peaceful and
credible elections, register political parties, organizations or
coalition, accredit citizen's arms of the Commission, prosecute
election offenses, and recommend to the President the removal
of or imposition of any other disciplinary action upon any
officer or employee it has deputized for violation or disregard of
its directive, order or decision. In addition, the Commission
also has direct control and supervision over all personnel
involved in the conduct of election. However, the resolution of
the adverse claims of private respondent and petitioner as
regards the existence of a manifest error in the questioned
certificate of canvass requires the COMELEC to act as an
arbiter. It behooves the Commission to hear both parties to
determine the veracity of their allegations and to decide whether
the alleged error is a manifest error. Hence, the resolution of
this issue calls for the exercise by the COMELEC of its quasijudicial 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
123

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, 3 rd Div.
[Panganiban])
306.

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, 3 rd Div.
[Davide])

D. THE LAW OF PUBLIC OFFICERS

307.

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.

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;
when the issue involved is purely a legal question;
when the administrative action is patently illegal
amounting to lack or excess of jurisdiction;

Define Appointment. Discuss its nature.

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, 3 rd 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
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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
125

rank and not to the office or to the position to which they may
be appointed. Thus, a career executive service officer may be
transferred or reassigned from one position to another without
losing his rank which follows him wherever he is transferred or
reassigned. In fact, a CESO suffers no diminution of salary
even if assigned to a CES position with lower salary grade, as he
is compensated according to his CES rank and not on the basis
of the position or office he occupies.
In the case at bar, there is no question that respondent
Ramon S. Roco, though a CES eligible, does not possess the
appropriate CES rank, which is CES rank level V, for the
position of Regional Director of the LTO (Region V). Falling
short of one of the qualifications that would complete his
membership in the CES, respondent cannot successfully
interpose violation of security of tenure. Accordingly, he could
be validly reassigned to other positions in the career executive
service. x x x
Moreover, under the mobility and flexibility principles
of the Integrated Reorganization Plan, CES personnel may be
reassigned or transferred from one position to another x x x.
One last point. Respondent capitalizes on the fact that
petitioner Luis Mario M. General is not a CES eligible. The
absence, however, of such CES eligibility is of no moment. As
stated in Part III, Chapter I, Article IV, paragraph 5(c), of the
Integrated Reorganization Plan
x x x the President may, in exceptional cases,
appoint any person who is not a Career Executive
Service eligible; provided that such appointee shall
subsequently take the required Career Executive
Service examination and that he shall not be promoted
to a higher class until he qualified in such
examination.
Evidently, the law allows appointment of those who are
not CES eligible, subject to the obtention of said eligibility, in
the same manner that the appointment of respondent who does
not possess the required CES rank (CES rank level V) for the
position of Regional Director of the LTO, is permitted in a
temporary capacity. (General v. Roco, 350 SCRA 528, Jan. 29,
2001, 1st Div. [Ynares-Santiago])
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
126

authority to investigate charges against respondent by

preventing the latter from intimidating or in any way influencing
witnesses against him. If the investigation is not finished and a
decision is not rendered within that period, the suspension will
be lifted and the respondent will automatically be reinstated. If
after investigation respondent is found innocent of the charges
and is exonerated, he should be reinstated. However, no
compensation was due for the period of preventive suspension
pending investigation. The Civil Service Act of 1959 (R.A. No.
2260) providing for compensation in such a case once the
respondent was exonerated was revised in 1975 and the
provision on the payment of salaries during suspension was
deleted.
But although it is held that employees who are
preventively suspended pending investigation are not entitled to
the payment of their salaries even if they are exonerated, they
are entitled to compensation for the period of their suspension
pending appeal if eventually they are found innocent.
Preventive suspension pending investigation x x x is
not a penalty but only a means of enabling the disciplining
authority to conduct an unhampered investigation. On the other
hand, preventive suspension pending appeal is actually punitive
although it is in effect subsequently considered illegal if
respondent is exonerated and the administrative decision finding
him guilty is reversed. Hence, he should be reinstated with full
pay for the period of the suspension. (Gloria v. CA, G.R. No.
131012, April 21, 1999, En Banc [Mendoza])
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
xx
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])
318.

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
127

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.

Miriam Defensor-Santiago? Will the order of

suspension prescribed by Republic Act No. 3019
not encroach on the power of Congress to
discipline its own ranks under the Constitution?
Held: The petition assails the authority of the
Sandiganbayan to decree a ninety-day preventive suspension of
Mme. Miriam Defensor-Santiago, a Senator of the Republic of
the Philippines, from any government position, and furnishing a
copy thereof to the Senate of the Philippines for the
implementation of the suspension order.
The authority of the Sandiganbayan to order the
preventive suspension of an incumbent public official charged
with violation of the provisions of Republic Act No. 3019 has
both legal and jurisprudential support. X x x
In the relatively recent
Sandiganbayan, the Court reiterated:

case

of

Segovia

v.

The validity of Section 13, R.A. 3019, as

amended treating of the suspension pendente lite of
an accused public officer may no longer be put at
issue, having been repeatedly upheld by this Court.
X x x
The provision of suspension pendente lite
applies to all persons indicted upon a valid information
under the Act, whether they be appointive or elective
officials; or permanent or temporary employees, or
pertaining to the career or non-career service. (At pp.
336-337)
It would appear, indeed, to be a ministerial duty of the
court to issue an order of suspension upon determination of the
validity of the information filed before it. Once the information
is found to be sufficient in form and substance, the court is
bound to issue an order of suspension as a matter of course, and
there seems to be no ifs and buts about it. 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.

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.

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.)

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])

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

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

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
128

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:
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?

129

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)
321.

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)
322.

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)
323.

Does the prohibition in Section 13, Article VII of

the 1987 Constitution insofar as Cabinet members,
their deputies or assistants are concerned admit of
the broad exceptions made for appointive officials
in general under Section 7, par. (2), Article IX-B?

Held: The threshold question therefore is: does the

prohibition in Section 13, Article VII of the 1987 Constitution
insofar as Cabinet members, their deputies or assistants are
concerned admit of the broad exceptions made for appointive
officials in general under Section 7, par. (2), Article IX-B
which, for easy reference is quoted anew, thus: Unless
otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or
employment in the government or any subdivision, agency or
instrumentality thereof, including government-owned or
controlled corporation or their subsidiaries.
We rule in the negative.
Xxx
The practice of designating members of the Cabinet,
their deputies and assistants as members of the governing bodies
or boards of various government agencies and instrumentalities,
including government-owned and controlled corporations,
became prevalent during the time legislative powers in this
country were exercised by former President Ferdinand E.
Marcos pursuant to his martial law authority. There was a
proliferation of newly-created agencies, instrumentalities and
government-owned and controlled corporations created by
presidential decrees and other modes of presidential issuances
where Cabinet members, their deputies or assistants were
designated to head or sit as members of the board with the
corresponding salaries, emoluments, per diems, allowances and
other perquisites of office. X x x
This practice of holding multiple offices or positions in
the government soon led to abuses by unscrupulous public
officials who took advantage of this scheme for purposes of
self-enrichment. X x x
Particularly odious and revolting to the 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 twentythree (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, VicePresident, 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
130

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 VicePresident who, under Section 13 of Article VII is allowed to
hold other office or employment when so authorized by the
Constitution, but who as an elective public official under Sec. 7,
par. (1) of Article IX-B is absolutely ineligible for appointment
or designation in any capacity to any public office or position
during his tenure. Surely, to say that the phrase unless
otherwise provided in this Constitution found in Section 13,
Article VII has reference to Section 7, par. (1) of Article IX-B
would render meaningless the specific provisions of the
Constitution authorizing the Vice-President to become a
member of the Cabinet (Sec. 3, Ibid.), and to act as President
without relinquishing the Vice-Presidency where the President
shall not have been chosen or fails to qualify (Sec. 7, Article
VII). Such absurd consequence can be avoided only by
interpreting the two provisions under consideration as one, i.e.,
Section 7, par. (1) of Article IX-B providing the general rule and
the other, i.e., Section 13, Article VII as constituting the
exception thereto. In the same manner must Section 7, par. (2)
of Article IX-B be construed vis--vis Section 13, Article VII.
Xxx
Since the evident purpose of the framers of the 1987
Constitution is to impose a stricter prohibition on the President,
Vice-President, members of the Cabinet, their deputies and
assistants with respect to holding multiple offices or
employment in the government during their tenure, the
exception to this prohibition must be read with equal severity.
On its face, the language of Section 13, Article VII is
prohibitory so that it must be understood as intended to be a
positive and unequivocal negation of the privilege of holding
multiple government offices and employment. Verily, wherever
the language used in the constitution is prohibitory, it is to be

understood as intended to be a positive and unequivocal

negation (Varney v. Justice, 86 Ky 596; 6 S.W. 457; Hunt v.
State, 22 Tex. App. 396, 3 S.W. 233). The phrase unless
otherwise provided in this Constitution must be given a literal
interpretation to refer only to those particular instances cited in
the Constitution itself, to wit: the Vice-President being
appointed as a member of the Cabinet under Section 3, par. (2),
Article VII; or acting as President in those instances provided
under Section 7, pars. (2) and (3), Article VII; and, the Secretary
of Justice being ex-officio member of the Judicial and Bar
Council by virtue of Section 8 (1), Article VIII.
Xxx
It being clear x x x that the 1987 Constitution seeks to
prohibit the President, Vice-President, members of the Cabinet,
their deputies or assistants from holding during their tenure
multiple offices or employment in the government, except in
those cases specified in the Constitution itself and as above
clarified with respect to posts held without additional
compensation in an ex-officio capacity as provided by law and
as required by the primary functions of their office, the citation
of Cabinet members (then called Ministers) as examples during
the debate and deliberation on the general rule laid down for all
appointive officials should be considered as mere personal
opinions which cannot override the 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
131

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])
324.

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 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 governmentowned 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
132

Union v. Executive Secretary, 194 SCRA 317, Feb. 22, 1991,

En Banc [Fernan, CJ])
325.

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])
326.

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).
327.

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])
328.

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)
329.

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])
330.

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.

133

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, 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, 2 nd Div.
[Quisumbing])
331.

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 with
the Civil Service Law. In the exercise of this power, the
134

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-inCharge of the EID is legally unassailable. (Matibag v.
Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])
332.

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 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
135

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])
333.

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 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.
136

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 mixup 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.
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
137

extra effort to rebel against the allure of legal oversimplification, 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])
334.

What is abandonment of office?

essential elements?

What are its

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. Nonuser 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])
335.

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, 665668, Feb. 15, 2001, En Banc [Gonzaga-Reyes])

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

336.

Distinguish term of office from tenure of the

incumbent.

Held: In the law of public officers, there is a settled

distinction between term and tenure. [T]he term of an
office must be distinguished from the tenure of the incumbent.
The term means the time during which the officer may claim to
hold office as of right, and fixes the interval after which the
several incumbents shall succeed one another. The tenure
represents the term during which the incumbent actually holds
the office. The term of office is not affected by the hold-over.
The tenure may be shorter than the term for reasons within or
beyond the power of the incumbent. (Thelma P. Gaminde v.
COA, G.R. No. 140335, Dec. 13, 2000, En Banc [Pardo])
337.

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])
338.

What is the hold-over doctrine?

purpose?

What is its

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.
138

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, 2 nd 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.])
339.

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])
340.

What is abandonment of an office? What are its

requisites?
How is it distinguished from
resignation?

Held: Abandonment of an office has been defined as

the voluntary relinquishment of an office by the holder, with the
intention of terminating his possession and control thereof.
Indeed, abandonment of office is a species of resignation; while
resignation in general is a formal relinquishment, abandonment
is a voluntary relinquishment through nonuser.
Abandonment springs from and is accompanied by
deliberation and freedom of choice. Its concomitant effect is
that the former holder of an office can no longer legally
repossess it even by forcible reoccupancy.
Clear intention to abandon should be manifested by the
officer concerned. Such intention may be express or inferred
from his own conduct. Thus, the failure to perform the duties
pertaining to the office must be with the 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)
341.

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 [GonzagaReyes])

139

342.

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])
343.

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 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])
344.

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 [GonzagaReyes])
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)
345.

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;
140

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
346.

Discuss the Right of Suffrage, and its substantive

and procedural requirements.

Held: In a representative democracy such as ours, the

right of suffrage, although accorded a prime niche in the
hierarchy of rights embodied in the fundamental law, ought to
be exercised within the proper bounds and framework of the
Constitution and must properly yield to pertinent laws skillfully
enacted by the Legislature, which statutes for all intents and
purposes, are crafted to effectively insulate such so cherished
right from ravishment and preserve the democratic institutions
our people have, for so long, guarded against the spoils of
opportunism, debauchery and abuse.
To be sure, the right of suffrage x x x is not at all
absolute. Needless to say, the exercise of the right of suffrage,
as in the enjoyment of all other rights, is subject to existing
substantive and procedural requirements embodied in our
Constitution, statute books and other repositories of law. Thus,
as to the substantive aspect, Section 1, Article V of the
Constitution provides:
SECTION 1.
SUFFRAGE MAY BE
EXERCISED BY ALL CITIZENS OF THE
PHILIPPINES NOT OTHERWISE DISQUALIFIED
BY LAW, WHO ARE AT LEAST EIGHTEEN
YEARS OF AGE, AND WHO SHALL HAVE
RESIDED IN THE PHILIPPINES FOR AT LEAST
ONE YEAR AND IN THE PLACE WHEREIN THEY
PROPOSE TO VOTE FOR AT LAST SIX MONTHS
IMMEDIATELY PRECEDING THE ELECTION.
NO LITERACY, PROPERTY, OR OTHER
SUBSTANTIVE REQUIREMENT SHALL BE
IMPOSED ON THE EXERCISE OF SUFFRAGE.
As to the procedural limitation, the right of a citizen to
vote is necessarily conditioned upon certain procedural
requirements he must undergo: among others, the process of
registration. Specifically, a citizen in order to be qualified to
exercise his right to vote, in addition to the minimum
requirements set by the fundamental charter, is obliged by law
to register, at present, under the provisions of Republic Act No.
8189, otherwise known as the Voters Registration Act of
1996. (Akbayan-Youth v. COMELEC, 355 SCRA 318, Mar.
26, 2001, En Banc [Buena])
347.

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])
348.

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])
349.

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.

141

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.

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.

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.

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.

Xxx
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

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
142

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.
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.
Xxx
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.

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])
350.

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

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
143

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])
351.

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])
352.

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])
353.

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 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 [Austria-Martinez])
354.

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
144

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.
355.

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)

356.

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?

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)
357.

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])
358.

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.
359.

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.
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).
360.

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])
361.

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
145

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])
362.

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.
363.

Cite instances when Comelec may or may not

validly declare failure of elections.

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 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])
364.

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

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])
365.

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,
146

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])
366.

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.

petition to declare failure of elections or to annul election

results. (Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31,
2000, En Banc [Quisumbing])
367.

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, VicePresident, 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.

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.
Given these circumstances, public respondent cannot
be said to have gravely erred in treating petitioners action as a

What are pre-proclamation cases, and exceptions

thereto? What Court has jurisdiction over preproclamation cases?

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])
368.

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
147

proclamation of the winning candidate had already been made.

(Federico S. Sandoval v. COMELEC, G.R. No. 133842, Jan.
26, 2000 [Puno])
369.

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])
370.

What is a counter-protest?
filed?

When should it be

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])
371.

What is the effect of death of a party in an election

protest? Should it warrant the dismissal of the
protest?

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])
373.

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])
374.

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)
372.

Does the fact that one or a few candidates in an

election got zero votes in one or a few precincts
adequately support a finding that the election
returns are statistically improbable?

Held: From experiences in past elections, it is possible

for one candidate or even a few candidates to get zero votes in
one or a few precincts.
Standing alone and without more, the bare fact that a
candidate for public office received zero votes in one or two
precincts can not adequately support a finding that the subject
election returns are statistically improbable. A no-vote for a
particular candidate in election returns is but one strand in the
web of circumstantial evidence that those election returns were
prepared under duress, force and intimidation. In the case of

What Court has jurisdiction over election protests

and quo warranto proceedings involving
Sangguniang Kabataan (SK) elections?

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
148

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 IXC, 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])

378.

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

F. THE LAW OF PUBLIC CORPORATIONS

375.

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 Constitution and the national sovereignty as
well as the territorial integrity of the Republic of the Philippines.
(Sec. 15, Art. X, 1987 Constitution)
376.

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])
377.

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])

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])
379.

Discuss the concept of local autonomy.

149

Held:
Autonomy is either decentralization of
administration or decentralization of power.
There is
decentralization of administration when the central government
delegates administrative powers to political subdivisions in
order to broaden the base of government and in the process to
make local governments more responsive and accountable, and
ensure their fullest development as self-reliant communities and
make them more effective partners in the pursuit of national
development and social progress. At the same time, it relieves
the central government of the burden of managing local affairs
and enables it to concentrate on national concerns. The
President exercises general supervision over them, but only to
ensure that local affairs are administered according to law. He
has no control over their acts in the sense that he can substitute
their judgments with his own.
Decentralization of power, on the other hand, involves
an abdication of political power in favor of local government
units declared autonomous. In that case, the autonomous
government is free to chart its own destiny and shape its own
future with minimum intervention from central authorities.
According to a constitutional author, decentralization of power
amounts to self-immolation, since in that event, the
autonomous government becomes accountable not to the central
authorities but to its constituency. (Limbona v. Mangelin, 170
SCRA 786, Feb. 28, 1989, En Banc [Sarmiento])
380.

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])
381.

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)
382.

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])
383.

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
150

Therefore, the plebiscite on the creation of Barangay

Karangalan should be held in abeyance pending final resolution
of the boundary dispute between the City of Pasig and the
Municipality of Cainta by the Regional Trial Court of Antipolo
City. In the same vein, the plebiscite held on March 15, 1997 to
ratify the creation of Barangay Napico, Pasig City, should be
annulled and set aside. (City of Pasig v. COMELEC, 314
SCRA 179, Sept. 10, 1999, En Banc [Ynares-Santiago])
384.

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 governmentowned 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.])
385.

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])
386.

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 boundaries with neighboring
municipalities, as in this case, then, it may be
concluded that the legislative intent behind the law has
been sufficiently served.
151

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])
387.

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.

389.

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.

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])
388.

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])

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?

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.
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])
390.

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
152

required an ordinance for this purpose. (Municipality of

Paranaque v. V.M. Realty Corp., 292 SCRA 678, July 20, 1998
[Panganiban])
391.

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.
392.

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)
393.

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)
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
153

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])
394.

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)
395.

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)
396.

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)
397.

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)
398.

May a municipality adopt the work already

performed in good faith by a private lawyer, which
work proved beneficial to it?

Held: Although a municipality may not hire a private

lawyer to represent it in litigations, in the interest of substantial
justice, however, it was held that a municipality may adopt the
work already performed in good faith by such private lawyer,
which work is beneficial to it (1) provided that no injustice is
thereby heaped on the adverse party and (2) provided further
that no compensation in any guise is paid therefor by said
municipality to the private lawyer. Unless so expressly adopted,
the private lawyers work cannot bind the municipality. (Ramos
v. CA, 269 SCRA 34, March 3, 1997)
399.

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
154

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])
400.

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.

Held: Under existing law, local government units, in

addition to having administrative autonomy in the exercise of
their functions, enjoy fiscal autonomy as well. Fiscal autonomy
means that local governments have the power to create their
own sources of revenue in addition to their equitable share in the
national taxes released by the national government, as well as
the power to allocate their resources in accordance with their
own priorities. It extends to the preparation of their budgets,
and local officials in turn have to work within the constraints
thereof. They are not formulated at the national level and
imposed on local governments, whether they are relevant to
local needs and resources or not. Hence, the necessity of a
balancing of viewpoints and the harmonization of proposals
from both local and national officials, who in any case are
partners in the attainment of national goals.
Local fiscal autonomy does not, however, rule out any
manner of national government intervention by way of
supervision, in order to ensure that local programs, fiscal and
otherwise, are consistent with national goals. Significantly, the
President, by constitutional fiat, is the head of the economic and
planning agency of the government (Section 9, Article XII of the
Constitution), primarily responsible for formulating and
implementing continuing, coordinated and integrated social and
economic policies, plans and programs (Section 3, Chapter 1,
Subtitle C, Title II, Book V, EO 292 [Administrative Code of
1987]) for the entire country. However, under the Constitution,
the formulation and the implementation of such policies and
programs are subject to consultations with the appropriate
public agencies, various private sectors, and local government
units. The President cannot do so unilaterally. (Pimentel, Jr. v.
Aguirre, 336 SCRA 201, July 19, 2000, En Banc
[Panganiban])
402.

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

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])
401.

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?

What are the requisites before the President may

interfere in local fiscal matters?

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])
403.

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
155

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.

pursuant to Sec. 68 of the Local Government Code, which

makes decisions in administrative cases immediately executory.

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: 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])

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.

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.

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.

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])
404.

405.

406.

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?

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.
407.

Neither can the succession of the then vice-mayor of

Lapuyan x x x and the highest ranking municipal councilor of
Lapuyan x x x to the offices of mayor and vice-mayor,
respectively, be considered proof that the decision in AC No.
12-91 had become final because it appears to have been made

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?

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?
156

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])
408.

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])
409.

Lonzanida was previously elected and served two

consecutive terms as mayor of San Antonio,
Zambales prior to the May 1995 mayoral elections.
In the May 1995 elections he again ran for mayor
of San Antonio, Zambales and was proclaimed
winner. He assumed office and discharged the
rights and duties of mayor until March 1998 when
he was ordered to vacate the post by reason of the
COMELEC decision on the election protest against
him which declared his opponent Juan Alvez the
duly elected mayor. Alvez served the remaining
portion of the 1995-1998 mayoral term.
Is
Lonzanida still qualified to run for mayor of San
Antonio, Zambales in the May 1998 local
elections?

Held: The two requisites for the application of the

three-term rule was absent. First, Lonzanida cannot be
considered as having been duly elected to the post in the May
1995 elections, and second, he did not fully serve the 1995-1998
mayoral term by reason of involuntary relinquishment of office.
After a re-appreciation and revision of the contested ballots the
COMELEC itself declared by final judgment that Lonzanida
lost in the May 1995 mayoral elections and his previous
proclamation as winner was declared null and void. His
assumption of office as mayor cannot be deemed to have been
by reason of a valid election but by reason of a void
proclamation. It has been repeatedly held by the SC that a
proclamation subsequently declared void is no proclamation at
all and while a proclaimed candidate may assume office on the
strength of the proclamation of the Board of Canvassers he is
only a presumptive winner who assumes office subject to the
final outcome of the election protest. Lonzanida did not serve a
term as mayor of San Antonio, Zambales from May 1995 to
March 1998 because he was not duly elected to the post; he
merely assumed office as presumptive winner, which
presumption was later overturned by the COMELEC when it
decided with finality that Lonzanida lost in the May 1995
mayoral elections.
Second, Lonzanida cannot be deemed to have served
the May 1995 to 1998 term because he was ordered to vacate his
post before the expiration of the term. His opponents'
contention that Lonzanida should be deemed to have served one
full term from May 1995-1998 because he served the greater
portion of that term has no legal basis to support it; it disregards
the second requisite for the application of the disqualification,
i.e., that he has fully served three consecutive terms. The

second sentence of the constitutional provision under scrutiny

states, "Voluntary renunciation of office for any length of time
shall not be considered as an interruption in the continuity of
service for the full term for which he was elected." The clear
intent of the framers of the Constitution to bar any attempt to
circumvent the three-term limit by a voluntary renunciation of
office and at the same time respect the people's choice and grant
their elected official full service of a term is evident in this
provision. Voluntary renunciation of a term does not cancel the
renounced term in the computation of the three term limit;
conversely, involuntary severance from office for any length of
time short of the full term provided by law amounts to an
interruption of continuity of service. Lonzanida vacated his post
a few months before the next mayoral elections, not by
voluntary renunciation but in compliance with the legal process
of writ of execution issued by the COMELEC to that effect.
Such involuntary severance from office is an interruption of
continuity of service and thus, Lonzanida did not fully serve the
1995-1998 mayoral term.
In sum, Lonzanida was not the duly elected mayor and
that he did not hold office for the full term; hence, his
assumption of office from May 1995 to March 1998 cannot be
counted as a term for purposes of computing the three-term
limit. (Lonzanida v. COMELEC, 311 SCRA 602, July 28,
1999, En Banc [Gonzaga-Reyes])
410.

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
157

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 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])
411.

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 threeterm 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.
158

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
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

This same issue has been passed and ruled upon by the
Commission on Elections no less than five times. Consistently,
it has held that the term of a newcomer in recall elections cannot
be counted as a full term and may not thus be included in
counting the three-term limit prescribed under the law. The
Commission on Elections, with its fact-finding facilities, its
familiarity with political realities, and its peculiar expertise in
dealing with election controversies, should be in a good vantage
point to resolve issues of this nature. Concededly, no ready
made formulae are always extant to address occasional complex
issues, allowing time and experience to merely evolve and
ultimately provide acceptable solutions. In the administration of
election laws, it would be unsound by an excessive zeal to
remove from the Commission on Elections the initiative it takes
on such questions which, in fact, by legal mandate properly
belong to it.
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)
412.

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, 1 st Div. [Kapunan])
413.

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?

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.

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.

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.

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 LAKASNUCD-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

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.

159

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, 1 st Div. [Kapunan])
414.

May an incumbent Vice-Governor, while

concurrently the Acting Governor, continue to
preside over the sessions of the Sangguniang
Panlalawigan (SP)? If no, who may preside in the
meantime?

Held: Being the acting governor, the Vice-governor

cannot continue to simultaneously exercise the duties of the
latter office, since the nature of the duties of the Provincial
Governor calls for a full-time occupant to discharge them. Such
is not only consistent with but also appears to be the clear
rationale of the new (Local Government) Code wherein the
policy of performing dual functions in both offices has already
been abandoned. To repeat, the creation of a temporary vacancy
in the office of the Governor creates a corresponding vacancy in
the office of the Vice-Governor whenever the latter acts as
Governor by virtue of such temporary vacancy. This event
constitutes an inability on the part of the regular presiding
officer (Vice-Governor) to preside during the SP sessions,
which thus calls for the operation of the remedy set in Article
49(b) of the Local Government Code concerning the election
of a temporary presiding officer. The continuity of the Acting
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])
415.

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])
417.

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.

Distinguish an ordinance from a mere resolution.

418.

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])
416.

May local elective officials practice their profession

or engage in any occupation?

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

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])
419.

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
160

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.

(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.
423.

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])
420.

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 nonobservance 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])
421.

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)
422.

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.

Section 74 of the Local Government Code provides

that no recall shall take place within one year x x
x immediately preceding a regular local election.
What does the term regular local election, as
used in this section, mean?

Held: The term regular local election under Sec. 74

of the Local Government Code of 1991 which provides that no
recall shall take place within one (1) year x x x immediately
preceding a regular local election refers to one where the
position of the official sought to be recalled is to be actually
contested and filled by the electorate (Paras v. Comelec, G.R.
No. 123169, Nov. 4, 1996). The one-year time bar will not
apply where the local official sought to be recalled is a Mayor
and the approaching election is a barangay election. (Angobung
v. COMELEC, G.R. No. 126576, March 5, 1997)
424.

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])
425.

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?
161

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])
426.

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]
427.

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, 3 rd Div.
[Vitug])

G. PUBLIC INTERNATIONAL LAW

428.

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])
429.

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 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, 1 st Div. [Motion for
Reconsideration])
162

430.

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])
431.

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)
432.

Is sovereignty really absolute and allencompassing? If no, what are its restrictions and
limitations?

Held:
While sovereignty has traditionally been
deemed absolute and all-encompassing on the domestic level, it
is however subject to restrictions and limitations voluntarily
agreed to by the Philippines, expressly or impliedly, as a
member of the family of nations.
By the doctrine of
incorporation, the country is bound by generally accepted
principles of international law, which are considered to be
automatically part of our own laws. One of the oldest and most
fundamental rules in international law is pacta sunt servanda
international agreements must be performed in good faith. A
state which has contracted valid international obligations is
bound to make in its legislations such modifications as may be
necessary to ensure the fulfillment of the obligations.
By their inherent nature, treaties really limit or restrict
the absoluteness of sovereignty. By their voluntary act, nations
may surrender some aspects of their state power in exchange for
greater benefits granted by or derived from a convention or pact.
After all, states, like individuals, live with coequals, and in
pursuit of mutually covenanted objectives and benefits, they
also commonly agree to limit the exercise of their otherwise
absolute rights. Thus, treaties have been used to record
agreements between States concerning such widely diverse
matters as, for example, the lease of naval bases, the sale or
cession of territory, the termination of war, the regulation of
conduct of hostilities, the formation of alliances, the regulation
of commercial relations, the settling of claims, the laying down
of rules governing conduct in peace and the establishment of
international organizations. The sovereignty of a state therefore
cannot in fact and in reality be considered absolute. Certain
restrictions enter into the picture: (1) limitations imposed by the
163

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])
433.

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 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.

435.

Discuss the legal consequences that follow

recognition of belligerency.

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.

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 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.

The legitimate government, once it recognizes the

rebels as belligerents, is bound to observe the laws and customs
of war in conducting the hostilities;

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, 533534, Dec. 1, 1994, En Banc [Quiason])
434.

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:

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;
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)
436.

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 selfdefense 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)
437.

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)
164

438.

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)
439.

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)
440.

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)
441.

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;
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 of comparable gravity;
Persecution against any identifiable group or
collectivity on political, racial, national, ethnic,
cultural, religious, gender as defined in paragraph
3, or other grounds that are universally recognized
as impermissible under international law, in
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 or physical health.
2. For the purpose of paragraph 1:
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
165

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)
442.

What are International Organizations?

their nature.

Discuss

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)
443.

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)
444.

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) nonsuability can be determined by the trial court without going to
trial in light of the pleadings x x x. Besides, the privilege of
sovereign immunity in this case was sufficiently established by
the Memorandum and Certification of the Department of
Foreign Affairs. As the department tasked with the conduct of
the Philippines foreign relations, the Department of Foreign
Affairs has formally intervened in this case and officially
certified that the Embassy of the Holy See is a duly accredited
diplomatic mission to the Republic of the Philippines exempt
from local jurisdiction and entitled to all the rights, privileges
and immunities of a diplomatic mission or embassy in this
country. The determination of the executive arm of government
that a state or instrumentality is entitled to sovereign or
diplomatic immunity is a political question that is conclusive
upon the courts. Where the plea of immunity is recognized and
affirmed by the executive branch, it is the duty of the courts to
accept this claim so as not to embarrass the executive arm of the
government in conducting the 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])
445.

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, 1 st Div. [YnaresSantiago])
446.

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
166

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)
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, 1st Div. [Motion for Reconsideration])
447.

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])
448.

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, 1st Div. [Motion for Reconsideration])
449.

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.

167

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 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])
450.

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
168

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 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, 1 st Div. [Motion for
Reconsideration])
451.

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])
452.

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
169

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, 1 st Div.
[Motion for Reconsideration])
453.

Discuss the extent of the international officials

immunity for official acts.

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])
454.

455.

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])
456.

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])

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.

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])
457.

May the Holy See be sued for selling the land it

acquired by donation from the Archdiocese of
Manila to be made site of its mission or the
Apostolic Nunciature in the Philippines but which
purpose cannot be accomplished as the land was
occupied by squatters who refused to vacate the
area?

Held: In the case at bench, if petitioner (Holy See) has

bought and sold lands in the ordinary course of a real estate
business, surely the said transaction can be categorized as an act
jure gestionis.
However, petitioner has denied that the
acquisition and subsequent disposal of Lot 5-A were made for
170

profit but claimed that it acquired said property for the site of its
mission or the Apostolic Nunciature in the Philippines. x x x

Court allowed the said Department to file its memorandum in

support of petitioners claim of sovereign immunity.

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 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])

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])
458.

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

459.

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)
460.

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 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)
461.

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:

171

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 fullblown 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])
462.

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])
463.

Discuss the rules

extradition treaties.

in

the

interpretation

of

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])
464.

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.
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;
172

in extradition which is sui generis in a class by itself they

are not.

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.

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])
465.

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

3. By nature then, extradition proceedings are not

equivalent to a criminal case in which guilt or innocence is
determined. Consequently, an extradition case is not one in
which the constitutional rights of the accused are necessarily
available. It is more akin, if at all, to a 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
173

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])
466.

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])
467.

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])
468.

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, mostfavored-nation rights, patent rights, trademark and
copyright
protection,
postal
and
navigation
arrangements and the settlement of claims.
The
validity of these has never been seriously questioned by
our courts."
(BAYAN [Bagong Alyansang Makabayan] v. Executive
Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000,
En Banc [Buena])
469.

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])
470.

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, 5th Edition, 1992, pp. 141-142)
2. The purpose of a most favored nation clause is to
grant to the contracting party treatment not less favorable than
that which has been or may be granted to the "most favored"
among other countries. The most favored nation clause is
intended to establish the principle of equality of international
treatment by providing that the citizens or subjects of the
contracting nations may enjoy the privileges accorded by either
party to those of the most favored nation (Commissioner of
Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA
87, 107-108, June 25, 1999, 3rd Div. [Gonzaga-Reyes])
471.

What are the two types of most-favored nation

clause?

Held: There are generally two types of most-favorednation 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)
472.

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 nonresident 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
174

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.
473.

Discuss the nature of ratification in the treatymaking 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])

readily plead the Constitution as a convenient excuse for noncompliance 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])
476.

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])
477.

474.

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 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])
475.

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

Explain the pacta sunt servanda rule.

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)
478.

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)
479.

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
175

circumstances he appears to be in fact most closely

connected. (Frivaldo v. COMELEC, 174 SCRA 245,
June 23, 1989)

176