200.

What are some of the recognized restrictions to the right of the people to information on matters of public concern?
Held: 1) National security matters and intelligence information. This jurisdiction recognizes the common law holding that there is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters. Likewise, information on intergovernment exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest; 2) Trade or industrial secrets (pursuant to the Intellectual Property Code [R.A. No. 8293, approved on June 6, 1997] and other related laws) and banking transactions (pursuant to the Secrecy of Bank Deposits Act [R.A. No. 1405, as amended]); 3) Criminal matters, such as those relating to the apprehension, the prosecution and the detention of criminals, which courts may not inquire into prior to such arrest, detention and prosecution; 4) Other confidential information. The Ethical Standards Act (R.A. No. 6713, enacted on February 20, 1989) further prohibits public officials and employees from using or divulging “confidential or classified information officially known to them by reason of their office and not made available to the public.” (Sec. 7[c], ibid.) Other acknowledged limitations to information access include diplomatic correspondence, closed door Cabinet meetings and executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court.

(Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998 [Panganiban]) 201.

Is the alleged ill-gotten wealth of the Marcoses a matter of public concern subject to this right?

Held: With such pronouncements of our government, whose authority emanates from the people, there is no doubt that the recovery of the Marcoses' alleged ill-gotten wealth is a matter of public concern and imbued with public interest. We may also add that “ill-gotten wealth” refers to assets and properties purportedly acquired, directly or indirectly, by former President Marcos, his immediate family, relatives and close associates through or as a result of their improper or illegal use of government funds or properties; or their having taken undue advantage of their public office; or their use of powers, influences or relationships, “resulting in their unjust enrichment and causing grave damage and prejudice to the Filipino people and the Republic of the Philippines.” Clearly, the assets and properties referred to supposedly originated from the government itself. To all intents and purposes, therefore, they belong to the people. As such, upon reconveyance they will be returned to the public treasury, subject only to the satisfaction of positive claims of certain persons as may be adjudged by competent courts. Another declared overriding consideration for the expeditious recovery of ill-gotten wealth is that it may be used for national economic recovery. We believe the foregoing disquisition settles the question of whether petitioner has a right to respondents' disclosure of any agreement that may be arrived at concerning the Marcoses’ purported illgotten wealth. (Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998 [Panganiban])

Freedom of Association

202.
Held:

Does the right of civil servants to organize include their right to strike? Clarify.
Specifically, the right of civil servants to organize themselves was positively recognized in

Association of Court of Appeals Employees (ACAE) v. Ferrer-Calleja (203 SCRA 596, November 15, 1991).
But, as in the exercise of the rights of free expression and of assembly, there are standards for allowable limitations such as the legitimacy of the purposes of the association, the overriding considerations of national security and the preservation of democratic institutions (People v. Ferrer, 48 SCRA 382,

December 27, 1972, per Castro, J., where the Court, while upholding the validity of the Anti-Subversion Act which outlawed the Communist Party of the Philippines and other "subversive" organizations, clarified, "Whatever interest in freedom of speech and freedom of association is infringed by the prohibition against knowing membership in the Communist Party of the Philippines, is so indirect and so insubstantial as to be clearly and heavily outweighed by the overriding considerations of national security and the preservation of democratic institutions in this country." It cautioned, though, that "the need for prudence and circumspection [cannot be overemphasized] in [the law's] enforcement, operating as it does in the sensitive area of freedom of expression and belief.")
As regards the right to strike, the Constitution itself qualifies its exercise with the proviso "in accordance with law." This is a clear manifestation that the state may, by law, regulate the use of this right, or even deny certain sectors such right. Executive Order No. 180 (Issued by former President Corazon C. Aquino on June 1, 1987) which provides guidelines for the exercise of the right of government workers to organize, for instance, implicitly endorsed an earlier CSC circular which "enjoins under pain of administrative sanctions, all government officers and employees from staging strikes, demonstrations, mass leaves, walkouts and other forms of mass action which will result in temporary stoppage or disruption of public service" (CSC Memorandum Circular No. 6, s. 1987, dated April 21, 1987) by stating that the Civil Service law and rules governing concerted activities and strikes in the government service shall be observed. It is also settled in jurisprudence that, in general, workers in the public sector do not enjoy the right to strike. Alliance of Concerned Government Workers v. Minister of Labor and Employment (124 SCRA 1, August 3, 1983, also per Gutierrez, Jr., J.) rationalized the proscription thus: "The general rule in the past and up to the present is that the 'terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof are governed by law.' X x x. Since the terms and conditions of government employment are fixed by law, government workers cannot use the same weapons employed by the workers in the private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion by law. Relations between private employers and their employees rest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled through the process of collective bargaining. In government employment, however, it is the legislature and, where properly given delegated power, the administrative heads of government which fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through collective bargaining agreements." (Ibid., p. 13) After delving into the intent of the framers of the Constitution, the Court affirmed the above rule in Social Security System Employees Association (SSSEA) v. Court of Appeals (175 SCRA 686, July 28, 1989) and explained: "Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor-Management Council for appropriate action. But employees in the civil service may not resort to strikes, walkouts and other temporary work stoppages, like workers in the private sector, to pressure the Government to accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Government Employees to SelfOrganization, which took effect after the instant dispute arose, '[t]he terms and conditions of employment in the government, including any political subdivision or instrumentality thereof and government-owned and controlled corporations with original charters are governed by law and employees therein shall not strike for the purpose of securing changes [thereto].'' (Ibid., p. 698)

(Jacinto v. Court of Appeals, 281 SCRA 657, Nov. 14, 1997, En Banc [Panganiban]) 203. Petitioners public school teachers walked out of their classes and engaged in mass actions during certain dates in September 1990 protesting the alleged unlawful withholding of their salaries and other economic benefits. They also raised national issues, such as the removal of US bases and the repudiation of foreign debts, in their mass actions. They refused to return to work despite orders to do so and subsequently were found guilty of conduct prejudicial to the best interests of the service for having absented themselves without proper authority, from their schools during regular school days, and penalized. They denied that they engaged in “strike” but claimed that they merely exercised a constitutionally guaranteed right – the right to peaceably assemble and petition the government for redress of grievances - and, therefore, should not have been penalized. Should their contention be upheld?
Held: Petitioners, who are public schoolteachers and thus government employees, do not seek to establish that they have a right to strike. Rather, they tenaciously insist that their absences during certain dates in September 1990 were a valid exercise of their constitutional right to engage in peaceful assembly to petition the government for a redress of grievances. They claim that their gathering was not a strike, therefore, their participation therein did not constitute any offense. MPSTA v. Laguio (Supra, per Narvasa, J., now CJ.) and ACT v. Carino (Ibid.), in which this Court declared that "these 'mass actions' were to all intents and purposes a strike; they constituted a concerted and unauthorized stoppage of, or absence from, work which it was the teachers' duty to perform, undertaken for essentially economic reasons," should not principally resolve the present case, as the underlying facts are allegedly not identical.

Strike, as defined by law, means any temporary stoppage of work done by the concerted action of employees as a result of an industrial or labor dispute. A labor dispute includes any controversy or
matter concerning terms and conditions of employment; or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employers and employees. With these premises, we now evaluate the circumstances of the instant petition.

It cannot be denied that the mass action or assembly staged by the petitioners resulted in the 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 (In justifying

their mass actions, petitioners liken their activity to the pro-bases rally led by former President Corazon C. Aquino on September 10, 1991, participated in, as well, by public school teachers who consequently absented themselves from their classes. No administrative charges were allegedly instituted against any of the participants.), they also raised national issues such as the removal of the U.S. bases and the repudiation of foreign debt. In Balingasan v. Court of Appeals (G.R. No. 124678, July 31, 1997, per Regalado, J.), however, this Court said that the fact that the conventional term "strike" was not used by
the participants to describe their common course of action was insignificant, since the substance of the situation, and not its appearance, was deemed controlling.

Moreover, the petitioners here x x x were not penalized for the exercise of their right to assemble peacefully and to petition the government for a redress of grievances. Rather, the Civil Service Commission found them guilty of conduct prejudicial to the best interest of the service for having absented themselves without proper authority, from their schools during regular school days, in order to participate in the mass protest, their absence ineluctably resulting in the non-holding of classes and in the deprivation of students of education, for which they were responsible. Had petitioners availed themselves of their free time - recess, after classes, weekends or holidays - to dramatize their grievances and to dialogue with the proper authorities within the bounds of law, no one - not the DECS, the CSC or

be made answerable. The relations between capital and labor are not merely contractual. even though contracts may thereby be affected. The challenged resolution and memorandum circular being valid implementations of E. 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. rules and regulations. Nov. working conditions. the freedom to contract is not absolute. or general welfare of the community. 243 SCRA 666. safety. comfort. wages. As it was. 1995 [Davide. It does not prevent a proper exercise by the State of its police power by enacting regulations reasonably necessary to secure the health. collective bargaining. En Banc [Panganiban]) The Non-Impairment Clause 204. which was enacted under the police power of the State. The constitutional prohibition against impairing contractual obligations is not absolute and is not to be read with literal exactness. they cannot be struck down on the ground that they violate the contract clause. 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. CA. hours of labor and similar subjects. Inc. v. (The Conference of Maritime Manning Agencies. because private respondents have voluntarily executed quitclaims and releases and received their separation pay. The Article on Social Justice was aptly described as the "heart of the new Charter" by the President of the 1986 Constitutional Commission. such contracts are subject to the special laws on labor unions. 1997. or as the circumstances may change. X x x. The executive order creating the POEA was enacted to further implement the social justice provisions of the 1973 Constitution. Their act by their nature was enjoined by the Civil Service law. (Jacinto v. Petitioners claim that the . Therefore.O. or as experience may demonstrate the necessity. Social justice is identified with the broad scope of the police power of the state and requires the extensive use of such power. 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. 14. for such matters cannot be placed by contract beyond the power of the State to regulate and control them. closed shop. They are so impressed with public interest that labor contracts must yield to the common good. morals.]) 2. for which they must. Petitioners pray that the present action should be barred. To hold otherwise is to alter long-established constitutional doctrine and to subordinate the police power to the contract clause. retired Justice Cecilia Munoz Palma. Verily. 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. which have been greatly enhanced and expanded in the 1987 Constitution by placing them under a separate Article (Article XIII). strikes and lockouts. 797 (Creating the POEA).even this Court . therefore. Article 1700 thereof expressly provides: Art. No. 281 SCRA 657. Nor is there merit in the claim that the resolution and memorandum circular violate the contract clause of the Bill of Rights. 1700. Jr.could have held them liable for the valid exercise of their constitutionally guaranteed rights. POEA. the very evil sought to be forestalled by the prohibition against strikes by government workers. the temporary stoppage of classes resulting from their activity necessarily disrupted public services. as the general well-being of the community may require. And under the Civil Code. Is the constitutional prohibition against impairing contractual obligations absolute? Held: 1. April 21. but all such regulations must be subject to change from time to time.

In these cases. except (1) where there is clear proof that the waiver was wangled from an unsuspecting or gullible person. In short. save in cases of renewal. Moreover. the private respondents agreed to the quitclaim and release in consideration of their separation pay. Such quitclaim and release agreements are regarded as ineffective to bar the workers from claiming the full measure of their legal rights. Nevertheless. Factoran. Not all quitclaims are per se invalid or against public policy. fetter the exercise of the taxing power of the State. In the case at bar. but the reservation of essential attributes of sovereign power is also read into contracts as a basic postulate of the legal order. 685-686. promoting their health and enhancing their general welfare. the holder is not entitled to it as a matter of right. En Banc [Mendoza]) 4. Jurisprudence holds that the constitutional guarantee of non-impairment of contract is subject to the police power of the state and to reasonable legislative regulations promoting health. X x x. the non-impairment clause cannot as yet be invoked.. the instant case does not involve a law or even an executive issuance declaring the cancellation or modification of existing timber licenses. the law will step in to annul the questionable transactions. 1994. the non-impairment clause must yield to the police power of the state. (Bogo-Medellin Sugarcane Planters Association. Inc. no contract would have as yet existed in the other instances. Jr. 25. 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. such undertakings cannot be allowed to bar the action for illegal dismissal.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. through the exercise of prophetic discernment. X x x. it is difficult to imagine x x x how the non-impairment clause could apply with respect to the prayer to enjoin the respondent Secretary from receiving. 224 SCRA 792 [1993]) . X x x. 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. 296 SCRA 108. 124. safety and welfare. Aug. or (2) where the terms of settlement are unconscionable on their face. And since there was thus no extra consideration for the private respondents to give up their employment. For not only are existing laws read into contracts in order to fix obligations as between parties." The Court disagrees. the non-impairment clause x x x cannot be invoked. accepting. Secretary of Finance. [Panganiban]) 3. 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. 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. the same cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose. processing. with respect to renewal." It is enough to say that the parties to a contract cannot. 235 SCRA 630. NLRC. Finally. v. Hence. In truth. Since they were dismissed allegedly for business losses. (Tolentino v. Since timber licenses are not contracts. even if it is to be assumed that the same are contracts. renewing or approving new timber license for. morals. they are entitled to separation pay under Article 283 of the Labor Code. granting further that a law has actually been passed mandating cancellations or modifications. (Oposa v.

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. En Banc [Purisima]) The In-Custodial Investigation Rights of an Accused Person 205. State the procedure. detaining.with his lawyer (either retained or appointed). 295 SCRA 366. or be visited by/confer with duly accredited national or international non-government organization. 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. as guardian of the rights of the people lays down the procedure. Sept. 6) The person arrested must be informed that. 1998. guidelines and duties which the arresting. considering the heavy penalty of death and in order to ensure that the evidence against an accused were obtained through lawful means. he has the right to communicate or confer by the most expedient means . (Blaquera v. and Investigating Officers and Providing Penalties for Violations Thereof). 5) That whether or not the person arrested has a lawyer. or may be appointed by the court upon petition of the person arrested or one acting on his behalf. Every other warnings. knowingly and intelligently and ensure that he understood the same. Alcala. 446. if any. radio. he must be warned that the waiver is void even if he insist on his waiver and chooses to speak. guidelines and duties which the arresting. 8) In addition. Besides. 4) He must be informed that if he has no lawyer or cannot afford the services of a lawyer. Detaining. 3) He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer. 7438 (An Act Defining Certain Rights of Person Arrested. The acts involved in this case are governmental.telephone. one will be provided for him. distinction must be made between its sovereign and proprietary acts. jurisprudence and Republic Act No. Anent petitioners' contention that the forcible refund of incentive benefits is an unconstitutional impairment of a contractual obligation. 11. at any time. 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.5. 7) He must be informed that he has the right to waive any of said rights provided it is made voluntarily. if the person arrested waives his right to a lawyer. or any medical doctor. suffice it to state that "[n]ot all contracts entered into by the government will operate as a waiver of its non-suability. otherwise. Detained or Under Custodial Investigation as well as the Duties of the Arresting. preferably of his own choice. It is high-time to educate our law-enforcement agencies who neglect either by ignorance or indifference the so-called Miranda rights which had become insufficient and which the Court must update in the light of new legal developments: 1) The person arrested. Held: Lastly. any member of his immediate family. 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. and that a lawyer may also be engaged by any person in his behalf. 2) He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him. the Court. detained. he must be informed that it must be done in writing and in the presence of counsel. 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. 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 . detaining. priest or minister chosen by him or by any one from his immediate family or by his counsel. letter or messenger . It shall be the responsibility of the officer to ensure that this is accomplished. inviting. inviting. information or communication must be in a language known to and understood by said person.

whatever testimonials are given as proof of their probity and supposed independence. Feb. If the lawyer were one furnished in the accused’s behalf. under prevailing jurisprudence. the relationship between lawyers and law enforcement authorities can be symbiotic. . 637) as follows: “x x x [T]he lawyer called to be present during such investigation should be as far as reasonably possible. this Court stressed that an accused’s right to be informed of the right to remain silent and to counsel ‘contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. Explain the kind of information that is required to be given by law enforcement officers to suspect during custodial investigation. in whole or in part. 302 SCRA 455. intelligence. whether inculpatory or exculpatory. peremptory and meaningless recital of the individual’s rights. 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. the police may not interrogate him if the same had not yet commenced. who. as distinguished from one who would merely be giving a routine. or the interrogation must cease if it has already begun. 1st Div. that he is willing to fully safeguard the constitutional rights of the accused. 1. must be a lawyer. Article III of the 1987 Constitution. Basay (219 SCRA 404. regardless of whether he may have answered some questions or volunteered some statements. chooses to waive his right to counsel. 11) He must also be informed that any statement or evidence. upon proper petition of the accused or person authorized by the accused to file such petition. such waiver. the former must also explain the effects of such provision in practical terms – e. therefore. a lawyer engaged for an individual facing custodial investigation (if the latter could not afford one) ‘should be engaged by the accused (himself). and other relevant personal circumstances of the person undergoing investigation. are generally suspect. (People v. it is not enough that the subject is informed of such right. Held: [I]t is settled that one’s right to be informed of the right to remain silent and to counsel contemplates the transmission of meaningful information rather just the ceremonial and perfunctory recitation of an abstract constitutional principle. Canoy. obtained in violation of any of the foregoing.e. must still be made with the assistance of counsel. En Banc [Per Curiam]) 206. 328 SCRA 385. In People v.’ Lawyers engaged by the police. If he decides not to retain a counsel of his choice or avail of one to be provided for him and. the right to counsel or any of his rights does not bar him from invoking it at any time during the process. what the person under investigation may or may not do – and in a language the subject fairly understands. the degree of explanation required will necessarily vary and depend on the education. or by the latter’s relative or person authorized by him to engage an attorney or by the court.indication.. March 17. shall be admissible in evidence. the choice of the individual undergoing questioning. to be valid and effective. it is important that he should be competent and independent. Deniega (251 SCRA 626.’ “Ideally therefore. Mahinay.g. (People v. and contemplates effective communication which results in the subject’s understanding of what is conveyed. CJ]) 207. Since it is comprehension that is sought to be attained. It is not enough for the interrogator to merely repeat to the person under investigation the provisions of Section 12. 418). as in many areas. [Davide. 10) The person arrested must be informed that his initial waiver of his right to remain silent. 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. 2000. The right to be informed carries with it a correlative obligation on the part of the police investigator to explain. In further ensuring the right to counsel. i. 1999.. as the case may be.

In fact. 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 fact. 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. . the assistance of a PAO lawyer satisfies the constitutional requirement of a competent and independent counsel for the accused. counseling or advising caution reasonably at every turn of the investigation. considering that the Mayor has “operational supervision and control” over the local police and may arguably be deemed a law enforcement officer? Held: While it is true that a municipal mayor has “operational supervision and control” over the local police and may arguably be deemed a law enforcement officer for purposes of applying Section 12(1) and (3) of Article III of the Constitution. not by the police or any other investigating officer. 306 SCRA 522. People v. Thus. 1999. Bandula. 1997. choose to remain silent or terminate the interview. it has been held that the constitutional procedures on custodial investigation do not apply to a spontaneous statement. not to prevent him from freely and voluntarily telling the truth. March 3. 1999. admissible in evidence. 115 SCRA 743. 269 SCRA 95. under custody. Bacor. (People v. Espiritu. it was held that appellant’s confessions to the news reporters were given free from any undue influence from the police authorities.“x x x The competent or independent lawyer so engaged should be present from the beginning to end. where the accused. but given in an ordinary manner whereby appellant orally admitted having committed the crime. (People v. Article III. they asked his permission before interviewing him. gave spontaneous answers to a televised interview by several press reporters in the office of the chief of the CIS. April 30. 1987 Constitution? Held: In People v. appellant’s confession to the mayor was not made in response to any interrogation by the latter. March 3. and stopping the interrogation once in a while either to give advice to the accused that he may either continue. Andan. counsel of the police. 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. 752 [1982]. The news reporters acted as news reporters when they interviewed appellant. Thus.. therefore. The mayor did not know that appellant was going to confess his guilt to him. the mayor did not question the appellant at all. They did not force appellant to grant them an interview and reenact the commission of the crime. Are confessions made in response to questions by news reporters admissible in evidence? Answer: Yes. i. Oracoy. Feb. 269 SCRA 95.e. 232 SCRA 566 [1994]. The Supreme Court further ruled that appellant’s verbal confessions to the newsmen are not covered by Section 12(1) and (3) of Article III of the Constitution and. [Panganiban]) 208. 224 SCRA 759 [1993]. It was appellant himself who spontaneously. In People v. No police authority ordered appellant to talk to the mayor. Is the confession of an accused given spontaneously. 3rd Div. 2nd Div. public or private prosecutor. 302 SCRA 533. 1997) 210. [Mendoza]) 209. In People v. freely and voluntarily sought the mayor for a private meeting. are admissible. Vizcarra. his uncounselled confession to him did not violate his constitutional rights. at all stages of the interview. They were not acting under the direction and control of the police. Can a PAO lawyer be considered an independent counsel within the contemplation of Section 12. or a municipal attorney whose interest is admittedly adverse to that of the accused-appellant. Confessions made in response to questions by news reporters. 2. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. When appellant talked with the mayor as a confidant and not as a law enforcement officer.” (People v. not elicited through questioning by the authorities. Andan. freely and voluntarily to the Mayor admissible in evidence. however.

violence. . He did not seek medical treatment nor even a physical examination. It requires persistence and determination in separating polluted confessions from untainted ones. it is prudent that trial courts are reminded that extreme caution must be taken in further admitting similar confessions. in all likelihood. 2nd Div. may attempt to legitimize coerced extrajudicial confessions and place them beyond the exclusionary rule by having an accused admit an offense on television. Article III of the 1987 Constitution. openly and publicly in the presence of newsmen. His allegation that the fact that he was made to sign the confession five times is proof that he refused to sign it. 353 SCRA 307. because of the inherent danger in the use of television as a medium for admitting one’s guilt. 115 SCRA 743. (People v. intimidation. Held: Apropos the court a quo’s admission of accused-appellant’s videotaped confession. A word of caution then to lower courts: we should never presume that all media confessions described as voluntary have been freely given. 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. Endino. others omitted). and the recurrence of this phenomenon in several cases (People v. L38859. Besides. 2001. We have a sworn duty to be vigilant and protective of the rights guaranteed by the Constitution. [Bellosillo]) 212. Detection of coerced confessions is admittedly a difficult and arduous task for the courts to make. 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.211. Indeed. For in all probability. would have been sympathetic with him. 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. threat. Illustrate how the Court should appreciate said involuntary or coerced confessions. This type of confession always remains suspect and therefore should be thoroughly examined and scrutinized. Vizcarra. the police. Discuss why lower court’s should act with extreme caution in admitting in evidence accused’s videotaped media confessions. Xxx We discern no sign that the confession was involuntarily executed from the fact that it was signed by accused-appellant five times. Feb. which are the subject of paragraph 1 of the same Section 12. the line between proper and invalid police techniques and conduct is a difficult one to draw. 30 July 1982. X x x X x x However. force. which are dealt with in paragraph 2 of Section 12. we find such admission proper. 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. Such a situation would be detrimental to the guaranteed rights of the accused and thus imperil our criminal justice system. No. he could have easily sought succor from the newsmen who. and (2) those which are given without the benefit of Miranda warnings. if he had indeed been forced into confessing. Aside from this bare assertion. 20. he has shown no proof of the use of force and violence on him. Accused-appellant claims that his confession was obtained by force and threat. with the connivance of unscrupulous media practitioners. The interview was recorded on video and it showed accused-appellant unburdening his guilt willingly. Discuss the two kinds of involuntary or coerced confessions under Section 12.

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. under the first paragraph of this provision. 2000.Xxx Extrajudicial confessions are presumed voluntary. and. such as it is called in the United States from which Article III. Now. accused-appellant was assisted by Atty. Section 12(1) requires that counsel assisting suspects in custodial interrogations be competent and independent. 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. In this case. in several decisions of this Court. an uncounseled statement. reflecting spontaneity and coherence which cannot be said of a mind on which violence and torture have been applied. as PC Captain and Station Commander of the WPD. Especially in this case. public or private prosecutor. has been found to be merely ceremonial and inadequate to transmit meaningful information to the suspect. if so. 2nd Div. (People v. To allow such a happenstance would render illusory the protection given to the suspect during custodial investigation. Obrero. Atty. Moreover. 332 SCRA 190. This kind of giving of warnings. the independent counsel required by Article III. But what renders the confession of accused-appellant inadmissible is the fact that accused-appellant was not given the Miranda warnings effectively. and that if he is indigent. municipal attorney. This is error. 220 – 208. though presumably competent. was part of the police force who could not be expected to have effectively and scrupulously assisted accused-appellant in the investigation. the confession is admissible against the declarant. the suspect really needs the guiding hand of counsel. De los Reyes. in the absence of conclusive evidence showing the declarant’s consent in executing the same has been vitiated. or counsel of the police whose interest is admittedly adverse to the accused. X x x. (2) he must be warned that anything he says can and will be used against him. the confession contains details that only the perpetrator of the crime could have given. who. Bandula (232 SCRA 566 [1994]). [Mendoza]) 213. May 17. such confession will be sustained. X x x Moreover. De los Reyes. a lawyer will be appointed to represent him. Swept into an unfamiliar environment and surrounded by intimidating figures typical of the atmosphere of police interrogation. Article III. is presumed to be psychologically coerced. 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. 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. and (3) he must be told that he has a right to counsel. Section 12(1) cannot be special counsel. Section 12(1) was derived. Here. 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. As observed in People v. whether he had his own counsel or he wanted the police to appoint one for him. 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. 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. Under the Constitution. What are the requirements for an extra-judicial confession of an accused to be admissible in evidence? . 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.

threat or intimidation rests upon the accused. 2) Knowingly based on an effective communication to the individual under custodial investigation of his constitutional rights. 2) made with the assistance of competent and independent counsel. 329 SCRA 158. and 4) in writing. 277 SCRA 19. 347) Xxx xxx xxx Withal. Aug. 3) express. Numerous decisions of this Court rule that for an extrajudicial confession to be admissible. 2000. then. However. 1st Div. the lawyers made available to the detainee would be one appointed by the military and therefore beholden to the military. In jurisprudence. 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. 169-171. inducement or trickery. [Ynares-Santiago]) 214. the confession must inspire credibility or be one which the normal experience of mankind can accept as being within the realm of probability. nay. Once admitted.. 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. obstruct the progress of the interrogation by simply selecting a lawyer who for one reason or . I Bernas. If the rule were otherwise. 1997 [Panganiban]) 2. (People v. it must be: 1) voluntary. freely and deliberately confess that he is the perpetrator of a crime unless prompted by truth and conscience. (People v. The mantle of protection afforded by the above-quoted constitutional provision covers the period from the time a person is taken into custody for the investigation of his possible participation in the commission of a crime or from the time he is singled out as a suspect in the commission of the offense although not yet in custody. The Constitution of the Republic of the Philippines. (Citing I Record of the Constitutional Commission 731-734.Held: 1. the tempo of a custodial investigation will be solely in the hands of the accused who can impede. during the martial law period. When all these requirements are met and the confession is admitted in evidence. 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. without compulsion. Base. no confession can be admitted in evidence unless it is given: 1) Freely and voluntarily. 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. March 30. physical or psychological is forcefully apparent. 11. p. and 3) Intelligently with full appreciation of its importance and comprehension of its consequences. 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. the word “preferably” under Section 12(1). 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. 1987 1st ed. the burden of proof that it was obtained by undue pressure. Fabro.

The counsel. Law enforcement agencies are required to effectively communicate the rights of a person under investigation and to insure that it is fully understood. the very evil the rule stands to avoid. . should never prevent an accused from freely and voluntarily telling the truth.another. The exclusionary rule presumes that the alleged admission was coerced. 169-171. Any measure short of this requirement is considered a denial of such right. Verily. 175 SCRA 47 [1989]). that an admission made to news reporters or to a confidant of the accused is not covered by the exclusionary rule. 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. is not available to protect his interest. 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. 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. This absurd scenario could not have been contemplated by the framers of the charter. 1st Div. 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. Base. It has been held. Layuso. to be an effective counsel “[a] lawyer need not challenge all the questions being propounded to his client. 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. if he voluntarily and intelligently so desires but to protect the accused from admitting what he is coerced to admit although untrue. The admission allegedly made by the appellant is not in the form of a written extra-judicial confession. physical and psychological. The arresting policeman testified that the appellant admitted that he was with the victim on the evening of January 12. 329 SCRA 158. A lawyer provided by the investigators is deemed engaged by the accused where he never raised any objection against the former’s appointment during the course of the investigation and the accused thereafter subscribes to the veracity of his statement before the swearing officer. however. rather. of the suspect to admit responsibility for the crime under investigation. it was adopted in our Constitution to preclude the slightest coercion as would lead the accused to admit something false (People v. It was not intended as a deterrent to the accused from confessing guilt. The exclusionary rule applies. 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. 2000. The arresting policeman admitted that he did not inform the appellant of his constitutional rights to remain silent and to counsel. 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. The presence of a lawyer is not intended to stop an accused from saying anything which might incriminate him but.” (People v. the accused really has the final choice as he may reject the counsel chosen for him and ask for another one. Courts are not allowed to distinguish between preliminary questioning and custodial investigation proper when applying the exclusionary rule. 1994. The policeman’s apparent attempt to circumvent the rule by insisting that the admission was made during an “informal talk” prior to custodial investigation prior is not tenable. the 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. March 30. 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. [Ynares-Santiago]) 215. however.

In resolving the admissibility of and relying on out-of. April 5. En Banc [Per Curiam]) 218. The Court there ruled: “x x x. 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. and (6) the suggestiveness of the identification procedure. courts have adopted the totality of circumstances test where they consider the following factors. En Banc [Gonzaga-Reyes]) 216. 2000.” (Ibid. 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. 29. In People v. x x x. X x x (People v. 318 SCRA 812. Section 2 of the Constitution x x x. 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. courts have fashioned out rules to assure its fairness and its compliance with the requirements of constitutional due process. (People v. 1995). 12. 326 SCRA 660. 2000. mug shots and line-ups. Nov. It has been repeatedly held that custodial investigation commences when a person is taken into custody and is singled out as a suspect in the commission of the crime under investigation and the police officers begin to ask questions on the suspect’s participation therein and which tend to elicit an admission. 22. Timon.. Does the prohibition for custodial investigation conducted without the assistance of counsel extend to a person in a police line-up? Consequently. 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 is also done thru line ups where a witness identifies the suspect from a group of persons lined up for the purpose. 694-695. 2nd Div. Jr. (249 SCRA 54. It is done thru mug shots where photographs are shown to the witness to identify the suspect. (2) the witness’ degree of attention at that time. The alleged admission should be struck down as inadmissible. [Quisumbing]) 217. the Court x x x explained the procedure for out-of-court identification and the test to determine the admissibility of such identification. (3) the accuracy of any prior description given by the witness. Petitioner claims that the taking of his urine sample allegedly violates Article III. 281 SCRA 577. Since corruption of out-of-court identification contaminates the integrity of in court identification during the trial of the case. Pavillare. Bravo. (4) the level of certainty demonstrated by the witness at the identification.Supportive of such presumption is the absence of a written extra-judicial confession to that effect and the appellant’s denial in court of the alleged oral admission. 95) (People v. viz: (1) the witness’ opportunity to view the criminal at the time of the crime. Explain the procedure for out-of-court identification of suspects and the test to determine the admissibility of such identification. Out-of-court identification is conducted by the police in various ways. Feb. Gamer. 1997 [Panganiban]) 2. It listed the following ways of identifying the suspects during custodial investigation: show-up. Teehankee. (5) the length of time between the crime and the identification.court identification of suspects. It is done thru show-ups where the suspect alone is brought face to face with the witness for identification. (People v. Nov. These cited factors must be considered to prevent contamination of the integrity of in-court identifications better. 1999.” x x x are also inadmissible in evidence since his urine sample was derived in effect from an uncounselled extrajudicial confession. 329 SCRA 684. Held: 1. p. October 6. 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. Exhibits “L” and “M.” Should his contentions be upheld? . It has also been held that an uncounseled identification at the police lineup does not preclude the admissibility of an in-court identification.

July 11. In fact. The right to counsel begins from the time a person is taken into custody and placed under investigation for the commission of a crime. discharge the accused upon the approval of the bailbond. in which the accused stands charged with a capital offense. March 17. Judicial discretion is the domain of the judge before whom the petition for provisional liberty will be decided. 4) If the guilt of the accused is not strong. when the investigating officer starts to ask questions to elicit information and/or confession or admissions from the accused. 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. 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. 2000. "Said reasoning is tantamount to ceding to the prosecutor the duty of exercising judicial discretion to determine whether the guilt of the accused is strong. [Panganiban]) 220. 3rd Div. Narciso v. In bail application where the accused is charged with a capital offense. when it may be material. The mandated duty to exercise discretion has never been reposed upon the prosecutor. petition should be denied. However. Otherwise. No. (Gutang v. G.Held: We are not persuaded. 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. Such right is guaranteed by the Constitution and cannot be waived except in writing and in the presence of counsel. i. The absence of objection from the prosecution is never a basis for the grant of bail in such cases. Flor Marie Sta. or his garments or shoes removed or replaced.e. (Joselito V. 1997) enunciated the following duties of the trial judge in such petition for bail: 1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation. what the Constitution prohibits is the use of physical or moral compulsion to extort communication from the accused. 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. or to move his body to enable the foregoing things to be done." Imposed in Baylon v. 2000. Rapatalo (269 SCRA 220. an accused may validly be compelled to be photographed or measured. 1995) was this mandatory duty to conduct a hearing despite the prosecution's refusal to adduce evidence in opposition to the application to grant and fix bail. People.R. 335 SCRA 479. without running afoul of the proscription against testimonial compulsion. [De Leon]) The Right to Bail 219. In fact. March 5. Romana-Cruz. . Sison (243 SCRA 284. 134504. but not an inclusion of his body in evidence. What are the duties of the judge in cases of bail applications where the accused is charged with capital offense? Held: Basco v. 3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution. 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.. April 6. 2nd Div. for the judge has no right to presume that the prosecutor knows what he is doing on account of familiarity with the case.

for the accused to continue his provisional liberty on the same bail bond during the period to appeal. 23. 3rd Div. in its discretion. the trial court apprehended that if petitioner were released on bail he could. (Maguddatu v. 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. consent of the bondsman is necessary. Apart from the fact that they were at large. its absence will invalidate the grant or the denial of the application for bail. and thus even during the period of appeal. 2000. (Joselito V. under the present rule. provides that: Xxx The Court. or otherwise. 134504. until the promulgation of the judgment of the Regional Trial Court. 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. trial can proceed as long as he . [Kapunan]) 223. 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. deprived of liberty. 326 SCRA 362. prevent his early arraignment and thereby delay his trial until the complainants got tired and lost interest in their cases. 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. 2000.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. The trial court correctly denied petitioners’ motion that they be allowed provisional liberty after their conviction.” This amendment. thus. March 17. petitioners had remained at large. Rule 114 of the Rules of Court. Feb. approval of petitioner’s bail bonds should be deferred until he could be arraigned. 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. even if petitioner does not appear. [Panganiban]) 221. 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. by being absent. Hence. G. foreclosed. The purpose of bail is to secure one’s release and it would be incongruous to grant bail to one who is free. 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. as amended by Supreme Court Administrative Circular 12-94. Flor Marie Sta. Obtaining the consent of the bondsman was. Petitioners’ Compliance and Motion x x x came short of an unconditional submission to respondent court’s lawful order and to its jurisdiction. Moreover. irrespective of whether the case was originally filed in or appealed to it.R. Section 5. unless sooner cancelled. After that." Additionally. Court of Appeals. the court's grant or refusal of bail must contain a summary of the evidence for the prosecution. It is axiomatic that for one to be entitled to bail. 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. 1st Div. Romana-Cruz. under their respective bail bonds. No. The summary thereof is considered an aspect of procedural due process for both the prosecution and the defense. it appears that the bondsman x x x filed a motion in the trial court x x x for the cancellation of petitioners’ bail bond for the latter’s failure to renew the same upon its expiration. From the record. he should be in the custody of the law. Narciso v. to ensure his presence at the arraignment.

The purpose of the above-quoted rule is to inform the accused of the nature and cause of the accusation against him. an accused cannot be held liable for more than what he is indicted for. and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. 1(b) the presence of the accused at the arraignment is required. bail should be granted before arraignment. there would then be no need for the arraignment of the accused. To convict an . such as arraignment. 2) To avail himself of his conviction or acquittal for protection against a further prosecution for the same cause. It matters not how conclusive and convincing the evidence of guilt may be. 2000. (Lavides v. For if the information is quashed and the case is dismissed. 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. 2nd Div. otherwise the accused may be precluded from filing a motion to quash. He has a right to be informed of the nature of the offense with which he is charged before he is put on trial. Xxx In the case under scrutiny. Feb. 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. since under Art. but an accused cannot be convicted of any offense. 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. Rule 110 of the Rules of Court x x x. 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. a right guaranteed by no less than the fundamental law of the land (Article III. 324 SCRA 321. Under Rule 114. III. the Court held in Pecho v. Sec. Sec. [Mendoza]) The Right to be Informed of the Nature and Cause of Accusation against the Accused 224. trial in absencia is authorized. his arraignment cannot be held. and 3) To inform the court of the facts alleged.is notified of the date of the hearing and his failure to appear is unjustified. 14(2) of the Constitution. This theory is mistaken. 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 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. Corollary to this. one of the conditions of bail is that “the accused shall appear before the proper court whenever so required by the court or these Rules. On the other hand. Section 14[2]. 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. 2(b) of the Rules on Criminal Procedure. These scenarios certainly undermine the accused’s constitutional right not to be put on trial except upon valid complaint or information sufficient to charge him with a crime and his right to bail. Elaborating on the defendant’s right to be informed.” while under Rule 116. not charged in the Complaint or Information on which he is tried or therein necessarily included. The omission is not merely formal in nature since doctrinally. 1. Sec. 1987 Constitution). so that it may decide whether they are sufficient in law to support a conviction. if one should be had. In the first place x x x in cases where it is authorized. CA. In the second place. People (262 SCRA 518) that the objectives of this right are: 1) To furnish the accused with such a description of the charge against him as will enable him to make the defense.

etc. 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. The American approach is different. (People v. Even if the defendant remains passive.g.. 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. 2001..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. March 10. They have developed different strains of tests to resolve this issue. An incompetent defendant may not realize the moral reprehensibility of his conduct. 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 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. a comprehension which is greatly dependent upon his understanding of what occurs at trial. the adjudication loses its character as a reasoned interaction between an individual and his community and becomes and invective against an insensible object. En Banc [Purisima]) The Right to a Fair Trial 225. 146710-15. 2000. Nos. 333 SCRA 699. it is important that the defendant knows why he is being punished. strong likelihood. and the right to confront opposing witnesses. En Banc [Puno]) 227. as an incompetent defendant who cannot comprehend the proceedings may not appreciate what information is relevant to the proof of his innocence. If the defendant is not a conscious and intelligent participant. as there are certain basic decisions in the course of a criminal proceeding which a defendant is expected to make for himself. June 19. clear and present danger. Moreover. the fairness of the proceedings may be questioned. English courts readily stay and stop criminal trials when the right of an accused to fair trial suffers a threat. He . March 2.e. the accuracy of the proceedings may not be assured. rather than of the public. Fourth. (Estrada v. he is not in a position to exercise many of the rights afforded a defendant in a criminal case. 718-719. the dignity of the proceedings may be disrupted. i. 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. Desierto. Bayya.R. 327 SCRA 771. 2000. En Banc [Puno]) The Right to an Impartial Trial 226. A criminal proceeding is essentially an adversarial proceeding. Thus. (People v. substantial probability of irreparable harm. Estrada. and this has several reasons underlying it. which rights are safeguards for the accuracy of the trial result. For one. the right to effectively consult with counsel. the right to testify in his own behalf. for an incompetent defendant is likely to conduct himself in the courtroom in a manner which may destroy the decorum of the court. US courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. Third. and one of these is his plea. G. Second. e. The British approach the problem with the presumption that publicity will prejudice a jury. his lack of comprehension fundamentally impairs the functioning of the trial process. 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.

not simply that they might be. (287 SCRA 581 at pp.” etc. Appellant has the burden to prove this actual bias and he has not discharged the burden. et al. gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. a responsible press has always been regarded as the handmaiden of effective judicial administration. Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to a litigation. it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. et al. For . Hon. We find no procedural impediment to its early invocation considering the substantial risk to their liberty whole undergoing a preliminary investigation. It is true that the print and broadcast media gave the case at bar pervasive publicity. (249 SCRA 54 [1995]). et al.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..: We expounded further on this doctrine in the subsequent case of Webb v. petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. Raul de Leon. 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. These news form part of our everyday menu of the facts and fictions of life. viz. media coverage of trials of sensational cases cannot be avoided and oftentimes. (247 SCRA 652 [1995]) and its companion cases. Jr. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police. later reiterated in the case of Larranaga v. 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. The mere fact that the trial of appellant was given a day-to-day. 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. 596597 [1998]). Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. We have not installed the jury system whose members are overly protected from publicity lest they lose their impartiality. For one. Court of Appeals. its excessiveness has been aggravated by kinetic developments in the telecommunications industry. especially in the criminal field x x x. we rule that the right of an accused to a fair trial is not incompatible to a free press. responsible reporting enhances an accused’s right to a fair trial for. by the barrage of publicity. Alejandro. In the case at bar. x x x. there must be allegation and proof that the judges have been unduly influenced. 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. Xxx The democratic settings. Then and now. 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. as well pointed out. and judicial processes to extensive public scrutiny and criticism. For another. we laid down the doctrine that: “We cannot sustain appellant’s claim that he was denied the right to impartial trial due to prejudicial publicity. To be sure. At best. “Again. prosecutors. just like all high profile and high stake criminal trials. In Martelino. Teehankee. our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. In People v. v. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality.

which can best be provided by allowing people to observe such process. In guaranteeing freedoms such as those of speech and press. (c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials. hostility. and where their presence historically has been thought to enhance the integrity and quality of what takes place. have been recognized as indispensable to the enjoyment of enumerated rights. 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. the misconduct of participants. share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. 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. 75 S Ct 11. even the principal actors in the case – the NBI. a community reaction of outrage and public protest often follows. criminal trials cannot be completely closed to the press and public. 362 US 610. In addition.sure. To work effectively. Inc. the right of assembly is also relevant. their lawyers and their sympathizers – have participated in this media blitz. United States. in the context of trials. prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. 80 S Ct 1038. or decisions based on secret bias or partiality. not simply that they might be. that the guarantees of speech and press. In the case at bar. 99 L Ed 11. 348 US 11. in Martelino. it is important that society’s criminal process ‘satisfy the appearance of justice. Commentators still bombard the public with views not too many of which are sober and sublime. United States. Indeed. supported by reasons as valid today as in centuries past.. 4 L Ed 2d 989. and assembly. e. press. important aspects of freedom of speech and of the press could be eviscerated. few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. To be sure. v. et al. expressly guaranteed by the First Amendment. and emotion. the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. The possibility of media abuses and their threat to a fair trial notwithstanding. thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury. uncontradicted history. Alejandro. we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. which people have exercised for centuries. not expressly guaranteed. standing alone.. et al.’ Offutt v. 14. we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced. the First Amendment right to receive information and ideas means. A trial courtroom is a public place where the people generally – and representatives of the media – have a right to be present. various fundamental rights. The right to attend criminal trial is implicit in the guarantees of the First Amendment: without the freedom to attend such trials. From this unbroken. the significant community therapeutic value of public trials was recognized: when a shocking crime occurs.g. Thus. Our daily diet of facts and fiction about the case continues unabated even today. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel. Virginia. Cf. by the barrage of publicity. for these are basically unbeknown and beyond knowing. the First Amendment can be read as protecting the right of everyone to attend trials so as give meaning to those explicit guarantees. criminal trials both here and in England had long been presumptively open.’ Be that as it may. it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation’s system of justice.. v. (b) The freedoms of speech. it was wisely held: ‘x x x (a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation’s organic laws were adopted. and thereafter the open processes of justice serve an important prophylactic purpose. Their long experience in criminal investigation is a . providing an outlet for community concern. Moreover. In the seminal case of Richmond Newspapers. Levine v. the respondents.

To guard against the recurrence of this totalitarian method. Discuss the types of immunity statutes. did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity. 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.” Applying the above ruling. (Estrada v. the right against self-incrimination was stripped of its absoluteness. By its grant. April 26. ex gratia. Immunity statutes in varying shapes were enacted which would allow government to compel a witness to testify despite his plea of the right against self-incrimination. a witness is given what has come to be known as transactional or a use-derivativeuse immunity x x x. a witness can no longer be prosecuted for any offense whatsoever arising out of the act or transaction. 231 SCRA 783. It simplistically characterized the grant as a special privilege. Indeed. Which has broader scope of protection? Held: Our immunity statutes are of American origin. 146710-15. Well to note. the cases against the petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the office of the respondent Ombudsman. however. The days of inquisition brought about the most despicable abuses against human rights. 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. They are the transactional immunity and the use-andderivative-use immunity. Indeed. (Mapa. 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. 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. these immunity statutes are not a bonanza from government. En Banc [Puno]) The Right against Self-Incrimination 228. To accommodate the need. Those given the privilege of immunity paid a high price for it – the surrender of their precious right to be silent. Nos. Desierto. In the United States.R. there are two types of statutory immunity granted to a witness. Is the grant of immunity to an accused willing to testify for the government a special privilege and therefore must be strictly construed against the accused? Held: [W]e reject respondent court’s ruling that the grant of section 5 immunity must be strictly construed against the petitioners. came the need to assist government in its task of containing crime for peace and order is a necessary matrix of public welfare. Jr. In taking this posture. Transactional immunity is broader in the scope of its protection. we note. March 2. the right against self-incrimination was ensconced in the fundamental laws of all civilized countries. we hold that there is not enough evidence to warrant this Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman. 1994. 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. 797-798. En Banc [Puno]) 229. 2001. as if it was gifted by the government.factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. it misread the raison d’ etre and the long pedigree of the right against self-incrimination vis-à-vis immunity statutes. v. In contrast. by the grant of use-and-derivative-use immunity. 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. Our hierarchy of values demands that the right against self-incrimination and the right to be silent should . G. At no instance. To insulate these statutes from the virus of unconstitutionality. Not the least of these abuses is the expert use of coerced confessions to send to the guillotine even the guiltless. Over the years. Quite clearly. Sandiganbayan. Petitioner needs to offer more than hostile headlines to discharge his burden of proof.

be accorded greater respect and protection. Laws that tend to erode the force of these preeminent rights must necessarily be given a liberal interpretation in favor of the individual. The government has a right to solve crimes but it must do it, rightly. (Mapa, Jr. v. Sandiganbayan, 231 SCRA 783, 805-

806, April 26, 1994, En Banc [Puno]) 230.

May the right against self-incrimination be validly invoked during inquiry in aid of legislation?

Held: Now to another matter. It has been held that “a congressional committee’s right to inquire is ‘subject to all relevant limitations placed by the Constitution on governmental action,’ including ‘the relevant limitations of the Bill of Rights’.” (Maurice A. Hutcheson v. U.S., 369 US 599) In another case – “x x x the mere semblance of legislative purpose would not justify an inquiry in the face of the Bill of Rights. The critical element is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness. We cannot simply assume, however, that every congressional investigation is justified by a public need that over-balances any private rights affected. To do so would be to abdicate the responsibility placed by the Constitution upon the judiciary to insure that the Congress does not unjustifiably encroach upon an individual’s right to privacy nor abridge his liberty of speech, press, religion or assembly.” (Watkins v. US, 354 USS 178 citing US v.

Rumely, 345 US 41)

One of the basic rights guaranteed by the Constitution to an individual is the right against selfincrimination (Sec. 17, Art. III of the Constitution). This right construed as the right to remain completely silent may be availed of by the accused in a criminal case; but it may be invoked by other witnesses only as questions are asked of them. This distinction is enunciated by the Court in Romeo Chavez v. The Honorable Court of Appeals, et al. (G.R. No. L-29169, August 19, 1968, 24 SCRA 663) thus – “Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any and all questions.” Moreover, this right of the accused is extended to respondents in administrative investigations but only if they partake of the nature of a criminal proceeding or analogous to a criminal proceeding. In Galman v. Pamaran (G.R. Nos. 71208-09, August 30, 1985, 138 SCRA 294), the Court reiterated the doctrine in Cabal v. Kapunan (6 SCRA 1059) to illustrate the right of witnesses to invoke the right against self-incrimination not only in criminal proceedings but also in all other types of suit. It was held that: “We did not therein state that since he is not an accused and the case is not a criminal case, Cabal cannot refuse to take the witness stand and testify, and that he can invoke his right against selfincrimination only when a question which tends to elicit an answer that will incriminate him is propounded to him. Clearly then, it is not the character of the suit involved but the nature of the proceedings that controls. The privilege has consistently been held to extend to all proceedings sanctioned by law and to all cases in which punishment is sought to be visited upon a witness, whether a party or not.”

We do not here modify these doctrines. If we presently rule that petitioners may not be compelled by the respondent Committee to appear, testify and produce evidence before it, it is only because we hold that the questioned inquiry is not in aid of legislation and, if pursued, would be violative of the principle of separation of powers between the legislative and the judicial departments of government, ordained by the Constitution. (Bengzon, Jr. v. Senate Blue Ribbon Committee, 203

SCRA 767, Nov. 20, 1991, En Banc [Padilla])

The Right against Double Jeopardy

231.

Discuss the two kinds of double jeopardy.

Held: Our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of Clause 20, Section 1, Article III of the Constitution ordains that “no person shall be twice put in jeopardy of punishment for the same offense.” The second sentence of said clause provides that “if an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.” Thus, the first 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)

232. What must be proved to substantiate a claim of double jeopardy? When may legal jeopardy attach?
Held: To substantiate a claim of double jeopardy, the following must be proven: (1) A first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; (3) the second jeopardy must be for the same offense, or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or is a frustration thereof. Legal jeopardy attaches only: (1) upon a valid indictment; (b) before a competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused. (Cuison v. CA, 289 SCRA 159, April 15,

1998 [Panganiban])

233. In its decision in a criminal case, the Judge promulgated only the civil aspect of the case, but not the criminal. Will the promulgation of the criminal aspect later constitute double jeopardy?

Held: Petitioner contends that "the promulgation by Judge Ramos on April 4, 1995 of the Respondent Court's decision of June 30, 1991 by reading its dispositive portion has effectively terminated the criminal cases against the petitioner x x x." In other words, petitioner claims that the first jeopardy attached at that point. The Court is not persuaded. As a rule, a criminal prosecution includes a civil action for the recovery of indemnity. Hence, a decision in such case disposes of both the criminal as well as the civil liabilities of an accused. Here, trial court promulgated only the civil aspect of the case, but not the criminal. [T]he promulgation of the CA Decision was not complete. In fact and in truth, the promulgation was not merely incomplete; it was also void. In excess of its jurisdiction, the trial judge rendered a substantially incomplete promulgation on April 4, 1995, and he repeated his mistake in his April 12, 1996 Order. We emphasize that grave abuse of discretion rendered the aforementioned act of the trial court void. Since the criminal cases have not yet been terminated, the first jeopardy has not yet attached. Hence, double jeopardy cannot prosper as a defense. We must stress that Respondent Court's questioned Decision did not modify or amend its July 30, 1991 Decision. It merely ordered the promulgation of the judgment of conviction and the full execution of the penalty it had earlier imposed on petitioner. (Cuison v. CA, 289 SCRA 159, April 15, 1998

[Panganiban])

234. What are the exceptions to the rule that the dismissal of a criminal case resulting in acquittal made with the express consent of the accused or upon his own motion will not place the accused in double jeopardy?
Held: In the cases at bar, the order of dismissal based on a violation of the right to speedy trial was made upon motion by counsel for petitioner before the trial court. It was made at the instance of the accused before the trial court, and with his express consent. Generally, the dismissal of a criminal case resulting in acquittal made with the express consent of the accused or upon his own motion will not place the accused in double jeopardy. However, this rule admits of two exceptions, namely: insufficiency of evidence and denial of the right to speedy trial (People v. Bans, 239 SCRA 48, 55 [1994]). Double jeopardy may attach when the proceedings have been prolonged unreasonably, in violation of the accused’s right to speedy trial (Commission on Elections v. Court of Appeals, 229 SCRA 501, 507 [1994]).

(Almario v. Court of Appeals, 355 SCRA 1, Mar. 22, 2001, 2nd Div. [Quisumbing]

235. If the criminal case was dismissed predicated on the right of the accused to speedy trial, but later the trial court reconsidered its decision and allowed the case to be reinstated as it noted that the delay in the trial was due to circumstances beyond the control of the parties and of the trial court, i.e., the presiding judge was promoted to the Court of Appeals, and his successor as trial judge was not immediately appointed, nor another judge detailed to his sala, is there violation of the accused’s right against double jeopardy?
Held: Here we must inquire whether there was unreasonable delay in the conduct of the trial so that violation of the right to speedy trial of the accused x x x resulted. For it must be recalled that in the application of the constitutional guaranty of the right to speedy disposition of cases, particular regard must also be taken of the facts and circumstances peculiar to each case (Socrates v. Sandiganbayan, 253 SCRA 773, 788 [1996]). Both the trial court and the appellate court noted that after pre-trial of petitioner’s case was terminated x x x continuous trial was set x x x. The scheduled hearings, however, were cancelled when the presiding judge was promoted to the Court of Appeals, and his successor as trial judge was not immediately appointed, nor another judge detailed to his sala.

355 SCRA 1. and no postponements unjustifiably sought.Xxx As observed by respondent appellate court. 2001. 255 SCRA 238. double jeopardy did not attach. [Quisumbing] 236. that these dismissals were predicated on the clear right of the accused to speedy trial. Court of Appeals. Tampal (244 SCRA 202). Hence. 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. 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. and not reasonable doubt. 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. Since civil liability is not extinguished in criminal cases. or the case was dismissed or otherwise terminated without the express consent of the accused – was not met.” Private respondents contend that while the trial court found that petitioner’s guilt had not been proven beyond reasonable doubt. reiterated in People v. 249 [1996]). 2nd Div. (Almario v. if the acquittal is based on reasonable doubt. but also put him in “double jeopardy. He submits that in finding him liable for indemnity and damages. which order the appellate court later sustained. . 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. Thus. private respondents cannot invoke their right against double jeopardy. X x x. X x x There being no oppressive delay in the proceedings. Hence. after a closer analysis of these successive events. despite the reconsideration of said order. this exception to the fifth element of double jeopardy – that the defendant was acquitted or convicted. delay in the trial was due to circumstances beyond the control of the parties and of the trial court. It follows that petitioner cannot invoke the constitutional right against double jeopardy when that order was reconsidered seasonably (People v. That being the case. The trial court’s initial order of dismissal was upon motion of petitioner’s counsel. the trial court set aside its initial order and reinstated the cases against petitioner. the trial court realized that the dates of the hearings were transferred for valid grounds. It must be stressed. Leviste (Ibid. Both the trial court and the Court of Appeals were thus not in error when they allowed reinstatement of the cases against petitioner. hence made with the express consent of petitioner. For as petitioner’s right to speedy trial was not transgressed. there was no reason to support the initial order of dismissal. Leviste. impliedly the trial court acquitted him on reasonable doubt. 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. however. we concur with the conclusion reached by the Court of Appeals that petitioner’s right to speedy trial had not been infringed. Mar. 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. 22.). He argues that the trial court’s finding that he was neither imprudent nor negligent was the basis for his acquittal. Where the right of the accused to speedy trial had not been violated. it did not state in clear and unequivocal terms that petitioner was not recklessly imprudent or negligent. For this reason. As this Court had occasion to rule in People v. the appellate court not only placed his acquittal in suspicion.

Hence. For double jeopardy to exist. What is a bill of attainder? Is P. 138 SCRA 166. P. However. the total lack of court intervention in the finding of guilt and the determination of the actual penalty to be imposed. Obviously. (Manantan v. 129 SCRA 558 [1984]). he is not exempt from civil liability which may be proved by preponderance of evidence only (Manahan. [Quisumbing]) The Right against Ex Post Facto Laws and Bills of Attainder 237. 066 and the jeopardy was terminated by his discharge. The reason for this rule is that the parties are not the same and secondarily. was not precluded from looking into the question of petitioner’s negligence or reckless imprudence. penal or otherwise.Preliminarily. is the most essential. In modifying the lower court’s judgment. 178. Abaroa. the appellate court did not modify the judgment of acquittal.” Although the two actions have different purposes. No. Ferrer (G. Jr. First is an acquittal on the ground that the accused is not the author of the act or omission complained of. CV No. different rules of evidence are applicable. at 1061). Abaroa. the latter cannot again be charged with the same or identical offense (Melo v. 350 SCRA 387. petitioner’s claim that the decision of the appellate court awarding indemnity placed him in double jeopardy is misplaced. Jan. 8 Phil. 29. et al. even though both actions involve the same act or omission (Almeida Chantangco and Lete v. X x x. 066. The records clearly show that no second criminal offense was being imputed to petitioner on appeal. Nos. the imposition of a punishment. for a person who has been found to be not the perpetrator of any act or omission cannot and can never be held liable for such or omission (Almeida. however. Essential to a bill of attainder are a specification of certain individuals or a group of individuals. that what was elevated to the Court of Appeals by private respondents was the civil aspect of Criminal Case No. 181 [1907]. with different effects on the civil liability of the accused. 19240 with a second criminal offense identical to the first offense. Court of Appeals. Note. 2nd Div. Bocar. This is double jeopardy. 766. It does not seek to inflict punishment without a judicial trial. the matters discussed in the civil case are similar to those discussed in the criminal case. In this case. v. the following elements must be established: (1) a first jeopardy must have attached prior to the second. citing Padilla v. People. 2001. Petitioner’s claim of having been placed in double jeopardy is incorrect. therefore. 1866 a bill of attainder? Held: [T]he Court. December 27. This instance closes the door to civil liability.R. Petitioner was not charged anew in CA-G. 768 [1950]). Nowhere . v.R.D. 171 [1985]). 255 SCRA 202. which may be instituted must be based on grounds other than the delict complained of. civil liability ex delicto is out of the question. even if the guilt of the accused has not been satisfactorily established. 1866 does not possess the elements of a bill of attainder.) There being no delict. The judgment of acquittal became immediately final.D. and the civil action. where the civil action for damages is “for the same act or omission. in People v. In the instant case. The second instance is an acquittal based on reasonable doubt on the guilt of the accused. Court of Appeals. and the lack of judicial trial. 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 Court of Appeals in determining whether Article 29 applied. petitioner had once been placed in jeopardy by the filing of Criminal Case No. This is the situation contemplated in Rule 111 of the Rules of Court. other citations omitted. defined a bill of attainder as a legislative act which inflicts punishment on individuals or members of a particular group without a judicial trial. the judgment in the criminal proceeding cannot be read in evidence in the civil action to establish any fact there determined. Court of Appeals. (2) the first jeopardy must have terminated. notwithstanding herein petitioner’s acquittal. 85 Phil. there was no second jeopardy to speak of. if any. This last element. 48 SCRA 382). This is the situation contemplated in Article 29 of the Civil Code. Nor did it order the filing of a second criminal cases against petitioner for the same offense. L-32613-14. Our law recognizes two kinds of acquittal. and (3) the second jeopardy must be for the same offense as the first (People v. 1972. 214 [1996]. supra note 13.

is incorrect. treat of their nature. 20. R. No. On the removal of the intermediate review of facts. 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. i. (Panfilo M. therefore. 8249 is not a penal law. (Misolas v.. Describe the Administrative Code of 1987 Held: The Code is a general law and “incorporates in a unified document the major structural. the retroactive application of R. July 23. 7975 has been diluted by the enactment of R. 128096. Panga. 8249. 7975.in the measure is there a finding of guilt and an imposition of a corresponding punishment. Petitioner’s and intervenors’ contention that their right to a two-tiered appeal which they acquired under R. and the effects of the functions performed by administrative officials on private individuals or parties outside government. 181 SCRA 648. generally. The Executive Secretary. R. At any rate. R.e. No. Administrative Code of 1987) and “embodies changes in administrative structures and procedures designed to serve the people. the organization and functions of the Constitutional Commissions and other constitutional bodies.. No. It has been ruled that adjective statutes may be made applicable to actions pending and unresolved at the time of their passage. Penal laws are those acts of the Legislature which prohibit certain acts and establish penalties for their violations. (Ople v. Not being a penal law. 8249 an ex post facto law? Held: Ex post facto law. one which prescribes rules of procedure by which courts applying laws of all kinds can properly administer justice.D. supervision and discipline. Moreover. the rules on the national government budget. What is an ex post facto law? Is R. 8249 cannot be challenged as unconstitutional. 8249 has preserved the accused’s right to appeal to the Supreme Court to review questions of law. prohibits retrospectivity of penal laws.A. al. En Banc [Cortes]) 238. R. 659-660. Torres. 30. specifying the qualifying circumstances that would aggravate the offense. It does not mete out a penalty and.A. or those that define crimes. Jan. internal organization. functional and procedural principles of governance (Third Whereas Clause. What the decree does is to define the offense and provide for the penalty that may be imposed. and provide for their punishment. its mode of appeal and other procedural matters.A. It is a substantive law on jurisdiction which is not penal in character. the law did not alter the rules of evidence or the mode of trial. The mode of procedure provided for in the statutory right of appeal is not included in the prohibition against ex post facto laws. The Code covers both the internal administration.A.” (Fourth Whereas Clause. the Supreme Court still has the power of review to determine if the presumption of innocence has been convincingly overcome. Administrative Code of 1987) The Code is divided into seven (7) books. 1999 [Martinez]) ADMINISTRATIVE LAW 239. powers and general administration of departments. bureaus and offices under the executive branch. does not come within the prohibition. i.A.A. 8249 pertains only to matters of procedure. has been declared by the Court as not a penal law. but clearly a procedural statute.A.. There is no encroachment on the power of the court to determine after due hearing whether the prosecution has proved beyond reasonable doubt that the offense of illegal possession of firearms has been committed and that the qualifying circumstances attached to it has been established also beyond reasonable doubt as the Constitution and judicial precedents require.A. and being merely an amendatory statute it does not partake the nature of an ex post facto law. 1990. 1606 as regards the Sandiganbayan’s jurisdiction. et.R. as well as guidelines for the exercise by administrative agencies of quasi-legislative and quasi-judicial powers. G. Jan. personnel and recruitment.e. These books contain provisions on the organization.R. Lacson v. 1998 [Puno]) . which amended P. G. 127685.

It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. 1998 [Puno]) 242. whether pertaining to the autonomous regions. the various arms through which political authority is made effective in the Philippines. What is a government instrumentality? instrumentality? What are included in the term government Answer: A government instrumentality refers to any agency of the national government. rules and regulations. 127685. not integrated within the department framework. If the purpose is to obtain special . Torres. What is the Government of the Republic of the Philippines? Answer: The Government of the Republic of the Philippines refers to the corporate governmental entity through which the functions of the government are exercised throughout the Philippines. 292) 245. (Sec. (Section 2[12]. What is a regulatory agency? Answer: A regulatory agency refers to any agency expressly vested with jurisdiction to regulate. Torres. Executive Order No. No. endowed with some if not all corporate powers. 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. vested with special functions or jurisdiction by law.R. the principal powers of which are exercised by a collective body. When is a government-owned or controlled corporation deemed to be performing proprietary function? When is it deemed to be performing governmental function? Held: Government-owned or controlled corporations may perform governmental or proprietary functions or both. Introductory Provisions. July 23. July 23. (Sec. 2[11]. 1998 [Puno]) 241. Introductory Provisions. and vested by law with functions relating to specific constitutional policies or objectives. the provincial. enjoying operational autonomy. Introductory Provisions. usually through a charter. The term includes regulatory agencies.R. such as a commission. 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. including. (Sec. 127685. save as the contrary appears from the context. depending on the purpose for which they have been created. Introductory Provisions. municipal or barangay subdivisions or other forms of local government. administer or adjudicate matters affecting substantial rights and interest of private persons. This term includes state universities and colleges and the monetary authority of the State. What is a chartered institution? Answer: A chartered institution refers to any agency organized or operating under a special charter. 2[1]. Executive Order No. administering special funds. G. Executive Order No. 292) 246. To this end. No.240. 292) 243. board or council. city. chartered institutions and government-owned or controlled corporations. 292) 244. (Ople v. Executive Order No. G. (Ople v. What is administrative power? Held: Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. 2[10]. he can issue administrative orders.

the function is governmental. The administrative powers of the COMELEC include the power to determine the number and location of polling places. the court cannot arrogate unto itself the authority to resolve a controversy. it is deemed quasi-judicial. 11. It has been said that where a power rests in judgment or discretion. peaceful and credible elections. (Villaflor v. appoint election officials and inspectors. In recent years. 133842. If it is in the interest of health. deputize law enforcement agencies and governmental instrumentalities to ensure free. the resolution of this issue calls for the exercise by the COMELEC of its quasi-judicial power. COMELEC.corporate benefits or earn pecuniary profit. It applies “where a claim is originally cognizable in the courts. in such case. 2000 [Puno]) 248. conduct registration of voters. Hence. 1998. honest. Before a party is allowed to seek the intervention of the court. affecting the public in general. experience and services of the administrative tribunal to determine technical and intricate matters of fact. No. Discuss the Doctrine of Primary Jurisdiction (or Prior Resort). accredit citizen's arms of the Commission. Powers classified as “proprietary” are those intended for private advantage and benefit. have been placed within the special competence of an administrative body. CA. Jan. the jurisdiction over which is lodged with an administrative body of special competence. cannot ignore the requirements of procedural due process in resolving the petitions filed by private respondent. G. 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. orderly. 295 SCRA 366. prosecute election offenses. under a regulatory scheme. safety and for the advancement of public good and welfare. Does the petition for annulment of proclamation of a candidate merely involve the exercise by the COMELEC of its administrative power to review. The COMELEC therefore. but does not involve the exercise of functions of a judge. (Federico S. the Commission also has direct control and supervision over all personnel involved in the conduct of election. 425. or is conferred upon an officer other than a judicial officer. acting as quasi-judicial tribunal. En Banc [Purisima]) 247. 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. order or decision. Sandoval v.R. so that it is of judicial nature or character. 280 SCRA 287) 249. and comes into play whenever enforcement of the claim requires the resolution of issues which.” In cases where the doctrine of primary jurisdiction is clearly applicable. Hence. 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. the judicial process is suspended pending referral of such issues to the administrative body for its view. register political parties. revise and reverse the actions of the board of canvassers and. Sept. Discuss the Doctrine of Exhaustion of Administrative Remedies. it is a pre-condition that he should have availed of all the means of administrative processes afforded him. 26. 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. if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every . 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. Alcala. organizations or coalition. justifies non-observance of procedural due process. Held: 1. However. Enumerate exceptions thereto. 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. therefore. the function is proprietary. COMELEC was not merely performing an administrative function. (Blaquera v. In addition.

It only renders the action premature. X x x Xxx With the transfer of Camp Wallace to the BCDA. X x x. i. 8) when it would amount to a nullification of a claim. it is the Bases Conversion and Development Authority. Consequently. 269 SCRA 132) 250. (Paat v. 2) when the issue involved is purely a legal question. 9) when the subject matter is a private land in land case proceeding. This doctrine is disregarded: 1) when there is a violation of due process. CA.e. the same may not be invoked by the government in this case since it is no longer interested in the subject matter. the Republic is not a real party in interest and it may not institute the instant action. the same being applicable only in cases where the government is a party in interest. which stands to be benefited if the land covered by TCT No. 266 SCRA 167 [1997]) 2. When may the Government not validly invoke the rule that prescription does not run against the State? Held: While it is true that prescription does not run against the State. 7) when to require exhaustion of administrative remedies would be unreasonable. 6) when the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter. Republic Act No. The premature invocation of court’s jurisdiction is fatal to one’s cause of action. availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies. While Camp Wallace may have belonged to the government at the time Rafael Galvez’s title was ordered cancelled in Land Registration Case No. N-361. Being the owner of the areas covered by Camp Wallace. for one thing. the government no longer has a right or interest to protect. speedy and adequate remedy. 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. and 11) when there are circumstances indicating the urgency of judicial intervention.. 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.opportunity to decide on a matter that comes within his jurisdiction then such remedy should be exhausted first before the court’s judicial power can be sought. 5) when there is irreparable injury. (Carale v. not the Government. This doctrine of exhaustion of administrative remedies was not without its practical and legal reasons. 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 . T-5710 issued in the name of petitioner is cancelled. absent any finding of waiver or estoppel the case is susceptible of dismissal for lack of cause of action. 7227. Nor may it raise the defense of imprescriptibility. Non-exhaustion of administrative remedies is not jurisdictional. 4) when there is estoppel on the part of the administrative agency concerned. Abarintos. Nonetheless. created the Bases Conversion and Development Authority. otherwise known as the Base Conversion and Development Act of 1992. Accordingly. 3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction. the same no longer holds true today. 10) when the rule does not provide a plain.

We. however. IAC (147 SCRA 276 [1987]) is cited as authority that the Republic is the proper party to sue for the recovery of possession of property which at the time of the installation of the suit was no longer held by the national government body but by the Philippine Ports Authrotiy. 857. In E. to count a few.B. GSIS.B.B. the Court ruled: It can be said that in suing for the recovery of the rentals. However. and yet. but simply a recognition of the need to create a body corporate which will act as its agent for the realization of its program. E. are not government-function corporations invested with governmental attributes. in particular. acted as principal of the Philippine Ports Authority. particularly of Central Luzon and. not supplant. by doing so. although performing functions aimed at promoting public interest and public welfare. do not make the BCDA equivalent to the Government. Marcha is. it should thus be the BCDA which may file an action to cancel petitioner’s title. The rule that . A suit may be dismissed if the plaintiff or the defendant is not a real party in interest. It is consequently asserted that the Republic remains to be the real party in interest and the Conversion Authority merely its agent. a claim which is not available to the BCDA. One having no right or interest to protect cannot invoke the jurisdiction of the court as a party plaintiff in an action (Ralla v. directly exercising the commission it had earlier conferred on the latter as its agent. particularly. must not lose sight of the fact that the BCDA is an entity invested with a personality separate and distinct from the government. Marcha. It may thus be said that the BCDA is not a mere agency of the Government but a corporate body performing proprietary functions. yet it is certain that the functions performed by the BCDA are basically proprietary in nature. In the former. No. The promotion of economic and social development of Central Luzon. 1974. 199 SCRA 495 [1991]). While public benefit and public welfare. 7227). 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.reservations into alternative productive uses and to enhance the benefits to be derived from such property as a measure of promoting the economic and social development. the country’s goal for enhancement (Section 2. in general. The Republic of the Philippines had simply sought to assist. 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. Republic Act No. Ralla. the Republic of the Philippines did not intend to retain the said rentals for its own use. Marcha Transport Co. not on all fours with the case at bar.D. in general.B. E. 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. Xxx Having the capacity to sue or be sued. Such is not the case here since to allow the government to sue herein enables it to raise the issue of imprescriptibility. considering that by its voluntary act it had transferred the land in question to the Philippine Ports Authority effective July 11. once collected by the Republic of the Philippines. not the Republic. 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. and the country’s goal for enhancement. the promotion of the economic and social development of Central Luzon. may be attributable to the operation of the BCDA. the Court has ruled that these entities. however. the SSS. We may presume that. the Republic of the Philippines. X x x. We may expect the that the said rentals. the former being the real party in interest. v. To dismiss the complaint in E. whose title to the disputed property it continues to recognize. shall be turned over by it to the Philippine Ports Authority conformably to the purposes of P. NAWASA and the NIA. Inc. the Philippine Ports Authority.. Other corporations have been created by government to act as its agents for the realization of its programs.

on behalf of government-owned or controlled corporations. the NTC has the sole authority to issue Certificates of Public Convenience and Necessity (CPCN) for the installation. Discuss the nature and functions of the NTC. it even supplants the latter. If only not to do violence and to give some measure of respect to the Torrens System. Express Telecommunication Co. Section 3 of its 1978 Rules of Practice and Procedure. its grantees. petitioner must be afforded some measure of protection. Such power includes the authority to determine the areas of operations of applicants for telecommunications services. [Melo]) 251. telephone and telegraph systems. without . considering that the Board of Communications was the successor-in-interest of the PSC. Marcha. Moreover. Court of Appeals. radio communications systems. Specifically.” (Commonwealth Act No. 1st Div. It assumed the functions formerly assigned to the Board of Communications and the Communications Control Bureau. (Republic v. based on the pleading. together with the affidavits and supporting documents attached thereto. 15. Previously. 241 Pa 469).B. (Shipside Incorporated v. said corporations having been created merely as agents for the realization of government programs. and analyze its powers and authority as well as the laws. issued in April 1987. 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. [Ynares-Santiago]) 252. 146. – Upon the filing of an application. Section 16 of the Public Service Act authorizes the then PSC. otherwise known as the Public Service Act. the Government not only assists the BCDA. Held: The NTC was created pursuant to Executive Order No. on the pretext that the Government is the real party in interest against whom prescription does not run. which provides: Sec. 2001. Is the filing of the administrative rules and regulations with the UP Law Center the operative act that gives the rules force and effect? Held: In granting Bayantel the provisional authority to operate a CMTS. 352 SCRA 334. By raising the claim of imprescriptibility. Section 16[a]) The procedure governing the issuance of such authorizations is set forth in Section 29 of the said Act x x x. In the regulatory communications industry. Under Executive Order No. created under Commonwealth Act No. operation. Jan. the relief prayed for. complaint or petition or at any stage thereafter. 146. or 5 years after the issuance of the original certificate of title. which were both abolished under the said Executive Order. 1979... Inc. a course of action proscribed by said case. 3rd Div. rules and regulations that govern its existence and operations. the NTC applied Rule 15. Provisional Relief. LeHigh Valley Coal Co. promulgated on July 23. the NTC became an attached agency of the Department of Transportation and Communications. 20. 373 SCRA 316. 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.prescription does not run against the State does not apply to corporations or artificial bodies created by the State for special purposes. the Board may grant on motion of the pleader or on its own initiative. upon notice and hearing. the NTC’s function were merely those of the defunct Public Service Commission (PSC). 3. as it did in E. as a third transferee. 2002. it being said that when the title of the Republic has been divested.. It should also be noted that petitioner is unquestionably a buyer in good faith and for value. although artificial bodies of its own creation. as amended. having acquired the property in 1963. 125A. Feb. causes of action which have already prescribed. and maintenance of communications facilities and services. a claim which cannot be raised by the BCDA. are in the same category as ordinary persons (Kingston v. 546.

1986. contends that the NTC should have applied the Revised Rules which were filed with the Office of the National Administrative Register on February 3. This Court.prejudice to a final decision after completion of the hearing which shall be called within thirty (30) days from grant of authority asked for. unless it is otherwise provided. (italics ours) Respondent Extelcom. legally. In a similar case. Book VII. – (1) Every agency shall file with the University of the Philippines Law Center three (3) certified copies of every rule adopted by it. These Revised Rules deleted the phrase “on its own initiative”. the National Library. shall carry out the requirements of this section under pain of disciplinary action. we held: This does not imply. is invalid within the context of Article 2 of Civil Code. Chapter 2. SOCPEC 89-08-01 were filed with. that the subject Administrative Order is a valid exercise of such quasilegislative power. however. in Tanada v. 146 SCRA 446) stated. The fact that the 1993 Revised Rules were filed with the UP Law Center on February 3. Tuvera (G. 1989. other public offices or agencies as the Congress may select. accordingly. does not cure the defect related to the effectivity of the Administrative Order. which reads: “Article 2. (2) The records officer of the agency. X x x” The fact that the amendments to Administrative Order No. L-63915. and to other persons at a price sufficient to cover publication and mailing or distribution costs (Administrative Code of 1987. was not published in the Official Gazette or in a newspaper of general circulation. The National Administrative Register is merely a bulletin of codified rules and it is furnished only to the Office of the President. under which the respondents filed their applications for importations. clearly indicate that the 1993 Revised Rules have not taken effect at the time of the grant of the provisional authority to Bayantel. In answer to this argument. 1993 is of no moment. The original Administrative Order issued on August 30. issued a certification to the effect that inasmuch as the 1993 Revised Rules have not been published in a newspaper of general circulation. Section 7). thus: . the NTC has been applying the 1978 Rules. Congress. coupled with the certification by the Commissioner of the NTC stating that the NTC was still governed by the 1987 Rules. until it is published. Chapter 2. The questioned Administrative Order. Book VII. and published by the UP Law Center in the National Administrative Register. No. all appellate courts. 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). December 29. Section 3 thereof merely states: Filing. the NTC. however. a provisional authority may be issued only upon filing of the proper motion before the Commission. 1993. or his equivalent functionary. 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. The absence of publication. through the Secretary of the Commission. (3) A permanent register of all rules shall be kept by the issuing agency and shall be open to public inspection.R. 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.

directly conferred by the Constitution. The Rules of Practice and Procedure of the NTC. v.. Express Telecommunication Co. 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. [Ynares-Santiago]) 253. regulating only the personnel of the administrative agency and not the public. 263 SCRA 421. April 4. Administrative Rules and Regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation. This is explicit from Executive Order No.e. 2002. which implements Section 29 of the Public Service Act (C. The only exception are interpretative regulations. therefore. No. G. 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. unless it is otherwise provided (E. that is. at present.O. 446-447 [1996]).R. Hence. Secretary of Labor. Thus. Section 1). 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. shall be published as a condition for their effectivity. fall squarely within the scope of these laws.D... Tuvera is clear and categorical. as amended). Inc. 200. since its purpose is to enforce and implement an existing law pursuant to a valid delegation. as explicitly mentioned in the case of Tanada v. P. Angeles. which shall begin fifteen days after publication unless a different effectivity is fixed by the legislature. Tuvera (146 SCRA 446 [1986]). publication in the Official Gazette or a newspaper of general circulation is a condition sine qua non before statutes. 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). 103144. v. Jan. need not be published. including those of local application and private laws. 146. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. 1st Div. which repealed Article 2 of the Civil Code. 15. 373 SCRA 316. 2001. 356 SCRA 174). In the absence of such publication. Xxx We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. (Republic v. 200. 1071.A. Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative power or. in relation to LOI 444 and EO 133 (Philippine International Trading Corp. the 1993 Revised Rules should be published in the Official Gazette or in a newspaper of general circulation before it can take effect. Interpretative regulations and those merely internal in nature.” The Administrative Order under consideration is one of those issuances which should be published for its effectivity. i.“We hold therefore that all statutes. Our pronouncement in Tanada v. it is the 1978 Rules that governs. May a person be held liable for violation of an administrative regulation which was not published? . rules or regulations can take effect.

the Court held. Angeles. There is merit in the argument. at present. need not be published. that it cannot be held liable for illegal exaction as POEA Memorandum Circular No. Angeles. Book VII. since its purpose is to enforce and implement an existing law pursuant to a valid delegation (Philippine International Trading Corporation v. In all these cited cases. Court of Appeals. In Tanada v. medical clinics and laboratories (Joint Ministry of Health-Ministry of Labor and Employment Accreditation Committee v. the maximum amount which may be collected from prospective Filipino overseas workers is P2. Court of Appeals. which enumerated the allowable fees which may be collected from applicants. the administrative issuances questioned therein were uniformly struck down as they were not published or filed with the National Administrative Register as required by the Administrative Code of 1987 (Administrative Code of 1987. 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. as follows: “We hold therefore that all statutes. directly conferred by the Constitution. 196 SCRA 263 [1991]). shall be published as a condition for their effectivity. Commission on Audit. 416 ordering the suspension of payments due and payable by distressed copper mining companies to the national government (Caltex Philippines. Inc. 208 SCRA 726 [1992]). is void for lack of publication.). supra. b) Letter of Instruction No. The said circular was apparently issued in compliance with the provisions of Article 32 of the Labor Code x x x.00. 2. 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. which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature. SOCPEC 89-08-01 issued by the Philippine International Trading Corporation regulating applications for importation from the People’s Republic of China (Philippine International Trading Corporation v. 2. c) Memorandum Circulars issued by the POEA regulating the recruitment of domestic helpers to Hong Kong (Phil. 263 SCRA 421 [1996]). 212 SCRA 298 [1992]). Section 3).500. v.” Applying this doctrine. Series of 1983 must likewise be declared ineffective as the same was never published or filed with the National Administrative Register. 2. POEA Memorandum Circular No. Interpretative regulations and those merely internal in nature. 10 issued by the Department of Budget and Management discontinuing the payment of other allowances and fringe benefits to government officials and employees (De Jesus v. Series of 1983 has not as yet been published or filed . Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. including those of local application and private laws. Torres. 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. and e) Corporate Compensation Circular No. It is thus clear that the administrative circular under consideration is one of those issuances which should be published for its effectivity. 294 SCRA 152 [1998). Under the said Order. regulating only the personnel of the administrative agency and the public. Tuvera (136 SCRA 27 [1985]). Series of 1983 provides for the applicable schedule of placement and documentation fees for private employment agencies or authority holders. Association of Service Exporters v. chapter 2. POEA memorandum Circular No. however. Series of 1983. that is. II.Held: Petitioner insists. Considering that POEA Administrative Circular No. d) Administrative Order No.

who were also the subordinates of the Commissioner of the Bureau of Customs. 356 SCRA 174.. 2. 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. In this regard. (Philsa International Placement and Services Corporation v. the Solicitor General’s reliance on the case of Yaokasin v. the same is ineffective and may not be enforced. in the execution of government contracts. and still the Court ruled therein that. Series of 1983 could not be the basis of administrative sanctions against petitioner for lack of publication. Our pronouncement in Tanada v. The fact that the said circular is addressed only to a specified group. 3rd Div. In the case of Phil. does not take it away from the ambit of our ruling in Tanada v. there is no merit in this argument. 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. petitioner should be absolved from the three (3) counts of exaction as POEA Administrative Circular No. [Gonzaga-Reyes]) 255. Tuvera. 2001. 2. Again. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. As such. for lack of proper publication. those merely internal in nature. Series of 1983 has not been shown to fall under any of these exceptions. Administrative Circular No. In the said case. the customs collectors. Xxx To summarize. Association of Service Exporters v.. 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. 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. the said circulars may not be enforced or implemented. Xxx . the validity of certain Customs Memorandum Orders were upheld despite their lack of publication as they were addressed to a particular class of persons. 29[1]. a circumstance which does not obtain in the case at bench. April 4. (Philsa International Placement and Services Corporation v. Tuvera as it is addressed only to a specific group of persons and not to the general public. April 4. Tuvera is clear and categorical. Article VI of the 1987 Constitution) Thus. namely Philippine and Hong Kong agencies engaged in the recruitment of workers for Hong Kong. Torres ((212 SCRA 298 [1992]). Secretary of Labor and Employment. Secretary of Labor and Employment. 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. 356 SCRA 174. 3rd Div. Commissioner of Customs (180 SCRA 599 [1989]) is misplaced.” (Sec. The only exceptions are interpretative regulations. [Gonzaga-Reyes]) 254. the administrative circulars questioned therein were addressed to an even smaller group. namely private employment agencies or authority holders. 2001.with the National Administrative Register.

i. Notwithstanding the issuance of the multi-year Obligational Authority. This being the case. Using this as our premise. 8760. it is also disadvantageous to the COMELEC because of the uncertainty that will loom over its modernization project for an indefinite period of time. under Section 33 of R.2 Billion Pesos is unacceptable. the project failed “to sell” with the Department of Budget and Management. supra.” however. 262.). 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.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. X x x While the contract price under the draft contract is only P1. Contracting Multi-Year Projects.” (Implementing Rules and Regulations [IRR] for Executive Order No. To hold otherwise is to allow a public officer to execute a binding contract that would obligate the government in an amount in excess of the appropriations for the purpose for which the contract was attempted to be made (64 Am Jur 2d Sec.. the same is null and void. Not only is such arrangement disallowed by our budgetary laws and practices.. what good will the accomplished Phase I serve? As expected. 1018. we cannot accede to PHOTOKINA’s contention that there is already a perfected contract. The first step of a Bids and Awards Committee (BAC) is to determine whether the bids comply with the requirements. thus: “SECTION 33. the only fund appropriated for the project was P1 Billion Pesos and under the Certification of Available Funds (CAF) only P1.e. In the case at bar. there seems to be an oversight of the legal requirements as early as the bidding stage. While we held in Metropolitan Manila Development Authority v.In the implementation of multi-year projects.000. such statement would be inconsequential in a government where the acceptance referred to is yet to meet certain conditions. upon notice of the award to the bidder. within the certified available funds.A. Clearly. .2 Billion Pesos was available. A Treatise on Government Contracts Under Philippine Law. p. the obligation to be incurred in any given calendar year.000 voters in specified areas (Ibid.) 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. 2000. declined the COMELEC’s request for the issuance of the Notice of Cash Availability (NCA) and a multi-year obligatory authority to assume payment of the total VRIS Project for lack of legal basis. Jancom Environmental Corporation (Supra) that “the effect of an unqualified acceptance of the offer or proposal of the bidder is to perfect a contract. 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. 2001. Should Congress fail to appropriate the amount necessary for the completion of the entire project. that provides for a contract price in the amount of P1. no agency shall enter into a multi-year contract without a multi-year obligational authority.2 Billion and. no agency shall enter into a multi-year contract without a multi-year Obligational Authority issued by the Department of Budget and Management for the purpose. 8760 (General Appropriations Act. Corollarily. the implementation of the VRIS Project will be “segmented” or “chopped” into several phases. FY 2000. The obvious intent is to impose such conditions as a priori requisites to the validity of the proposed contract (Fernandez. supra. No. p. under Republic Act No. In effect. the issuance of identification cards for only 1. Xxx Even the draft contract submitted by Commissioner Sadain. shall in no case exceed the amount programmed for implementation during said calendar year. 40-41). the amount appropriated is insufficient to cover the cost of the entire VRIS Project. However. thus. pp. Secretary Benjamin Diokno. 11).” . per his letter of December 1. 382).588 Billion Pesos. 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. Thus. the same covers only Phase I of the VRIS Project. This is a dangerous precedent.

Petitioners are justified in refusing to formalize the contract with PHOTOKINA. Prudence dictated them not to enter into a contract not backed up by sufficient appropriation and available funds. Definitely, to act otherwise would be a futile exercise for the contract would inevitably suffer the vice of nullity. X x x Xxx Verily, the contract, as expressly declared by law, is inexistent and void ab initio (Article 1409 of the Civil Code of the Philippines). This is to say that the proposed contract is without force and effect

from the very beginning or from its incipiency, as if it had never been entered into, and hence, cannot be validated either by lapse of time or ratification (Manila Lodge v. Court of Appeals, 73 SCRA 162 [1976];

See also Tongoy v. Court of Appeals, 123 SCRA 99 [1983]).
Xxx

In fine, we rule that PHOTOKINA, though the winning bidder, cannot compel the COMELEC to formalize the contract. Since PHOTOKINA’s bid is beyond the amount appropriated by Congress for the VRIS Project, the proposed contract is not binding upon the COMELEC and is considered void x x x.

(Commission on Elections v. Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-Gutierrez]) 256. What is the remedy available to a party who contracts with the government contrary to the requirements of the law and, therefore, void ab initio?

Held: Of course, we are not saying that the party who contracts with the government has no other recourse in law. The law itself affords him the remedy. Section 48 of E.O. No. 292 explicitly provides that any contract entered into contrary to the above-mentioned requirements shall be void, and “the

officers entering into the contract shall be liable to the Government or other contracting party for any consequent damage to the same as if the transaction had been wholly between private parties.” So

when the contracting officer transcends his lawful and legitimate powers by acting in excess of or beyond the limits of his contracting authority, the Government is not bound under the contract. It would be as if the contract in such case were a private one, whereupon, he binds himself, and thus, assumes personal liability thereunder. (Fernandez, a Treatise on Government Contracts Under Philippine Law, 2001, supra., pp. 22-23). Otherwise stated, the proposed contract is unenforceable as to the Government. While this is not the proceeding to determine where the culpability lies, however, the constitutional mandate cited above constrains us to remind all public officers that public office is a public trust and all public officers must at all times be accountable to the people. The authority of public officers to enter into government contracts is circumscribed with a heavy burden of responsibility. In the exercise of their contracting prerogative, they should be the first judges of the legality, propriety and wisdom of the contract they entered into. They must exercise a high degree of caution so that the Government may not be the victim of ill-advised or improvident action (Rivera v. Maclang, 7 SCRA 57

[1963]). (Commission on Elections v. Judge Ma. Luisa Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-Gutierrez]) 257. Does the Commission on Human Rights have the power to adjudicate?

Held: In its Order x x x denying petitioners’ motion to dismiss, the CHR theorizes that the intention of the members of the Constitutional Commission is to make CHR a quasi-judicial body. This view, however, has not heretofore been shared by this Court. In Carino v. Commission on Human Rights (204 SCRA 483, 492), the Court x x x has observed that it is “only the first of the enumerated powers and functions that bears any resemblance to adjudication of adjudgment,” but that resemblance can in no way be synonymous to the adjudicatory power itself. The Court explained:

“x x x [T]he Commission on Human Rights x x x was not meant by the fundamental law to be another court or quasi-judicial agency in this country, or duplicate much less take over the functions of the latter. “The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided by law. This function, to repeat, the Commission does not have. (Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 125, Jan. 5, 1994,

En Banc [Vitug, J.])

258. Does the Commission on Human Rights have jurisdiction to issue TRO or writ of preliminary injunction?
Held: In Export Processing Zone Authority v. Commission on Human rights (208 SCRA 125, 131), the Court x x x explained: “The constitutional provision directing the CHR to ‘provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection’ may not be construed to confer jurisdiction on the Commission to issue a restraining order or writ of injunction for, if that were the intention, the Constitution would have expressly said so. ‘Jurisdiction is conferred only by the Constitution or by law.’ It is never derived by implication.” “Evidently, the ‘preventive measures and legal aid services’ mentioned in the Constitution refer to extrajudicial and judicial remedies (including a writ of preliminary injunction) which the CHR may seek from the proper courts on behalf of the victims of human rights violations. Not being a court of justice, the CHR itself has no jurisdiction to issue the writ, for a writ of preliminary injunction may only be issued ‘by the judge of any court in which the action is pending [within his district], or by a Justice of the Court of Appeals, or of the Supreme Court. x x x. A writ of preliminary injunction is an ancillary remedy. It is available only in a pending principal action, for the preservation or protection of the rights and interest of a party thereto, and for no other purpose.” The Commission does have legal standing to indorse, for appropriate action, its findings and recommendations to any appropriate agency of government (See Export Processing Zone Authority v.

Commission on Human Rights, 208 SCRA 125). (Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 134-135, Jan. 5, 1994, En Banc [Vitug, J.]) 259. Discuss the contempt power of the Commission on Human Rights (CHR). When may it be validly exercised?

Held: On its contempt powers, the CHR is constitutionally authorized to “adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court.” Accordingly, the CHR acted within its authority in providing in its revised rules, its power “to cite or hold any person in direct or indirect contempt, and to impose the appropriate penalties in accordance with the procedure and sanctions provided for in the Rules of Court.” That power to cite for contempt, however, should be understood to apply only to violations of its adopted operational guidelines and rules of procedure essential to carry out its investigatorial powers. To exemplify, the power to cite for contempt could be exercised against persons who refuse to cooperate with the said body, or who unduly withhold relevant information, or who decline to honor summons, and the like, in pursuing its

investigative work. The “order to desist” (a semantic interplay for a restraining order) in the instance before us, however, is not investigatorial in character but prescinds from an adjudicative power that it does not possess. x x x (Simon, Jr. v. Commission on Human Rights, 229 SCRA 117, 134, Jan.

5, 1994, En Banc [Vitug, J.])

THE LAW OF PUBLIC OFFICERS

260.

How are positions in the Civil Service classified? Discuss the characteristics of each.

Ans.: Positions in the Civil Service may be classified into: 1) Career Positions, and 2) Non-Career Positions. Career Positions are characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure (Sec. 7, Chap. 2, Subtitle A, Title

I, Bk. V, E.O. No. 292).

The Non-Career Service shall be characterized by (1) entrance on bases other than of the usual tests of merit or fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made (Sec. 9, Chap.

2, Subtitle A, Title I, Bk. V, E.O. No. 292).

261.

Define Appointment. Discuss its nature.

Held: An “appointment” to a public office is the unequivocal act of designating or selecting by one having the authority therefor of an individual to discharge and perform the duties and functions of an office or trust. The appointment is deemed complete once the last act required of the appointing authority has been complied with and its acceptance thereafter by the appointee in order to render it effective. Appointment necessarily calls for an exercise of discretion on the part of the appointing authority. In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court (140 SCRA 22), reiterated in Flores v. Drilon (223 SCRA 568), this Court has held: “The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. It is a prerogative of the appointing power x x x.”

(At p. 579)

Indeed, it may rightly be said that the right of choice is the heart of the power to appoint. In the exercise of the power of appointment, discretion is an integral thereof. (Bermudez v. Torres, 311

SCRA 733, Aug. 4, 1999, 3rd Div. [Vitug])

262. May the Civil Service Commission, or the Supreme Court, validly nullify an appointment on the ground that somebody else is better qualified?
Held: The head of an agency who is the appointing power is the one most knowledgeable to decide who can best perform the functions of the office. Appointment is an essentially discretionary power and must be performed by the officer vested with such power according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment

239-240 [1991]). and appointment of outsiders who have appropriate civil service eligibility. Can a person who lacks the necessary qualifications for a public position be appointed to it in a permanent capacity? Illustrative case. the person holding the position next in rank thereto “shall be considered for promotion.” In Santiago. Held: At the outset. reemployment. not necessarily in that order. The appointing authority. J. convenience. The choice of an appointee from among those who possess the required qualifications is a political and administrative decision calling for considerations of wisdom. 244 SCRA 504-505. En Banc [Feliciano]) 263. it can be disregarded for sound reasons made known to the next-in-rank. Macaraig. it must be stressed that the position of Ministry Legal Counsel-CESO IV is embraced in the Career Executive Service. a process which denotes a scalar ascent of an officer to another position higher either in rank or salary.]) 263. 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. et al. it only applies in cases of promotion. 198 SCRA 102. As admitted by private respondent in his Comment. And even in promotions. The law limits the Commission’s authority only to whether or not the appointees possess the legal qualifications and the appropriate civil service eligibility. 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. Civil Service Commission (131 SCRA 66 [1984]). nothing else. is allowed to fill vacancies by promotion. utility and the interests of the service which can best be made by the head of the office concerned.” In the case of Achacoso v. X x x In the case at bar. the appointing authority is given wide discretion to fill a vacancy from among the several alternatives provided by law. 1995. (195 SCRA 235. reinstatement. 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. June 3. this is a prerogative of the appointing authority which he alone can decide. if qualified. There is no legal fiat that a vacancy must be filled only by promotion. the Court held: . Neither can we. 1991. What the Civil Service Law provides is that if a vacancy is filled by promotion. transfer of present employees. CSC.cannot be faulted on the ground that there are others better qualified who should have been preferred. May 29. as the concept does not import any mandatory or peremptory requirement that the person next-in-rank must be appointed to the vacancy. 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 person most familiar with the organizational structure and environmental circumstances within which the appointee must function. Jr. 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. there is no question that private respondent does not have the required CES eligibility. En Banc [Bellosillo.” In Taduran v. he is “not a CESO or a member of the Career Executive Service. under the Civil Service Law. v. Civil Service Commission (178 SCRA 733 [1989]). Indeed. CSC. the Court construed that phrase to mean that the person next-in-rank “would be among the first to be considered for the vacancy. (Rimonte v.

Otherwise. (De Leon v. his appointment as Ministry Legal Counsel-CESO IV/Department Legal Counsel and/or Director III. Such right will have to depend on the nature of his appointment. In the career executive service. private respondent’s appointment did not attain permanency. private respondent’s appointment is merely temporary. Jan. possess the needed eligibility for a position in the Career Executive Service. he did not at the time of his appointment and up to the present. the contention is without merit. may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. 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. therefore. having considered these submissions and the additional arguments of the parties in the petitioner’s Reply and of the Solicitor-General’s Rejoinder. En Banc [Ynares-Santiago]) 264. 350 SCRA 1. his appointment could be regarded only as temporary. And being so. he could be transferred or reassigned to other positions without violating his right to security of tenure. The Court. he could be transferred or reassigned without violating the constitutionally guaranteed right to security of tenure. Obviously. Such being the case. and Appointment to the appropriate CES rank. is a career executive service (CES) eligibility all that an employee needs to acquire security of tenure? Is appointment to a CES rank necessary for the acquisition of such security of tenure? Held: The petitions are impressed with merit. Evidently.” conformably to established jurisprudence. 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. to wit: a) b) CES eligibility. only as an exception to the rule. the cases on unconsented transfer invoked by private respondent find no application in the present case. Consequently. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or. their lack of eligibility would be a premium vesting them with permanency in the CES positions. As clearly set forth in the foregoing provisions. non-eligibles holding permanent appointments to CES positions were never meant to remain immobile in their status. The appointment extended to him cannot be regarded as permanent even if it may be so designated. In the career executive service. it could be withdrawn at will by the appointing authority and “at a moment’s notice. Not having taken the necessary Career Executive Service examination to obtain the requisite eligibility. hence. Then too. At best. To reiterate.” Achacoso did not. a privilege even their eligible counterparts do not enjoy. must find for the respondents.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. 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. two requisites must concur in order that an employee in the career executive service may attain security of tenure. which in turn depends on his eligibility or lack of it. Court of Appeals. 2001. was merely temporary. including the appropriate eligibility prescribed. . As correctly pointed out by the Solicitor General. 22.

(Sec. their deputies or assistants hold any other office or employment? Ans.: The President. (Sec. Jan. 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. including government-owned or controlled corporation. of the Integrated Reorganization Plan – “x x x the President may. paragraph 5(c). (General v. X x x Moreover. unless otherwise provided in this Constitution. which is – CES rank level V. 7.” Evidently. 1st Div. 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).. Accordingly. he could be validly reassigned to other positions in the career executive service. 13. agency or instrumentality thereof. Art. par. a CESO suffers no diminution of salary even if assigned to a CES position with lower salary grade. May the President. In the case at bar. IX-B. General is not a CES eligible. hold any other office or employment during their tenure. 1987 Constitution) 266. Does the prohibition in Section 13. As stated in Part III. though a CES eligible. Respondent capitalizes on the fact that petitioner Luis Mario M. 350 SCRA 528. Vice-President.: Unless otherwise allowed by law or by the primary functions of his position. there is no question that respondent Ramon S. Art. May an elective public official be validly appointed or designated to any public office or position during his tenure? Ans. Falling short of one of the qualifications that would complete his membership in the CES. (2). pertains only to rank and not to the office or to the position to which they may be appointed. does not possess the appropriate CES rank. of such CES eligibility is of no moment. and their deputies or assistants shall not. Art. 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. respondent cannot successfully interpose violation of security of tenure. Thus. 1987 Constitution) 267. 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. The absence. 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. 2001.: No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Roco. the law allows appointment of those who are not CES eligible. 2nd par.. subject to the obtention of said eligibility. 29. is permitted in a temporary capacity. the Members of the Cabinet. (Sec. May an appointive public official hold any other office or employment? Ans. no appointive official shall hold any other office or employment in the Government or any subdivision.In addition. Article IX-B? . Vice-President. 7. Article VII of the 1987 Constitution insofar as Cabinet members. Article IV. VII. their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7. 1st par. in exceptional cases. In fact. [Ynares-Santiago]) 265. IX-B. One last point. Members of the Cabinet. Chapter I. Roco. as he is compensated according to his CES rank and not on the basis of the position or office he occupies. however. 1987 Constitution) 268. appoint any person who is not a Career Executive Service eligible. for the position of Regional Director of the LTO (Region V).

Held: The threshold question therefore is: does the prohibition in Section 13. The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. specifically prohibiting the President. Jr. their deputies and assistants from holding any other office or employment during their tenure. Manuel P. allowances and other perquisites of office. Hipolito and Geronimo Z. convened as it was after the people successfully unseated former President Marcos. . the Constitutional Commission should see it fit to formulate another provision. should draft into its proposed Constitution the provisions under consideration which are envisioned to remedy. the evils that flow from the holding of multiple governmental offices and employment. Imelda R. including government-owned and controlled corporations. Article IX-B which. Article VII. instrumentalities and government-owned and controlled corporations created by presidential decrees and other modes of presidential issuances where Cabinet members. Virata of twenty-two (22). Tanco. their deputies or assistants were designated to head or sit as members of the board with the corresponding salaries. for easy reference is quoted anew. Alba. X x x But what is indeed significant is the fact that although Section 7. Vice-President. 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. Velasco. including government-owned or controlled corporation or their subsidiaries. Cesar E. Evidently.” We rule in the negative. Ongpin was a member of the governing boards of twenty-nine (29) governmental agencies. Article VII of the 1987 Constitution insofar as Cabinet members. of fifteen (15). Pena of ten (10) each. 13. Jesus S. instrumentalities and corporations. agency or instrumentality thereof. if not correct. Ancheta and Jose A. par. Cesar C. members of the Cabinet. 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.A. of fourteen each (14). It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission. Xxx The practice of designating members of the Cabinet. no appointive official shall hold any other office or employment in the government or any subdivision. and Lilia Bautista and Teodoro Q. Arturo R. emoluments. Marcos of twenty-three (23). thus: “Unless otherwise allowed by law or by the primary functions of his position. became prevalent during the time legislative powers in this country were exercised by former President Ferdinand E. Rono of twelve (12) each. and Edgardo Tordesillas of eleven (11) each. (2). X x x Particularly odious and revolting to the people’s sense of propriety and morality in government service were the data contained therein that Roberto v. from this move as well as in the different phraseologies of the constitutional provisions in question. unless otherwise provided in the Constitution itself. Zalamea of thirteen (13). per diems. Gilberto O. their deputies and assistants as members of the governing bodies or boards of various government agencies and instrumentalities. 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. Marcos pursuant to his martial law authority. There was a proliferation of newly-created agencies. their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general under Section 7. Ruben B. Teodoro. Sec.

such intent is underscored by a comparison of Section 13. the prohibition pertains to an office or employment in the government and governmentowned or controlled corporations or their subsidiaries. the Vice-President. including government-owned or controlled corporations or their subsidiaries. . their deputies and assistants may do so only when expressly authorized by the Constitution itself. Xxx Thus. Article VII with other provisions of the Constitution on the disqualifications of certain public officials or employees from holding other offices or employment. 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. their deputies and assistants. which prohibitions are not similarly imposed on other public officials or employees such as the Members of Congress. agency or instrumentality thereof. Article IX-B. the disqualification is absolute.” Even Section 7(2). Members of the Cabinet. “[N]o Senator or Member of the House of Representatives may hold any other office or employment in the Government x x x. not being qualified by the phrase “in the Government. “[N]o member of the armed forces in the active service shall. on the one hand. relied upon by respondents provides “[U]nless otherwise allowed by law or by the primary functions of his position. Article VII cannot possibly refer to the broad exceptions provided under Section 7. or be financially interested in any contract with. unless otherwise provided in this Constitution. the Members of the Cabinet. In striking contrast is the wording of Section 13.” In the latter provision. Article VI. participate in any business.” These sweeping. members of the Cabinet. during said tenure. would render nugatory and meaningless the manifest intent and purpose of the framers of the Constitution to impose a stricter prohibition on the President. no appointive official shall hold any other office or employment in the Government.Moreover. the qualifying phrase “unless otherwise provided in this Constitution” in Section 13. Article IX-B is meant to lay down the general rule applicable to all elective and appointive public officials and employees. Article IXB of the 1987 Constitution. or in any franchise. directly or indirectly. or special privilege granted by the Government or any subdivision. 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. Going further into Section 13. on the other. Article VII which states that “[T]he President. members of the civil service in general and members of the armed forces. Vice-President. hold any other office or employment during their tenure. Section 7. the second sentence provides: “They shall not. and their deputies or assistants shall not. In other words. while Section 13. Respondents’ interpretation that Section 13 of Article VII admits of the exceptions found in Section 7. Article VII. all-embracing prohibitions imposed on the President and his official family.” It is quite notable that in all these provisions on disqualifications to hold other office or employment.” The prohibition imposed on the President and his official family is therefore all-embracing and covers both public and private office or employment. including government-owned or controlled corporations or any of their subsidiaries. Vice-President. Members of the Cabinet. practice any other profession. To construe said qualifying phrase as respondents would have us to do. at any time. Article VII is meant to be the exception applicable only to the President. and the generality of civil servants from the rank immediately below Assistant Secretary downwards. their deputies and assistants with respect to holding other offices or employment in the government during their tenure. par. may hold any other office or position in the government during their tenure.” Under section 5(4). be appointed in any capacity to a civilian position in the Government. (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. Under Section 13. Article XVI. This being the case.

Section 13. and to act as President without relinquishing the Vice-Presidency where the President shall not have been chosen or fails to qualify (Sec. 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. Article VII on the operations of the Government. Ostensibly restricting the number of positions that Cabinet members. pars. Article VII in relation to Section 7. i. 86 Ky 596. (2) and (3). the exception to this prohibition must be read with equal severity. unless otherwise provided in the 1987 Constitution itself. 22 Tex.). Xxx It being clear x x x that the 1987 Constitution seeks to prohibit the President. 7. the language of Section 13. and..e.Moreover. Article VII. members of the Cabinet. Article VII). 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. the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1).W. Executive Order No. par. Verily. State. Such absurd consequence can be avoided only by interpreting the two provisions under consideration as one. i. Article VII of the 1987 Constitution prohibiting them from doing so. Justice.” Surely. par. 284 dated July 23. but who as an elective public official under Sec. par. wherever the language used in the constitution is prohibitory. Article VII. 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. Ibid. par. to say that the phrase “unless otherwise provided in this Constitution” found in Section 13. par. 7. Article IX-B of the 1987 Constitution. 457. 3 S. their deputies or assistants from holding during their tenure multiple offices or employment in the government. 6 S. (1) of Article IX-B is absolutely ineligible “for appointment or designation in any capacity to any public office or position during his tenure. This observation applies particularly to the Vice-President who. it is to be understood as intended to be a positive and unequivocal negation (Varney v. In the light of the construction given to Section 13. under Section 13 of Article VII is allowed to hold other office or employment when so authorized by the Constitution. 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 as constituting the exception thereto. par. (2). to wit: the Vice-President being appointed as a member of the Cabinet under Section 3. Xxx Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President. Executive Order No. In the same manner must Section 7. Vice-President. Article VII. 233).. (1) of Article IX-B providing the general rule and the other. Article VII has reference to Section 7. (2) of Article IX-B be construed vis-à-vis Section 13. App. 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. members of the Cabinet. their deputies and assistants with respect to holding multiple offices or employment in the government during their tenure. Article VIII. respondents’ reading of the provisions in question would render certain parts of the Constitution inoperative. 3. considering that Cabinet members would be stripped of their offices held in an ex-officio . Section 7. (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. Hunt v. or acting as President in those instances provided under Section 7. (2). the citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on the general rule laid down for all appointive officials should be considered as mere personal opinions which cannot override the constitution’s manifest intent and the people’s understanding thereof. 396. 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13.W. 1987 is unconstitutional.e. Vice-President. On its face.

87 L. He should be precluded from dissipating his efforts. Article VII of the Constitution apply to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said officials’ office? Held: The prohibition against holding dual or multiple offices or employment under Section 13. If maximum benefits are to be derived from a department head’s ability and expertise. attention and energy among too many positions and responsibility. the Court hereby orders respondents x x x to immediately relinquish their other offices or employment. far outweigh the benefits. CJ]) 269.R. To reiterate. Executive Secretary. 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. United States. which is permissive. and the Secretaries of National Defense. that may be gained from a department head spreading himself too thin and taking in more than what he can handle. 320 U. 284 to be constitutionally infirm. Being head of an executive department is no mean job. Feb. is not to be interpreted as demanding the impossible or the impracticable. Finding Executive Order No. which may result in haphazardness and inefficiency. viewed as a continuously operative charter of government. specialized knowledge. Smith. 63 S. particularly at this stage of our national and economic development. Neither can the VicePresident. 1991. Article VII of the Constitution must not. would also be prohibited.R. 1774. which would then have no reason to exist for lack of a chairperson and members. should be avoided (Hirabayashi v. 81. 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.L. suffice it to say that the feared impractical consequences are more apparent than real. Ed. (Civil Liberties Union v.S. he should be allowed to attend to his duties and responsibilities without the distraction of other governmental offices or employment. “Required” suggests an imposition. To characterize these posts otherwise would lead to absurd consequences. Xxx Indeed. 22. Labor and Employment and Local Government sit in this Council. (2). and unreasonable or absurd consequences. Justice. 194 SCRA 317. including government-owned or controlled corporations and their subsidiaries. obligatory in nature) by the primary functions of said officials’ office. if possible. As earlier clarified in this decision. The reason is that these posts do not comprise “any other office” within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials (Martin v. 1986). Greater Greenville Sewer District. the framers of our Constitution could not have intended such absurd consequences. Surely the advantages to be derived from this concentration of attention. Article IX-B of the Constitution. Ct. 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 . however. including chairmanships or directorships in governmentowned or controlled corporations and their subsidiaries. 1073. as herein defined.capacity. in the government. 407). if any. and therefore. requiring full attention. A Constitution. by reason of their primary positions or by virtue of legislation. others omitted). The respective undersecretaries and assistant secretaries. knowledge and expertise. the prohibition under Section 13. En Banc [Fernan. among which are: The President of the Philippines cannot chair the National Security Council reorganized under Executive Order No. 140 A. 1375. Ashmore v. par. the Executive Secretary. It is more than a full-time job. 173 A. Does the prohibition against holding dual or multiple offices or employment under Section 13. With respect to other offices or employment held by virtue of legislation. skills and expertise.L. 115 (December 24.

15A Words and Phrases.” Ex officio likewise denotes an “act done in an official character.” (Italics supplied) The term “primary” used to describe “functions” refers to the order of importance and thus means chief or principal function. under the act.O. Vice-President. An example would be the Press Undersecretary sitting as a member of the Board of the Philippine Amusement and Gaming Corporation. Article VII). p. 197 S. thus: “An examination of Section 2 of the questioned statute (R. 7. or as a consequence of office. P. p. such additional functions would fall under the purview of “any other office” prohibited by the Constitution. p. 392) An ex-officio member of a board is one who is a member by virtue of his title to a certain office. 3137) reveals that for the chairman and members of the Board to qualify they need only be designated by the respective department heads. the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority (Sec.D. This is as it should be. It is consistent with the power vested on the President and his alter egos. 516. but rather annexed to the official position. policy direction. expertise and skill in their respective executive offices is a practice long-recognized in many jurisdictions. thereby resulting in an unwieldy and confused bureaucracy. they sit ex-officio. their deputies or assistants which are not inconsistent with those already prescribed by their offices or appointments by virtue of their special knowledge.” (Black’s Law Dictionary.. It is a practice justified by the demands of efficiency. No new appointments are necessary. 7. To illustrate. bureaus and offices and to ensure that the laws are faithfully executed (Section 17. With the exception of the representative from the private sector. or otherwise alien to the primary function of a cabinet official. Mandating additional duties and functions to the President. No. because the representatives so designated merely perform duties in the Board in addition to those already performed under their original appointments. inconsistent.by the primary functions of the concerned official’s office. The same is true with respect to the representatives from the other offices. 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. and the Light Rail Transit Authority (Sec. 1. not expressly conferred upon the individual character. by virtue of office. 210. to have control of all the executive departments. but must be required by the official’s primary functions. Embroidery and Apparel Control and Inspection Board (21 SCRA 336 [1967]). I order to be designated they must already be holding positions in the offices mentioned in the law. by express provision of law. The Court had occasion to explain the meaning of an ex-officio position in Rafael v. 778). App.A. Examples of designations to positions by virtue of one’s primary functions are the Secretaries of Finance and Budget sitting as members of the Monetary Board. and without further warrant or appointment (15A Words and Phrases. E. The term ex-officio means “from office. be designated a representative from that office.. If the functions to be performed are merely incidental.O. they would be deprived of the means for control and supervision. The term is not restricted to the singular but may refer to the plural (33A Words and Phrases. remotely related. The additional duties must not only be closely related to. cannot. 2d 141. and without any other appointment or authority than that conferred by the office. 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. Thus. The same rule applies to such positions which confer on the cabinet official management functions and/or monetary compensation. Louisiana Ready Mix Co. 392). for instance. one who does not hold a previous appointment in the Bureau of Customs. p. such as but not limited to chairmanships or directorships in government-owned or controlled corporations and their subsidiaries. . E. La. and the Secretary of Transportation and Communications acting as Chairman of the Maritime Industry Authority (Sec. 145).” It refers to an “authority derived from official character merely. citing Collector of Revenue v. Cabinet Members. 474) and the Civil Aeronautics Board. incompatible. 210). the Cabinet members.

En Banc [Fernan. allowances or other emoluments received by the respondents by virtue of actual services rendered in the questioned positions may therefore be retained by them. . No. or any subdivision. Arrieta. or some other such euphemism. 112 Pac. Any per diem. The ex-officio position being actually and in legal contemplation part of the principal office. without receiving any additional compensation therefor. 1974. Executive Secretary. say. such additional compensation is prohibited by the Constitution. Should members of the Cabinet appointed to other positions in the government pursuant to Executive Order No. 1991.A. 801. 32 L. or instrumentality thereof. CJ]) 271. petitioner maintains that a reassignment without her consent amounts to removal from office without due process and therefore illegal. the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof. Art. (Civil Liberties Union v. 22. Feb.It bears repeating though that in order that such additional duties or functions may not transgress the prohibition embodied in Section 13. whether it be in the form of a per diem or an honorarium or an allowance. 272. Feb. The reason is that these services are already paid for and covered by the compensation attached to his principal office. is legally entitled to the emoluments of the office. undoubtedly. who. and may in an appropriate action recover the salary. 1987 Constitution). By whatever name it is designated. 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. It should be obvious that if. 61 SCRA 55). 194 SCRA 317. he is actually and in legal contemplation performing the primary function of his principal office in defining policy in monetary and banking matters. including government-owned or controlled corporations or their subsidiaries. respondents may be considered de facto officers and as such entitled to emoluments for actual services rendered (Castillo v. such additional duties or functions must be required by the primary functions of the official concerned. which come under the jurisdiction of his department. a de facto officer. 1991. acting as a collegial body. supported on equitable grounds since it seems unjust that the public should benefit by the services of an officer de facto and then be freed from all liability to pay any one for such services (Patterson v. Petitioner further argues that only the COMELEC. can authorize such reappointment. Executive Secretary. 13. it follows that the official concerned has no right to receive additional compensation for his services in the said position. 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. fees and other compensations attached to the office. Article VII of the 1987 Constitution. who is to perform the same in an ex-officio capacity as provided by law. For such attendance. the second is a forbidden office. G. during his term without forfeiting his seat. Benson. 194 SCRA 317.R. therefore.R.: No Senator or Member of the House of Representatives may hold any other office or employment in the government. [NS] 949). Moreover. 284 which later was declared unconstitutional by the SC for being violative of Section 13. agency. This doctrine is. En Banc [Fernan. (Civil Liberties Union v. VI. It has been held that “in cases where there is no de jure officer. he is not entitled to collect any extra compensation. The first sentence is referred to as an incompatible office. in good faith has had possession of the office and has discharged the duties pertaining thereto. L31444. 22. November 13. Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the Law Department. May a Senator or Congressman hold any other office or employment? Ans. CJ]) 270.

Chapter 2. Petitioner is not a Career Executive Service (CES). making the resolution utterly useless. Subtitle C. Under the Revised Administrative Code (see Section 7 [4]. 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. as a prohibited act under Section 261 (h) of the Omnibus Election Code x x x. X x x Xxx The proviso in COMELEC Resolution No. 3300. petitioner has no legal basis in claiming that her reassignment was contrary to the Civil Service Law. refers only to COMELEC field personnel and not to head office personnel like the petitioner. carried out during the election period. 3300. We have ruled. petitioner insists that the COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the election period. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry the concurrence of the COMELEC as a collegial body. and not possessed of the necessary qualifications to hold the position of Director IV. 3300 should be interpreted for what it is. 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. Contrary to petitioner’s allegation. The Chairman. The COMELEC en banc cannot arrogate unto itself this power because that will mean amending the Revised Administrative Code. petitioner does not enjoy security of tenure as Director IV. as the Chief Executive of the COMELEC. Petitioner’s appointment papers x x x indisputably show that she held her Director IV position in the EID only in an acting or temporary capacity. an act the COMELEC en banc cannot legally do. the COMELEC did in fact issue COMELEC Resolution No. without need of securing a second approval from the COMELEC en banc to actually implement such transfer or reassignment. is expressly empowered on his own authority to transfer or reassign COMELEC personnel in accordance with the Civil Service Law. Book V of the Revised Administrative Code). however. The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel pursuant to COMELEC Resolution No. requiring due notice and hearing before any transfer or reassignment can be made within thirty days prior to election day. and neither does she hold Career Executive Service Eligibility. Obviously. an approval to effect transfers and reassignments of personnel. petitioner assails her reassignment. COMELEC Resolution No. Moreover. 2000. X x x Xxx Having been appointed merely in a temporary or acting capacity. exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. the Chairman is not required by law to secure the approval of the COMELEC en banc. 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. In the exercise of this power.Held: Petitioner’s posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of the COMELEC. 3300 dated November 6. . Resolution No. and consequently he has full authority to exercise all the powers of that office for so long as his ad interim appointment remains effective. the COMELEC Chairman is the sole officer specifically vested with the power to transfer or reassign COMELEC personnel. X x x Still. X x x. that Benipayo is the de jure COMELEC Chairman.

approved the transfer or reassignment of COMELEC personnel during the election period. 237 SCRA 184. 95-01 which recalled the appointments of the private respondents. provided that there is previous notice and hearing. 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. it is well-settled that the person assuming a position in the civil service under a completed appointment acquires a legal. There was no previous notice. he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the Commission.” Thus. For the same reason. Civil Service Commission. Civil Service Commission. “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. 248 [1992]) Petitioner admits that his very first official act upon assuming the position of town mayor was to issue Office Order No. . Benipayo. unless there is valid cause to do so. 232 SCRA 388. En Banc [Carpio]) 273. Notwithstanding the initial approval of an appointment. In no case shall an appointment take effect earlier than the date of its issuance. not just an equitable. Rule V.The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. 10. (Aquino v. in a de jure capacity. The appointment shall remain effective until disapproved by the Commission. An appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its issuance by the appointing authority. but by the Constitution as well. April 2. 380 SCRA 49. 20. or by removal. Neither can he question the CSC’s jurisdiction to affirm or revoke the recall. Clearly. 2002. 3300. Thus.” (Mauna v. the same may be recalled on any of the following grounds: (a) Promotion Plan. The person holding that office. This right is protected not only by statute. it is the CSC that is authorized to recall an appointment initially approved. but only when such appointment and approval are proven to be in disregard of applicable provisions of the civil service law and regulations (Debulgado v. Civil Service Commission. Section 20 of Rule VI also provides: Sec. 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. which right cannot be taken away by either revocation of the appointment. (Matibag v. there is no debate that he does not have blanket authority to do so. 398 [1994]) Moreover. 208 SCRA 240. Benipayo’s order designating Cinco Officer-in-Charge of the EID is legally unassailable. The COMELEC en banc. is Benipayo. (b) Non-compliance with the procedures/criteria provided in the agency’s Merit Failure to pass through the agency’s Selection/Promotion Board. much less a hearing accorded to the latter. and if the appointee has assumed the duties of the position. May the appointment of a person assuming a position in the civil service under a completed appointment be validly recalled or revoked? Held: It has been held that upon the issuance of an appointment and the appointee’s assumption of the position in the civil service. 200 [1994]). right to the position. in COMELEC Resolution No. Moreover. Benipayo’s order reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code. Section 10 of the same rule provides: Sec.

1st Div. No.R.” specifically those made within two (2) months immediately prior to the next presidential elections. applies only to the President or Acting President. there is no occasion for appeal. rules and regulations. 6. NLRC. 274 SCRA 414. as amended. 204 SCRA 965. be exempted from payment of all duties. however. the occupant of a particular position could be considered a confidential employee if the predominant reason why he was chosen by the appointing authority was the latter’s belief that he can share a close intimate relationship with the occupant which ensures freedom of discussion without fear or embarrassment or misgivings of possible betrayal of personal trust or confidential matters of state. 289 [1950]) Under the proximity rule. or by incorporation under the general corporation law? Those with special charters are government corporations subject to its provisions. the appointments of the private respondents may only be recalled on the above-cited grounds.” The CSC correctly ruled. taxes. 192 SCRA 84. Does the Civil Service Law contemplate a review of decisions exonerating officers or employees from administrative charges? Held: By this ruling. No. Mallare. 28. 2001. 95. 353 SCRA 94. 1999. we overrule prior decisions holding that the Civil Service Law “does not contemplate a review of decisions exonerating officers or employees from administrative charges” . 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. or private in nature is simple. Court of Appeals. taxes. [Pardo]) 275. Salas. Civil Service Commission. the only reason advanced by the petitioner to justify the recall was that these were “midnight appointments. And yet. 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 Rama v. fees and other charges. Accordingly. (De los Santos v. Feb. that the constitutional prohibition on socalled “midnight appointments. Is it created by its own charter for the exercise of a public function. Aug. 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. etc. G. or (d) Violation of other existing civil service law. (Camporedondo v. 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. En Banc [Ynares-Santiago]) 274. transfer. 85) or “when respondent is exonerated of the charges. has it been “impliedly converted to a private corporation”? Held: The test to determine whether a corporation is government owned or controlled. 968) In other words. With the amendment of its charter.” (Mendez v.(c) Violation of the existing collective agreement between management and employees relative to promotion. demotion in rank or salary.A. where the position occupied is more remote from that of the appointing authority. 87 Phil. Its charter. the element of trust between them is no longer predominant. June 19. (CSC v. and its employees are under the jurisdiction of the Civil Service Commission. Civil Service Commission. 129049. be exempted from payment of all duties. fees and other charges. etc. 1997) 276. Withal. The Philippine National Red Cross (PNRC) is a government-owned and controlled corporation with an original charter under R. was amended to vest in it the authority to secure loans. however.

Civil Service Law. En Banc [Pardo]) 277. The Civil Service Act of 1959 (R. we must recall that the authority of the Ombudsman to conduct administrative investigations is mandated by no less than the Constitution. Preventive suspension pending investigation is not a penalty. 807. EO No. 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. the suspension will be lifted and the respondent will automatically be reinstated. Pedro O. April 21. No. (Beja. preventive suspension is not a penalty in itself. Hence. 4. On the other hand. (CSC v. 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. While the former may be imposed on a respondent during the investigation of the charges against him. he should be reinstated with full pay for the period of the suspension.A. CA. 1999. 292) and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and. G. EO No. Navarro v. for obvious reasons. Held: Imposed during the pendency of an administrative investigation.enunciated in Paredes v. Magpale v. 135805. (Gloria v. 1999. to resolve the present controversy. x x x . Discuss the power of Ombudsman to conduct administrative investigations. If after investigation respondent is found innocent of the charges and is exonerated. 207 SCRA 689. par. Civil Service Law.R. However. Held: Worth stressing. March 31. 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. from the scene of his alleged misfeasance while the same is being investigated. 1992 [Romero]) 278. It is a measure intended to enable the disciplining authority to investigate charges against respondent by preventing the latter from intimidating or in any way influencing witnesses against him. 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. 51. It is merely a measure of precaution so that the employee who is charged may be separated. Sr. 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. No. No. 292).D. April 29. What is preventive suspension? Discuss its nature. G. Civil Service Commission (204 SCRA 965). Civil Service Commission and Export Processing Zone Authority (226 SCRA 207) and more recently Del Castillo v. v. Civil Service Commission (215 SCRA 398). No. 8(d) of P. 131012. CA. Thus preventive suspension is distinct from the administrative penalty of removal from office such as the one mentioned in Sec. no compensation was due for the period of preventive suspension pending investigation. and to impose preventive suspension. Dacoycoy. Discuss the kinds of preventive suspension under the Civil Service Law. 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. after review. Civil Service Commission (192 SCRA 84). the respondent is exonerated (Section 47. he should be reinstated. If the investigation is not finished and a decision is not rendered within that period.R. Civil Service Commission (237 SCRA 184). En Banc [Mendoza]) 279. Mendez v. they are entitled to compensation for the period of their suspension pending appeal if eventually they are found innocent.

April 21. further grants the Office of the Ombudsman the statutory power to conduct administrative investigations. In this case. 7. among other factors. Barbers. The discretion as regards the period of such suspension also necessarily belongs to the Ombudsman. 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. CA. G. the question of whether or not the Ombudsman may conduct an investigation over a particular act or omission.R. regardless of the branch of government in which they are employed (Buenaseda v. X x x Xxx Given these findings. p. The period for which an official may be preventively suspended must not exceed six months. 106 Phil. But considering its purpose and the . 1031 [1960]. 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. Flavier. 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.. However.A. December 28. 134495. 6770. is different from the question of whether or not petitioner. Garcia. 131012. the present controversy simply boils down to this pivotal question: Given the purpose of preventive suspension and the circumstances of this case. excepting of course those removable by impeachment. 1999.).A. 300 SCRA 494). we cannot say now that there is no evidence sufficiently strong to justify the imposition of preventive suspension against petitioner.A. petitioner was preventively suspended and ordered to cease and desist from holding office for the entire period of six months. 6770 names the officials subject to the Ombudsman’s disciplinary authority x x x.R. members of Congress and the Judiciary. 306 SCRA 287) or to tamper with records that might be vital to the prosecution of the case against him (Yasay. even as we must also take note that the power to investigate is distinct from the power to suspend preventively an erring public officer. others omitted. to prevent that official from using his office to intimidate or influence witnesses (Gloria v. Jr.A. The power to preventively suspend is available not only to the Ombudsman but also to the Deputy Ombudsman. 1998. which is the maximum provided by law.. X x x Section 21 of R. This distinction ought here to be kept in mind. Likewise worthy of note. the evidence of guilt is strong. 9. Desierto. appears clear from the foregoing provisions of R. 6770. No. except that he cannot extend the period of suspension beyond that provided by law (Castillo-Co v. 654 [1993]). The determination of whether or not the evidence of guilt is strong as to warrant preventive suspension rests with the Ombudsman (Nera v. That the Office of the Ombudsman may conduct an administrative investigation into the acts complained of. 6770 x x x may be imposed when. 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. This is the clear import of Section 24 of R. G. supra. In our view.A. R. et al. after investigation. in our view. No.R. v. 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. et al.). But. 226 SCRA 645. 6770 abovecited. 24. the Ombudsman Law. may be held administratively liable. p. Petitioner is an elective local official accused of grave misconduct and dishonesty.

has been violated. The two statutes on the specific matter in question are not so inconsistent. as to compel us to only uphold one and strike down the other. and only for a maximum period of sixty days. Gozo-Dadole (251 SCRA 242 [1995]). We must conclude that the period during which petitioner was already preventively suspended. at 253-254) However. who can impose a longer period of preventive suspension. or harassing and preventing witnesses who wish to appear against him. or before the official is given an opportunity to prove his innocence (supra . let alone irreconcilable. even without conceding that initially it was weak. supra. as respondents would have us believe. Vitug. a governor. 314 SCRA 207. but we have held in other cases that there could be preventive suspension even before the charges against the official are heard. considering the constitutional origin of his Office. of whether there has been grave abuse of discretion in a specific case of preventive suspension.circumstances in the case brought before us. 1999. 2nd Div. Xxx Respondents may be correct in pointing out the reason for the shorter period of preventive suspension imposable under the Local Government Code. But per J. 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. True. Distinguish preventive suspension under the Local Government Code from preventive suspension under the Ombudsman Act. Political color could taint the exercise of the power to suspend local officials by the mayor. In contrast the Ombudsman.” (Hagad v. 251-252) It was also argued in Hagad. it does appear to us that the imposition of the maximum period of six months is unwarranted. But as respondents argue. In contrast the Ombudsman. 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. (Garcia v.” (Id. Sept. or the President. however. without necessarily subscribing to petitioner’s claim that the Local Government Code. [Quisumbing]) 280. is not likely to be similarly motivated because it is a constitutional body. there is nothing in the Local Government Code to indicate that it has repealed. Gozo-Dadole. 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. In Hagad v. and for the maximum period of six months provided by the Ombudsman Law. has been sufficient for the lawful purpose of preventing petitioner from hiding and destroying needed documents. always ought to be insulated from the vagaries of politics. who may be motivated by partisan political considerations. the pertinent provisions of the Ombudsman Act. which he averred should apply to this case of an elective local official. we said: “Indeed. 10. governor. 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. Held: We reach the foregoing conclusion. Mojica. under said Code. petitioner was suspended without having had the chance to refute first the charges against him. whether expressly or impliedly. “the two provisions govern differently. The distinction is valid but not decisive. preventive suspension may only be imposed after the issues are joined.. Here. Indeed it did not. 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. X x x [G]ranting that now the evidence against petitioner is already strong. or President’s office. in our view. administrative complaints commenced under the Ombudsman Law are distinct from those initiated under the Local Government Code.

at note 14. Sept. Sandiganbayan. the official concerned must be given 72 hours to answer the charges against him. 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. Once the information is found to be sufficient in form and substance. X x x In the relatively recent case of Segovia v. however. 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. Moreover. 2nd Div. or permanent or temporary employees. or pertaining to the career or non-career service. as amended – treating of the suspension pendente lite of an accused public officer – may no longer be put at issue. and there seems to be “no ifs and buts about it. excluding the case of Buenaseda v. (Garcia v. 1999. In his case. Sandiganbayan (288 SCRA 328 [1998]). the court is bound to issue an order of suspension as a matter of course. This. Petitioner also avers that the suspension order against him was issued in violation of Section 26[2] of the Ombudsman Law x x x.A. does not make invalid the preventive suspension order issued against him. 163 SCRA 163 . the Court reiterated: “The validity of Section 13. and furnishing a copy thereof to the Senate of the Philippines for the implementation of the suspension order. As we have earlier stated. respondents state that petitioner was given 10 days to submit his counter-affidavit to the complaint filed by respondent Tagaan. petitioner says the inquiry was converted into an administrative investigation without him being given the required number of hours to answer. [Quisumbing]) 281. indeed. therefore. Mojica. 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. from any government position. Indeed. 3019. 314 SCRA 207. Does Section 13. Miriam Defensor-Santiago. “X x x “The provision of suspension pendente lite applies to all persons indicted upon a valid information under the Act. 336-337) It would appear. it does not appear that petitioner was given the requisite 72 hours to submit a written answer to the complaint against him. the Sandiganbayan erred in decreeing the preventive suspension order against Senator Miriam Defensor-Santiago? Will the order of suspension prescribed by Republic Act No. Flavier).” (Libanan v. 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. whether they be appointive or elective officials. having been repeatedly upheld by this Court. Petitioner argues that before an inquiry may be converted into a full-blown administrative investigation. R. 10. 3019 has both legal and jurisprudential support. 3019 exclude from its coverage the members of Congress and. a Senator of the Republic of the Philippines.” (At pp. 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. a preventive suspension order may be issued even before the charges against the official concerned is heard. Republic Act No.

Sandiganbayan (128 SCRA 383 [1984]) observed: “x x x It is not a penalty because it is not imposed as a result of judicial proceedings.” (At p. 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. if acquitted. Act 3019 or the provisions on bribery of the Revised Penal Code. 386) In issuing the preventive suspension of petitioner. the Court in the case of Bayot v. supra. It has been said that – “ ‘x x x No specific rules need be laid down for such pre-suspension hearing.” (Luciano v.e. more than once. 40 SCRA 187 [1971]. upheld Sandiganbayan’s authority to decree the suspension of public officials and employees indicted before it. and the right to present a motion to quash the information on any other grounds provided in Rule 117 of the Rules of Court. Sandiganbayan. i. In other words. a resolution of the challenge to the validity of the criminal proceeding. that the facts charged do not constitute an offense. Act No. Neither does it contemplate a proceeding to determine (1) the strength of the evidence of culpability against him. 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 . In fact. 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).) En passant. constitute the elements of an offense punishable under Rep. Section 13 of Republic Act No. (2) the gravity of the offense charged. “However. e. if hypothetically admitted.. (Bayot v. 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. 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. the Sandiganbayan merely adhered to the clear and unequivocal mandate of the law. 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. 3019. and not only the particular office under which he stands accused.’ “x x x “Likewise.[1988]) Explaining the nature of the preventive suspension. 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. Sandiganbayan. 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. 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. 163 SCRA 511. or of the provisions on bribery of the Revised Penal Code. on such ground. Mariano. that he has not been afforded the right of due preliminary investigation. Segovia v.g. People v. or of the provisions on bribery of the Revised Penal Code. should be limited to an inquiry whether the facts alleged in the information. 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. supra. Thus. there is no hard and fast rule as to the conduct thereof. the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension. Act 3019. 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. Section 2 of Rule 117 of the Rules of Court.. Albano. as well as the jurisprudence in which the Court has.

Article VI. of the Revised Rules on Criminal Procedure (Segovia v. as the case may be. 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. punish its Members for disorderly behavior. Petitioner’s invocation of Section 16 (3). et al. Sandiganbayan. (G. 3019.M.preventive suspension pending the trial of the case. that he has not been afforded the right to due preliminary investigation. despite his protestations on the encroachment by the court on the prerogatives of Congress. suspend or expel a Member. supra. however. The order of suspension prescribed by Republic Act No. v. Section 1. Jr. 3019 nor from its sanctions. Thus. in its resolution in the case of Ceferino Paredes. should not exceed sixty days – in unavailing. 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.” 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.” (Section 16[3]. Sandiganbayan. The maxim simply recognizes each of the three co-equal and independent. pertains to an affair internal to either of Congress or the Executive. such as.’ 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. The Court ruled: “x x x. Resolution of the Supreme Court in A. and. despotic.R. upholding the validity of the information filed against petitioner. shall not exceed sixty days. which is not a penalty but a preliminary. which became effective on 01 December 2000) Xxx The pronouncement. When the question. Article VI of the Constitution – which deals with the power of each House of Congress inter alia to ‘punish its Members for disorderly behavior. albeit coordinate. prescinding from the fact that the latter is not being imposed on petitioner for misbehavior as a Member of the House of Representatives. the term has been said to imply an arbitrary. All it secures to the accused is adequate opportunity to challenge the validity or regularity of the proceedings against him. when imposed. behooved Sandiganbayan to discharge its mandated duty to forthwith issue the order of preventive suspension.” 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. No. dated 03 October 2000. Rule 117. as it appears to be quite distinct from the suspension spoken of in Section 13 of RA 3019. it might be well to elaborate a bit. capricious or whimsical exercise of judgment amounting to lack or excess of jurisdiction. 118364. A penalty of suspension. 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. 00-05-03-SC.” The doctrine of separation of powers by itself may not be deemed to have effectively excluded Members of Congress from Republic Act No. In its normal concept. preventive measure. Parenthetically. of the 1987 Constitution. with the concurrence of two-thirds of all its Members. the Court affirmed the order of suspension of Congressman Paredes by the Sandiganbayan. when imposed. 08 August 1995). 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. No. upon an erring member. branches of the government – the Legislative. or that the information is subject to quashal on any of the grounds set out in Section 3. the Court subscribes to the view that unless an infringement of any specific Constitutional proscription thereby inheres the Court should not deign . empowers the Court to act not only in the settlement of “actual controversies involving rights which are legally demandable and enforceable. Article VIII.

212 SCRA 768. 139043. A public official cannot be removed for administrative misconduct committed during a prior term. (Aguinaldo v. including his past misconduct. It is an impairment or a clear disregard of a specific constitutional precept or provision that can unbolt the steel door for judicial intervention. citing Conant v. who must promptly react in the manner prescribed by the Charter itself.R. Sandiganbayan. Provincial Board of Nueva Ecija (106 Phil. however. Respondents maintain that.R. Republic Act No. since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor.” Aguinaldo cannot apply. If any part of the Constitution is not.. (Santiago v. it is the people. Santos. armed with such knowledge. 332 [1887].” Respondents. 10. 3019 does not exclude from its coverage the members of Congress and that. 16698 has been decided by the First Division of the Sandiganbayan on 06 December 1999. it still reelects him. responsive to contemporary needs. 281. his reelection has rendered the administrative case filed against him moot and academic. the Sandiganbayan did not err in thus decreeing the assailed preventive suspension order. Hon. So. that “x x x When the people have elected a man to office. 356 SCRA 636. The Court. 63. 466. G. En Banc [Vitug]) 282. Hon. 472 [1959]. it must be assumed that they did this with knowledge of his life and character. finds no application to criminal cases pending against petitioner. A reelected local official may not be held administratively accountable for misconduct committed during his prior term of office. April 18. Petitioner further cites the ruling of this Court in Pascual v. This is because his reelection operates as a condonation by the electorate of the misconduct committed by an elective official during his previous term. per our ruling in Aguinaldo v. Mojica. therefore. Brogan. nevertheless. according to respondents. The foregoing rule. What is the Doctrine of Condonation? Illustrative case. What is the doctrine of forgiveness or condonation? Does it apply to pending criminal cases? Held: 1. deems it appropriate to render this decision for future guidance on the significant issue raised by petitioner. Arturo C. Attention might be called to the fact that Criminal Case No. Santos (212 SCRA 768 [1992]). 2001. 559. 773 [1992]) 2. 6 N. Garcia v. if he had been guilty of any. 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. because what is involved in this case is a misconduct committed during a previous term but to be effective during the current term. The rationale for this holding is that when the electorate put him back into office.L.substitute its own judgment over that of any of the other two branches of government. Held: Petitioner contends that.R. cited in 17 A. it is presumed that it did so with full knowledge of his life and character.S. Sept. 1999 [Quisumbing]) 283. et al. then such reelection is considered a condonation of his past misdeeds. it was to commence or be effective only on September 1998 or during his current term. and that they disregarded or forgave his faults or misconduct. contend that while the contract in question was signed during the previous term of petitioner. not the Court. or ceases to be. It is not for the court. If. No. . on the other hand. by reason of such faults or misconduct to practically overrule the will of the people.Y. 50 LRA [NS] 553). (Mayor Alvin B. acquitting herein petitioner.

armed with such knowledge. 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. petitioner cannot take refuge in the fact of his reelection. Petitioner cites our ruling in Salalima v. others omitted). Zuellig was signed just four days before the date of the elections. the Court applied the Aguinaldo doctrine. On this point. and so the electorate could not be said to have voted for petitioner with knowledge of this particular aspect of his life and character. the “sole act” for which he has been administratively charged is the signing of the contract with F. in reelecting him. even if the administrative case against Governor Salalima was filed after his reelection.E. wherein we absolved Albay governor Ramon R. The charge. according to respondents. In Salalima. Besides. it is resumed that it did so with full knowledge of his life and character. Xxx We now come to the concluding inquiry. including his past misconduct. It was not made an issue during the election. in Salalima. 466 [1959]. then such reelection is considered a condonation of his past misdeeds.E. the electorate was actually aware of his prior misdeeds. it still reelects him. petitioner contends that “the only conclusive determining factor” as regards the people’s thinking on the matter is an election. they did so with full knowledge of petitioner’s character. or any act subsequent to the perfection of the contract. Zuellig. That the people voted for an official with knowledge of his character is presumed. petitioner responds that knowledge of an official’s previous acts is presumed and the court need not inquire whether. Guingona (257 SCRA 55 [1996]). Further. For his part. respondents point out that the contract entered into by petitioner with F. Nevertheless. However. 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. Granting that the Office of the Ombudsman may investigate. in his view.“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. although disbursements of public funds to cover payments under the agreement were still being done during his subsequent term. according to petitioner. On this point we agree with petitioner. the acts of petitioner committed prior to his present term of office. can that office hold him administratively liable for said acts? In a number of cases. The implementation of the contract is a mere incident of its execution. 106 Phil. following Salalima. we have repeatedly held that a reelected local official may not be held administratively accountable for misconduct committed during his prior term of office (Pascual v. excludes the contract’s execution or implementation. precisely to eliminate the need to . 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. Hon. The rationale for this holding is that when the electorate put him back into office.” Hence. Salalima of his administrative liability as regards a retainer agreement he signed in favor of a law firm during his previous term. in the present case. If. and that it may preventively suspend him for a reasonable period. for purposes provided for by law. Provincial Board of Nueva Ecija. Petitioner argues that.

E. Thus. that is.E. including stipulations now alleged to be prejudicial to the city government. is still a good law. As held in Salalima. petitioner already acceded to the terms of the contract. might have been committed in signing the subject contract.E. Zuellig.E. 10. The ruling now is limited to the question of whether or not he may be held administratively liable therefor. except that it must be prior to said date. Sept. although signed on May 7. supra at 115) The above ruling in Salalima applies to this case. reckoned from the date of the official’s reelection. during petitioner’s second term. It hardly matters that the deliveries under the contract are supposed to have been made months later. wherein deliveries of the asphalt under the contract with F. Our ruling in this case. is to be made effective only during his present term. his signing of the contract with F. Guingona. may not be taken to mean the total exoneration of petitioner for whatever wrongdoing. (Garcia v.) (Salalima v. [Quisumbing]) 284. any culpability petitioner may have in signing the contract already became extant on the day the contract was signed. recommending authority. Such a rule is not only founded on the theory that an official’s reelection expresses the sovereign will of the electorate to forgive or condone any act or omission constituting a ground for administrative discipline which was committed during his previous term. The assailed retainer agreement in Salalima was executed sometime in 1990. However. 1998. His second term may thus be devoted to defending himself in the said cases to the detriment of public service x x x. in factual terms. The agreement between petitioner (representing Cebu City) and F. during petitioner’s prior term. Petitioner cannot anymore be held administratively liable for an act done during his previous term. Governor Salalima was reelected in 1992 and payments for the retainer continued to be made during his succeeding term. if any. qualified in Aguinaldo insofar as criminal cases are concerned. Mojica. We may add that sound policy dictates it. Zuellig was perfected on the date the contract was signed. “The rule adopted in Pascual.determine. this should not prejudice the filing of any case other than administrative against petitioner. 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. Zuellig and the payments therefor were supposed to have commenced on September 1998. the extent of this knowledge. 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) appointing authority. 1999. We fail to see any difference to justify a valid distinction in the result. during petitioner’s prior term. At that moment.” (Emphasis added. Such an undertaking will obviously be impossible. and . Our rulings on the matter do not distinguish the precise timing or period when the misconduct was committed. and it is our considered view that he may not. respondents argue that the contract. To rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and his political enemies. 314 SCRA 207. 2nd Div. This situation is no different from the one in the present case. While petitioner can no longer be held administratively liable for signing the contract with F. Zuellig. What are the situations covered by the law on nepotism? Held: Under the definition of nepotism. chief of the bureau or office. however.

E. April 29.” “[T]he term of an office must be distinguished from the tenure of the incumbent. in which event the employment or retention therein of both husband and wife may be allowed. or the person exercising immediate supervision over the appointee. 292) 286. 770 [1955]). Held: In the law of public officers. Chap. Dec. Pedro O. No.R. 7. 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. the interval between the start of the term and the actual qualification of the appointee must be counted against the latter. and (d) members of the Armed Forces of the Philippines. 13. contracts marriage with someone in the same office or bureau. En Banc [Pardo]) 288. The tenure represents the term during which the incumbent actually holds the office. G. Dacoycoy. Bk. Clearly. Gaminde v. V. What is the hold-over doctrine? What is its purpose? . and fixes the interval after which the several incumbents shall succeed one another. (CSC v. there are four situations covered. the date of the adoption of the 1987 Constitution. The term of office is not affected by the hold-over. Subtitle A. In the last two mentioned situations. The rules on nepotism shall likewise not be applicable to the case of a member of any family who. En Banc [Pardo]) 287.d) person exercising immediate supervision over the appointee. No. 1999. The term means the time during which the officer may claim to hold office as of right. 135805. 140335. (Thelma P. irrespective of the variations in the dates of appointments and qualifications of the appointees. Held: In Republic v. In case of a belated appointment or qualification.” Consequently. 13. G. Dec. in order that the expiration of the first terms of seven. 59. the terms of the first Chairmen and Commissioners of the Constitutional Commissions under the 1987 Constitution must start on a common date. En Banc [Pardo]) 285. G. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent.R. (b) teachers. What are the exemptions from the operation of the rules on nepotism? Ans. Discuss the operation of the rotational plan insofar as the term of office of the Chairman and Members of the Constitutional Commissions is concerned. No. after his or her appointment to any position in an office or bureau. both indispensable to its workability: (1) that the terms of the first three (3) Commissioners should start on a common date. it is immaterial who the appointing or recommending authority is. COA. we said that “the operation of the rotational plan requires two conditions. (Sec. 2000.” (Thelma P. 2000.O. (c) physicians. five and three years should lead to the regular recurrence of the two-year interval between the expiration of the terms. 140335. 1987.: The following are exempted from the operation of the rules on nepotism: (a) persons employed in a confidential capacity. 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. Title I. To constitute a violation of the law. Distinguish “term” of office from “tenure” of the incumbent. Imperial (96 Phil. Applying the foregoing conditions x x x.R. and (2) that any vacancy due to death. No. COA. there is a settled distinction between “term” and “tenure. Gaminde v. resignation or disability before the expiration of the term should only be filled only for the unexpired balance of the term.

” This rule is demanded by the “most obvious requirements of public policy. It can be [Puno]) oral. The last one is required by reason of Article 238 of the Revised Penal Code.]) 289. 284 SCRA 276. As long as the resignation is clear. The rule is settled that unless “holding over be expressly or impliedly prohibited. (Sangguniang Bayan of San Andres. (Lecaroz v. otherwise it is reasonable to assume that the law-making body favors the same. What is resignation? What are the requisites of a valid resignation? Held: 1. March 2. the incumbent may continue to hold over until someone else is elected and qualified to assume the office. Indeed. express or implied. 2nd Div. 1999. renounce. by statute. (b) an act of relinquishment. and relinquish the office and the acceptance by competent and lawful authority. [Bellosillo]) 2. of the intention to surrender. Hernandez. the purpose is to prevent a hiatus in the government pending the time when the successor may be chosen and inducted into office. Nov. The legislative intent of not allowing holdover must be clearly expressed or at least implied in the legislative enactment. To constitute a complete and operative resignation from public office. Desierto. 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. 146710-15. Resignation x x x is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment (Gonzales v. but the present incumbent will carry over until his successor is elected and qualified. Sandiganbayan. 305 SCRA 397. 227 SCRA 728. 1998) 2. It can be express. It can be implied. the office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it. March 25. from a failure to elect or a refusal or neglect to qualify. 16.” Otherwise stated. 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. The validity of a resignation is not governed by any formal requirement as to form. with the intention of terminating his possession and control thereof. What is abandonment of an office? resignation? What are its requisites? How is it distinguished from Held: Abandonment of an office has been defined as the voluntary relinquishment of an office by the holder. the office would be vacant and the public service entirely suspended. for without it there must frequently be cases where. 2001. 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. This is founded on obvious considerations of public policy. and (c) an acceptance by the proper authority. Catanduanes v. 2 SCRA 228 [1961]). Jr.R. It can be written. the law abhors a vacuum in public offices. even though it be beyond the term fixed by law.Held: 1. En Banc [Davide. It is an expression of the incumbent in some form. CA. for any period of time. 1993. Indeed. Absent an express or implied constitutional or statutory provision to the contrary. wholly vacant or unoccupied by one lawfully authorized to exercise its functions. abandonment of . Where this provision is found. G. and courts generally indulge in the strong presumption against a legislative intent to create. a condition which may result in an executive or administrative office becoming. Nos. Jan. there must be: (a) an intention to relinquish a part of the term. Valencia. 11. it must be given legal effect. an officer is entitled to stay in office until his successor is appointed or chosen and has qualified. 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. en Banc 290. (Galarosa v. (Estrada v.

The Chairman. (Sangguniang Bayan of San Andres. first. X x x . an overt or “external” act by which the intention is carried into effect. 16. Petitioner is not a Career Executive Service (CES). Therefore. carried out during the election period. Held: Petitioner’s posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of the COMELEC. petitioner does not enjoy security of tenure as Director IV. Contrary to petitioner’s allegation.office is a species of resignation. Its concomitant effect is that the former holder of an office can no longer legally repossess it even by forcible reoccupancy. In the exercise of this power. Thus. and not possessed of the necessary qualifications to hold the position of Director IV. 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. acting as a collegial body. an intention to abandon and. there are two essential elements of abandonment. Clear intention to abandon should be manifested by the officer concerned. the COMELEC did in fact issue COMELEC Resolution No. petitioner insists that the COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the election period. can authorize such reappointment. 3300 dated November 6. We have ruled. second. Moreover. as a prohibited act under Section 261 (h) of the Omnibus Election Code x x x. 284 SCRA 276. abandonment is a voluntary relinquishment through nonuser. the Chairman is not required by law to secure the approval of the COMELEC en banc. Abandonment springs from and is accompanied by deliberation and freedom of choice. Catanduanes v. Moreover. Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the Law Department. and consequently he has full authority to exercise all the powers of that office for so long as his ad interim appointment remains effective. 1998) 291. that Benipayo is the de jure COMELEC Chairman. however. as the Chief Executive of the COMELEC. Petitioner further argues that only the COMELEC. Petitioner’s appointment papers x x x indisputably show that she held her Director IV position in the EID only in an acting or temporary capacity. the failure to perform the duties pertaining to the office must be with the officer’s actual or imputed intention to abandon and relinquish the office. petitioner assails her reassignment. Jan. Obviously. exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. petitioner has no legal basis in claiming that her reassignment was contrary to the Civil Service Law. CA. is expressly empowered on his own authority to transfer or reassign COMELEC personnel in accordance with the Civil Service Law. X x x Xxx Having been appointed merely in a temporary or acting capacity. 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. it results from a complete abandonment of duties of such continuance that the law will infer a relinquishment. Such intention may be express or inferred from his own conduct. petitioner maintains that a reassignment without her consent amounts to removal from office without due process and therefore illegal. X x x. while resignation in general is a formal relinquishment. X x x Still. 2000. and neither does she hold Career Executive Service Eligibility. Abandonment of an office is not wholly a matter of intention.

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. in COMELEC Resolution No. refers only to COMELEC field personnel and not to head office personnel like the petitioner. 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. On the third year of her detention the city government lifted her suspension. April 2. Subtitle C. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry the concurrence of the COMELEC as a collegial body. in a de jure capacity. 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. which finally resulted in his acquittal for lack of evidence? EUSEBIA R. an approval to effect transfers and reassignments of personnel. 380 SCRA 49. The COMELEC en banc cannot arrogate unto itself this power because that will mean amending the Revised Administrative Code. Benipayo’s order designating Cinco Officer-in-Charge of the EID is legally unassailable. En Banc [Carpio]) 292. With her meager income she was the lone provider for her children. Thus. She was forced to seek recourse in the Civil Service Commission which ordered her immediate reinstatement with back wages from 19 October 1994. GALZOTE was employed as a lowly clerk in the service of the City Government of Makati City. Under the Revised Administrative Code (see Section 7 [4]. 3300. the date when she presented herself for reassumption of duties but was turned back by the city government. As she drew near her vindication she never did expect the worst to come to her. 3300 should be interpreted for what it is. The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel pursuant to COMELEC Resolution No. 2002. COMELEC Resolution No. The person holding that office. (Matibag v. Resolution No. Upon her acquittal for lack of evidence and her release from detention she was denied reinstatement to her position. The COMELEC en banc. Chapter 2. Book V of the Revised Administrative Code). up to the time of her actual reinstatement. 3300 to require such concurrence will render the resolution meaningless since the COMELEC en banc will have to approve every personnel transfer or reassignment. dropped her from the rolls without prior notice and without her knowledge. is Benipayo. an act the COMELEC en banc cannot legally do. . 3300. much less gave her an opportunity to forthwith correct the omission of an application for leave of absence belatedly laid on her. 3300. the COMELEC Chairman is the sole officer specifically vested with the power to transfer or reassign COMELEC personnel. Interpreting Resolution No. approved the transfer or reassignment of COMELEC personnel during the election period. 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. Benipayo’s order reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code. For the same reason.Xxx The proviso in COMELEC Resolution No. Throughout her ordeal she trusted the city government that the suspension imposed on her was only until the final disposition of her case. Benipayo. requiring due notice and hearing before any transfer or reassignment can be made within thirty days prior to election day. The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. making the resolution utterly useless. without need of securing a second approval from the COMELEC en banc to actually implement such transfer or reassignment.

Sec.” 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. Galzote and the automatic leave of absence espoused by the Civil Service Commission. Indeed. Encapsulated. Petitioner would have private respondent declared on AWOL and faults her for failing to file an application for leave of absence under Secs. 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.Xxx Plainly. 41. 1999) of the CSC Rules and rejects the CSC’s ruling of an “automatic leave of absence for the period of her detention” since the “current Civil Service Law and Rules do not contain any specific provision on automatic leave of absence. 63 of Rule XVI. Art. i. private respondent did not have the least intention to go on AWOL from her post as Clerk III of petitioner. 3. Moreover. (3) whether she may be deemed to have abandoned her position. At the very least. 52 of Rule XVI. if acquitted of the criminal charge. and the City Government’s insistence that the lowly clerk should have still gone through the formalities of applying for leave despite her detention. a dilemma concerning the legal status and implications of its suspension of private respondent Eusebia R. She did not have to apply for leave of absence since she was already suspended by her employer until her case would be terminated. The records clearly show that she had been advised three (3) days after her arrest. and the suspension order couched in simple language that she was being suspended until the final disposition of her criminal case. 91-1631 dated 27 December 1991. 1998 and 14. We have done justice to the workingman in the past. 41. the requirement that private respondent should have filed an application for leave of absence in proper form. This act of petitioner indubitably recognized private respondent’s predicament and thus allowed her to forego reporting for work during the pendency of her criminal case without the needless exercise of strict formalities. since she was for all practical purposes incapacitated or disabled to do so. s. private respondent’s substantial compliance with the standing rules. 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. there was no reason to. the arrangement bound the City Government to allow private respondent to return to her work after the termination of her case. as amended by CSC MC Nos. No. XIII. (b) whether due process had been observed before she was dropped from the rolls. of which petitioner had actual notice. Leave of Absence. or on 9 September 1991. 1. s. s. that petitioner City government of Makati City had placed her under suspension until the final disposition of her criminal case. hence. 20 (Now Sec. 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. 91-1631 dated 27 December 1991. the case of petitioner City Government of Makati City revolves around a rotunda of doubt. 18) Xxx As may be gleaned from the pleadings of the parties. as in fact it was not required. not entitled to reinstatement with back salaries for not having filed a formal application for leave.. The instant case is therefore a dispute between. the issues are: (1) whether private respondent Eusebia R.. as amended by CSC MC No. par.e. Sec. Against this concern is the punctilious adherence to technicality. II. and. This pledge sufficiently served as legitimate reason for her to altogether dispense with the formal application for leave. of Res. for AWOL means the employee leaving or abandoning his post without justifiable reason and . Leave of Absence. at its worst. Galzote may be considered absent without leave. 1998) and 35 (Now Sec. 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. No. Art. of Res.

not severed. before depriving her of her legitimate right to return to her position.without notifying his employer. 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.. Consequently. in the meantime.” Hence.R. thus leaving her no time to attend to the formality of filing a leave of absence. 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. Municipality of Malabang v. to advise her that it was still necessary – although indeed unnecessary and a useless ceremony – to file such application despite the suspension order. This construction of the order of suspension is actually more consistent with logic as well as fairness and kindness to its author. not in atrocity. Patria potestas in piatate debet. Paternal power should consist or be exercised in affection. private respondent would have lost no time in filing such piece of document. 5 September 1997. non in atrocitate. a void act though in law a mere scrap of paper nonetheless confers legitimacy upon past acts or omissions done in reliance thereof (De Agbayani v. No. NLRC. 38 SCRA 429. consistere. 435). Hence. in patria potestas. As competence on the part of the MPO is presumed. supra. 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. the existence of a statute or executive order prior to its being adjudged void is an operative fact to which legal consequences are attached (De Agbayani. Under the circumstances private respondent was in. 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. 25 February 1967. 19 SCRA 426. 278 SCRA 716). the idea of a suspended employer-employee relationship is widely accepted in labor law to account for situations wherein laborers would have no work to perform for causes not attributable to them (see e. G.R No. Significantly.g. any error on his part should not prejudice private respondent. 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. L-21696. the Municipal Personnel Officer acted with competence. and when finally able to do so. Court of Industrial Relations. she presented herself to the Municipal Personnel Officer of petitioner City Government to report for work. No. This fact is evident from the instant petition itself and its attachments x x x. It would indeed be ghastly unfair to prevent private respondent from relying upon the order of suspension in lieu of a formal leave application. In placing private respondent under suspension until the final disposition of her criminal case. prudence would have dictated petitioner. 28 March 1969. the MPO. G. Hence. Benito. Visayan Stevedore Transportation Company v. 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. In the instant case. Moreover. 27 SCRA 545). Tomas Lao Construction v. For as we have held. much less retroactively apply such nullification to deprive private respondent of a compelling and valid reason for not filing the leave application. 28113. we certainly cannot nullify the City Government’s order of suspension. right after her release from detention. We do not agree. private respondent had a valid reason for failing to report for work as she was detained without bail. 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. 29 April 1971. more particularly the incumbent city executive. G. 231127. 116781. her ordeal in jail began on 6 September 1991 and ended only after her acquittal. Philippine National Bank. as we have no reason to do so. p.R. . 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. Certainly. No.

35 is now Sec. IX-B. petitioner must assume full responsibility for the consequences of its own act.” (Bk. require an approved leave of absence to avoid being an AWOL. with or without pay. progressiveness and courtesy in the civil service” (Const. Undoubtedly. 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..At any rate. and assumed that when the criminal case would be settled she could return to work without need of any prior act. as may be provided by law and the rules and regulations of the Civil Service Commission in the interest of the service. 63 as amended by CSC MC Nos. Secs. and Sec. the Code specifically vests the CSC to ordain – 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. he should be made to answer for the mix-up of private respondent as regards the leave application. Sec. X x x Xxx As properly noted. 20 of the Civil Service Rules is now Sec. after all. 35 and 63. 41. 52 of Rule XVI. integrity. these provisions have been amended so that Sec. 292 and Other Pertinent Civil Service Laws which it has several times amended through memorandum circulars. s. Sec. and enforce rules and regulations for carrying into effect the provisions of the Civil Service Law and other pertinent laws. the Administrative Code of 1987 further empowers the CSC to “prescribe. 20 and 35 to debunk the CSC ruling of an automatic leave of absence. At the very least. issued barely three (3) days from the date of her arrest. s. 3. integrate all human resources development programs for all levels and ranks. 60. as well as Secs. responsiveness. However. construed against the one responsible for the confusion. on Leave of Absence. 3) and “strengthen the merit and rewards system. 91-1631 dated 27 December 1991 as amended by CSC MC No. otherwise stated. amend. 20 and 52. Significantly. Art. 41. Pursuant thereto the CSC promulgated Resolution No. s. before exceeding thirty (30) days of absence in order to avoid from being dropped from the rolls. other means of seeking and granting an approved leave of absence. United States of America. The CSC is the constitutionally mandated central personnel agency of the Government tasked to “establish a career service and adopt measures to promote morale. 288 SCRA . Ch. or should be. the CSC was only interpreting its own rules on leave of absence and not a statutory provision (As a matter of fact. one of which is the CSC recognized rule of automatic leave of absence under specified circumstances.” (Ibid. v. I (A). Xxx As a general rule. – Officers and employees in the Civil Service shall be entitled to leave of absence. There are. V. 1998. 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.) Besides. It devotes Rule XVI to leaves of absence. of Resolution No. formalities and all. Petitioner City Government relies upon Secs. hence. Sec. statements are. efficiency. 1999. 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. and institutionalize a management climate conducive to public accountability. 1998 and 14. 91-1631 dated 27 December 1991 entitled Rules Implementing Book V of Executive Order No. the CSC like any other agency has the power to interpret its own rules and any phrase contained in them (Norwegian Nitrogen Products Co. 12) and for matters concerning leaves of absence. Leave of absence. It is a fact that she relied upon this order.

citing Nicholas v. an intention to abandon and second. such a surrender will not be deemed an abandonment and the officer may recover the effect.2d 633. Abandonment of duties is a voluntary act (Ibid.R.J. 287 Ala. U. Abandonment may also result from an acquiescence by the officer in his wrongful removal or discharge.. State ex rel. 42 S. Moore. Feb. a person holding a public office may abandon such office by nonuser or acquiescence (Ibid.J. justice would have been done where it is truly due. 2002. the public officer vacates it in deference to the requirements of a statute which is afterwards declared unconstitutional. 257 U. 100. Strickland. 19 Am. A Treatise on the Law of Public Offices and Officers.L. therefore. it springs from and is accompanied by deliberation and freedom of choice (Jorge v. San Antonio. 178 So.S. 325. Indeed the government cannot be left in the lurch. There must be a complete abandonment of duties of such continuance that the law will infer a relinquishment (67 C. 351 SCRA 659. Mayor.I. 259 Ala. Rep. De Guzman.. Catanduanes v. supra). Aguirre. 65 So. an overt or “external” act by which the intention is carried into effect (67 C. 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. 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). Heroux. while desiring and intending to hold the office. App. 66 L. citing Turnipseed v. citing Rainwater v.Ct. 812 [1933]) with its interpretation significantly becoming part of the rules themselves.. Hudson. 981) Generally speaking. 429. In fact only from an enlightened corps of government workers and an effective CSC grows the professionalization of the bureaucracy. Sindiong. Officers Sec. 371 [1926]). 250 So. 100. However.S.. Feb. for instance. 221). nonperformance of the duties of an office does not constitute abandonment where such nonperformance results from temporary disability or from involuntary failure to perform (67 C.S. but neither could we decree that government personnel be separated from their jobs indiscriminately regardless of fault. 121 A.294. Catanduanes v. 491). 279. Our final point. two essential elements of abandonment: first. Civil Service Commission. 658 [1948]). 10 SCRA 331 [1964]. Court of Appeals. after a summary removal. 2001. There are. In order to constitute abandonment of an office. State Oil and Gas Bd. En Banc [Bellosillo]) 293.W. 237 Ala.2d 178. 1890 edition. 78).S. 376 SCRA 248. 15) (Canonizado v. Ed. 665-668. citing Herbert v. for that matter. 100.. 796. the constitutional mandates of the Civil Service Commission.J. Cl. 482. (Mechem. 6. What is abandonment of office? What are its essential elements? Held: Abandonment of an office is the voluntary relinquishment of an office by the holder. citing Doris v. 7. 133). 71 R.. 49 Phil. Where. (City Government of Makati City v.. Court of Appeals. 50 Miss. an unreasonable delay by an officer illegally removed in taking steps to vindicate his rights may constitute an abandonment of the office (Ibid. civil servants who are found illegally dismissed or retrenched are entitled to full pay for the period of their separation. 220 S. it must be total and under such circumstances as clearly to indicate an absolute relinquishment (Airoso v. 484. 41). citing Teves v. 77 Led.2d 597. Non-user refers to a neglect to use a right or privilege or to exercise an office (Sangguniang Bayan of San Andres. with the intention of terminating his possession and control thereof (Sangguniang Bayan of San Andres. Comm. and with no willful desire or intention to abandon it. citing Steingruber v. 284 SCRA 276 [1998]). 71. En Banc [Gonzaga-Reyes]) . 81 Ohil. citing Cosby v. 47 A. Sec.S. p. 77. The fine line between these concerns may be difficult to clearly draw but if we only exerted extra effort to rebel against the allure of legal oversimplification. Officers Sec. Ct. 15.

p. RA 8551 prohibits any personnel of the IAS from sitting in a committee charged with the task of deliberating on the appointment. In fact. concurrently. 267). The removal of petitioners from their positions by virtue of a constitutionally infirm act necessarily negates a finding of voluntary relinquishment. 15. It is a well-settled rule that he who. En Banc [Gonzaga-Reyes]) 295. Canonizado.) There is no question that the positions of NAPOLCOM Commissioner and Inspector General of the IAS are incompatible with each other. 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. the incompatibility of duties rule never had a chance to come into play for petitioner never occupied the two positions. 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. they maintain that Canonizado’s initiation and tenacious pursuance of the present case would belie any intention to abandon his former office. 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. while occupying one office. to reiterate. or assignment of any PNP personnel. (Ibid. ipso facto vacates the first office and his title is thereby terminated without any other act or proceeding (Mechem.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. Aguirre. Thus. whereas the NAPOLCOM has the power of control and supervision over the PNP. when Canonizado was appointed as Inspector General x x x he had ceased to discharge his official functions as NAPOLCOM Commissioner. we struck down the abovequoted provision for being violative of petitioner’s constitutionally guaranteed right to security of tenure. . A Treatise on the Law of Public Offices and Officers. 665-668. of Commissioner and Inspector General. 351 SCRA 659. However. Canonizado harbored no willful desire or intention to abandon his official duties. Public policy considerations dictate against allowing the same individual to perform inconsistent and incompatible duties (Ibid. Petitioners assert that Canonizado should not be faulted for seeking gainful employment during the pendency of this case. The incompatibility contemplated is not the mere physical impossibility of one person’s performing the duties of the two offices due to a lack of time or the inability to be in two places at the same moment. nor discharged their respective functions. By accepting another position in the government during the pendency of a case – brought precisely to assail the constitutionality of his removal . Feb. As pointed out by respondents.294. (Canonizado v. First of all. promotion. Canonizado was forced out of his first office by the enactment of Section 8 of RA 8551. accepts another incompatible with the first. 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.). Thus. 2001. a few weeks after RA 8551 took effect x x x petitioners instituted the current action x x x assailing the constitutionality of certain provisions of said law. the 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 did not voluntarily leave his post as Commissioner. Thus. What is the effect of acceptance of an incompatible office to a claim for reinstatement? Held: The next issue is whether Canonizado’s appointment to and acceptance of the position of Inspector General should result in an abandonment of his claim for reinstatement to the NAPOLCOM. Furthermore. X x x. 1890 edition. together with petitioners x x x lost no time disputing what they perceived to be an illegal removal.

there is no debate that he does not have blanket authority to do so. Surely. either of which are sufficient to justify Canonizado’s acceptance of the position of Inspector General. held a second office during the period that his appeal was pending. unless there is valid cause to do so. Furthermore. Civil Service Commission. 17 [1960]) and Gonzales (Gonzales v. but also a right to lead a useful and productive life. 232 SCRA 388. 2 SCRA 228 [1961]) cases. Civil Service Commission. Section 10 of the same rule provides: Sec. it is the CSC that is authorized to recall an appointment initially approved. 2001. it was petitioner who acted in undue haste to remove the private respondents without regard for the simple requirements of due process of law. There was no previous notice.” (Mauna v. 248 [1992]) Petitioner admits that his very first official act upon assuming the position of town mayor was to issue Office Order No. not just an equitable. Hernandez. 237 SCRA 184. A Contrary ruling would deprive petitioner of his right to live. like the petitioners in the above mentioned cases. right to the position. “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. Canonizado. 208 SCRA 240. 107 Phil. (Aquino v. This right is protected not only by statute. (Canonizado v. Feb. which right cannot be taken away by either revocation of the appointment. he should first resign as Inspector General of the IAS-PNP. 95-01 which recalled the appointments of the private respondents. but by an unconstitutional provision of law. this selfless and noble aspiration deserves to be placed on at least equal footing with the worthy goal of providing for oneself and one’s family. 398 [1994]) Moreover. Canonizado was impelled to accept this subsequent position by a desire to continue serving the country. and if the appointee has assumed the duties of the position. Neither can he question the CSC’s jurisdiction to affirm or revoke the recall. Civil Service Commission. but only when such appointment and approval are proven to be in disregard of applicable provisions of the civil service law and regulations (Debulgado v.” Thus. much less a hearing accorded to the latter. An appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its issuance by the appointing authority. May the appointment of a person assuming a position in the civil service under a completed appointment be validly recalled or revoked? Held: It has been held that upon the issuance of an appointment and the appointee’s assumption of the position in the civil service. 15. 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. Aguirre. in whatever capacity. Moreover. he shall be entitled to receive his salary at once without awaiting the approval of his . before Canonizado can re-assume his post as Commissioner. While he argues that the appointing power has the sole authority to revoke said appointments. Gimenez. 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. or by removal. as held in previous cases. 351 SCRA 659.Xxx As in the Tan (Tan v. provided that there is previous notice and hearing. Rule V. it is well-settled that the person assuming a position in the civil service under a completed appointment acquires a legal. Canonizado was compelled to leave his position as Commissioner. However. En Banc [Gonzaga-Reyes]) 296. which contemplates not only a right to earn a living. 10. but by the Constitution as well. not by an erroneous decision. Clearly. 200 [1994]). As stated in the Comment filed by petitioners.

(g) Violation of the existing collective agreement between management and employees relative to promotion.” specifically those made within two (2) months immediately prior to the next presidential elections. Rasul (200 SCRA 685 [1991]) we said: . Discuss Abolition of Office? Held: The creation and abolition of public offices is primarily a legislative function. "x x x the rule that outlaws unconsented transfers as anathema to security of tenure applies only to an officer who is appointed . COMELEC. v. Where one office is abolished and replaced with another office vested with similar functions. the same may be recalled on any of the following grounds: (e) Non-compliance with the procedures/criteria provided in the agency’s Merit Promotion Plan. the appointments of the private respondents may only be recalled on the above-cited grounds. 653 citing Ibanez v. x x x" The guarantee of security of tenure under the Constitution is not a guarantee of perpetual employment. But where it is the law-making authority itself which furnishes the ground for the transfer of a class of employees. that the constitutional prohibition on socalled “midnight appointments. 1967. the abolition is a legal nullity. 19 SCRA 1002. 2000. Lopez (31 SCRA 637. in U. 2001. G. 353 SCRA 94. the only reason advanced by the petitioner to justify the recall was that these were “midnight appointments. When may unconsented transfers be considered anathema to security of tenure? Held: As held in Sta.to a particular station. (f) Failure to pass through the agency’s Selection/Promotion Board. or (h) Violation of other existing civil service law. 1012 and Section 12 of the Tax Code). not for political or personal reasons. Jr. (Agripino A. 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. Feb. 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. in order for the abolition to be valid. Board of Regents v.P. However. L- 26558. Section 20 of Rule VI also provides: Sec. De Guzman. Court of Appeals. An abolition of office connotes an intention to do away with such office wholly and permanently. however. 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. rules and regulations. Thus. July 19. What it seeks to prevent is capricious exercise of the power to dismiss. such as the lack of funds or in the interest of economy. April 27. as the word "abolished" denotes. 28. Commission on Elections. applies only to the President or Acting President. Notwithstanding the initial approval of an appointment. En Banc [Purisima]) 298. And yet. No. 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. it must be made in good faith. Accordingly. or in order to circumvent the constitutional security of tenure of civil service employees. et al. (De Rama v. 20.. In no case shall an appointment take effect earlier than the date of its issuance. En Banc [Ynares-Santiago]) 297. The appointment shall remain effective until disapproved by the Commission.R. Maria v. 129118.not merely assigned .” The CSC correctly ruled.appointment by the Commission.

et al. Hon. 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. It involves a reduction of personnel. Aguirre. (Alexis C. 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. Canonizado... 112 SCRA 294 [1982]). a reorganization is carried out in ‘good faith’ if it is for the purpose of economy or to make the bureaucracy more efficient. security of tenure would not be a Chinese wall. 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. if the "abolition" which is nothing else but a separation or removal. it may result in the loss of one's position through removal or abolition of an office. Reorganization takes place when there is an alteration of the existing structure of government offices or units therein. (Alexis C. or otherwise not in good faith. G. Canonizado. no dismissal (in case of dismissal) or separation actually occurs because the position itself ceases to exist. authority and responsibility between them. no valid abolition takes place and whatever abolition done is void ab initio.R. this Court has had the occasion to clarify that: “As a general rule. Oct. v.R. 2000. in this case. G. Aguirre. it must also pass the test of good faith. Arizabal (186 SCRA 108 [1990]). Arizabal. or where claims of economy are belied by the existence of ample funds. 25. no valid "abolition" takes place and whatever "abolition" is done. The above notwithstanding. En Banc [Gonzaga-Reyes]) Jan.” (176 SCRA 84) (Larin v. No. And in that case the security of tenure would not be a Chinese wall. in Dario v. 1990. We hereby apply the principle enunciated in Cezar Z. and assuming that the abolition of the position of the PGH Director and the creation of a UP-PGH Medical Center Director are valid. June 4. What is reorganization? When is it valid? When is it invalid? Held: 1. 1997) . En Banc [Gonzaga-Reyes]) 299. 133132. or abolition thereof by reason of economy or redundancy of functions. Antonio V.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.R. Alexander P. Mison. is void ab initio. 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. 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. consolidation of offices. 133132. In that event no dismissal or separation actually occurs because the position itself ceases to exist. Mison (176 SCRA 84 [1989]): x x x As a general rule. Be that as it may. This was also our ruling in Guerrero v. v. et al. In that event. Alexander P. is done for political reasons or purposely to defeat security of tenure. While the President’s power to reorganize can not be denied. Hon. Executive Secretary. Naturally. the abolition lacks good faith (Jose L. However. a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. And in that case. Jan. 81928. 25. Salvador M. No. 2000. Hon. et al. However. Alba. 186 SCRA 108 [1990]). Dario v. for a reorganization to be valid. Be that as it may. or otherwise not in good faith. G. laid down in Dario v. et al. 16. if the abolition which is nothing else but a separation or removal. 2. There is an invalid "abolition" as where there is merely a change of nomenclature of positions. Thus. No. 280 SCRA 713. including the lines of control. Hon. This is because where the abolished office and the offices created in its place have similar functions. Guerrero v. is done for political reasons or purposely to defeat security of tenure. 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.

under the provisions of Republic Act No. Executive Secretary. 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. 2. the process of registration. No. Larin v. are crafted to effectively insulate such so cherished right from ravishment and preserve the democratic institutions our people have. the right of a citizen to vote is necessarily conditioned upon certain procedural requirements he must undergo: among others. 3) Where incumbents are replaced by those less qualified in terms of status of appointment. which statutes for all intents and purposes. 2001. as to the substantive aspect. 6656. R. at present. To be sure. 355 SCRA 318. guarded against the spoils of opportunism. Section 1. statute books and other repositories of law. and its substantive and procedural requirements. Thus. the exercise of the right of suffrage. in addition to the minimum requirements set by the fundamental charter. OR OTHER SUBSTANTIVE REQUIREMENT SHALL BE IMPOSED ON THE EXERCISE OF SUFFRAGE. voters are prohibited from exhibiting the contents of their official ballots to other . Specifically. SUFFRAGE MAY BE EXERCISED BY ALL CITIZENS OF THE PHILIPPINES NOT OTHERWISE DISQUALIFIED BY LAW. otherwise known as the “Voter’s Registration Act of 1996. performance and merit.” (Akbayan-Youth v. 2) Where an office is abolished and another performing substantially the same functions is created. 4) Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices. a citizen in order to be qualified to exercise his right to vote. the right of suffrage. 16. is obliged by law to register. Discuss the Right of Suffrage. COMELEC.” As to the procedural limitation. the right of suffrage x x x is not at all absolute.A. Needless to say. 5) Where the removal violates the order of separation provided in Section 3 hereof. Article V of the Constitution provides: “SECTION 1. NO LITERACY. En Banc [Buena]) 302. Oct. for so long. Discuss the reason behind the principle of ballot secrecy. 8189. Thus. Held: In a representative democracy such as ours. 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. What are the circumstances evidencing bad faith in the removal of employees as a result of reorganization and which may give rise to a claim for reinstatement or reappointment)? Held: 1) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned. debauchery and abuse. WHO ARE AT LEAST EIGHTEEN YEARS OF AGE. 280 SCRA 713. (Sec. is subject to existing substantive and procedural requirements embodied in our Constitution. Mar. PROPERTY. as in the enjoyment of all other rights. 26. 1997) ELECTION LAWS 301. 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.300. although accorded a prime niche in the hierarchy of rights embodied in the fundamental law.

Discuss the meaning and purpose of residency requirement in Election Law. as follows: X x x [T]he place “where a party actually or constructively has his permanent home. 1999. The meaning and purpose of the residency requirement were explained recently in our decision in Aquino v. Comelec (248 SCRA 400. (ABS-CBN Broadcasting Corporation v. En Banc [Panganiban]) 3. Clearly. Generally. 9. Election laws must be liberally construed to give effect to the popular mandate. and (3) has registered as voter in the city during the period required by law.R. 133944. the provincial capitol being located therein. likewise. Furthermore. 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.” 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. Oct. The manifest purpose of this deviation from the usual conceptions of residency in law as explained in Gallego v.” where he. difficulties. 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. however.persons. the contents of the official ballot are not actually exposed. it enables the electorate to evaluate the office seekers’ qualifications and fitness for the job they aspire for. or from putting distinguishing marks thereon so as to be identified. in requiring candidates to have a minimum period of residence in the area in which they seek to be elected. (Torayno. 28. together with his family. narrowly tailored countermeasures may be prescribed by the Comelec. (2) had actually held office there during his three terms as provincial governor of Misamis Oriental. no matter where he may be found at any given time. but voluntary. Indeed.” Such provision is aimed at excluding outsiders “from taking advantage of favorable circumstances existing in that community for electoral gain. which is to place through the assent of voters those most cognizant and sensitive to the needs of a particular district. 337 SCRA 574. (Marcita Mamba Perez v. for the purpose of assuring that the votes have been cast in accordance with the instructions of a third party. in order to give candidates the opportunity to be familiar with the needs. be achieved merely through the voters’ verbal and confidential disclosure to a pollster of whom they have voted for. The Constitution and the law requires residence as a qualification for seeking and holding elective public office.R. Held: 1. G. 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. 2000. Jan. he could not be deemed “a stranger or newcomer” when he ran for and was overwhelmingly voted as city mayor.. aspirations. G. No. eventually intends to return and remain. No. Inasmuch as Vicente Y. En Banc [Mendoza]) 2. if a candidate falls short of the period of residency mandated by law for him to qualify. 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. (1) had actually resided in a house he bought in 1973 in Cagayan de Oro City. v. potentials for growth and all matters vital to the welfare of their constituencies. This result cannot. Sr. so as to minimize or suppress incidental problems in the conduct of exit polls. from making copies thereof. COMELEC. is that to which the Constitution refers when it speaks of residence for the purposes of election law. This purpose is “best met by individuals who have either had actual . the revelation of whom an elector has voted for is not compulsory. Aug. En Banc [Panganiban]) 303. i. 133486. this nonetheless defeats the essence of representation. 2000. COMELEC. without transgressing the fundamental rights of our people. In exit polls.e. 28. While there is nothing wrong with the practice of establishing residence in a given area for meeting election law requirements. Emano has proven that he. his domicile. what is forbidden is the association of voters with their respective votes. COMELEC. Voters may also choose not to reveal their identities. 420-421 [1995]).

residence in the area for a given period or who have been domiciled in the same area either by origin or by choice. the act of registration is an indispensable precondition to the right of suffrage. whenever the evidence of guilt is strong. Quirino (96 Phil. the following persons are disqualified to run in a special election called to fill the vacancy in an elective office. Thus.R. to the incidental yet generally important end. (Marcita Mamba Perez v. in Faypon v. 355 SCRA 318. 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. the lone candidate shall be proclaimed elected to the position by proper proclaiming body of the Commission on Elections without holding the special election upon certification by the Commission on Elections that he is the only candidate for the office and is thereby deemed elected. Proceeding from the significance of registration as a necessary requisite to the right to vote. in the exercise of its inherent police power. 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. En Banc [Mendoza]) 305. COMELEC. For registration is part and parcel of the right to vote and an indispensable element in the election process. may then enact laws to safeguard and regulate the act of voter’s registration for the ultimate purpose of conducting honest. (Akbayan-Youth v. and . 9. Mar. 2001. 294 [1954]). En Banc [Buena]) 306. 28. G. 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. Thus. 133944. in the absence of any lawful ground to deny due course or cancel the certificate of candidacy in order to prevent such proclamation. to wit: a) Any elective official who has resigned from his office by accepting an appointive office or for whatever reason which he previously occupied but has caused to become vacant due to his resignation.” Section 3 thereof provides that “the lone candidate so proclaimed shall assume office not earlier than the scheduled election day. Held: Stated differently. v. Who are disqualified to run in a special election under the Lone Candidate Law? Answer: Section 4 of the Lone Candidate Law provides that “In addition to the disqualifications mentioned in Sections 12 and 68 of the Omnibus Election Code and Section 40 of Republic Act No. 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. 8295. 2000. 1997. Sr. 337 SCRA 574.” 307. COMELEC. COMELEC.” (Torayno. 1999. En Banc [Panganiban]) 304. orderly and peaceful election. otherwise known as the Local Government Code. x x x registration cannot and should not be denigrated to the lowly stature of a mere statutory requirement. Aug. 26. No. Oct. the State undoubtedly. Discuss the nature of Voter’s Registration. 7160. as provided for under Sections 69 and 78 of Batas Pambansa Bilang 881 also known as the Omnibus Election Code. enacted on June 6. What is the Lone Candidate Law? What are its salient provisions? Answer: The Lone Candidate Law is Republic Act No. when there is only one (1) qualified candidate for such position.

2001. All told. intimidates or actually causes. loss or disadvantage to any person or persons aspiring to become a candidate or that of the immediate member of his family. . the votes cast for the substituted candidates shall be considered as stray votes but shall not invalidate the whole ballot. No. Should the votes cast for the substituted candidate be considered votes for the substitute candidate? Answer: Republic Act No. 9006) provides in Section 26 thereof: “any elective official. What is the effect of the filing of certificate of candidacy by elective officials? COMELEC Resolution No. 9006). otherwise known as the Fair Election Act.” Note that Section 67 of the Omnibus Election Code and the first proviso in the third paragraph of Section 11 of Republic Act No. For this purpose. bribes. who has filed a certificate of candidacy for the same or any other office shall not be considered resigned from his office. he cannot be substituted under Section 77 of the Code.A. For if the law did not confine the choice or election by the voters to the duly registered candidates. a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because. If a person was not a candidate. this provision shall not apply. 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. were expressly repealed and rendered ineffective. by Section 14 (Repealing Clause) of The Fair Election Act (R. whether national or Answer: local. and (b) to avoid confusion and inconvenience in the tabulation of the votes cast. (Miranda v.A. The Court has no other choice but to rule that in all instances enumerated in Section 77 of the Omnibus Election Code. he is and was not a candidate at all.R. punishment. provides in Section 12 thereof: “In case of valid substitutions after the official ballots have been printed. 9006. damage. G. Abaya. his honor or property that is meant to eliminate all other potential candidate. July 28. harasses.” 311. Abaya. however. July 28. 136351. 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. the existence of a valid certificate of candidacy seasonably filed is a requisite sine qua non. 136351. for how can a person take the place of somebody who does not exist or who never was. promulgated March 1. coerces. threatens. respectively. torture. inflicts or produces any violence. there might be as many persons voted for as there are voters. No. it is readily understood that the concept of a substitute presupposes the existence of the person to be substituted. implementing the Fair Election Act (R. (Miranda v. That if the substitute candidate is of the same family name. injury. the candidates among whom they are to make the choice.b) Any person who. 8436 which modified said Section 67. at least sixty days before the regular election.R.” 308. No. 1999. 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. if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy. G. 3636. en Banc [Melo]) 310. No. 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. 1999) 309. directly or indirectly.

Thus. 1999. namely. terrorism. G. But we found that petitioner did not allege at all that elections were either not held or suspended. misinform. violence. Jr. 2000. 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. Jr. This is obvious in the first two scenarios. The use of a surname.” In other words. En Banc [Quisumbing]) 314. if elected. fraud or other analogous causes. On the contrary. violence. Neither did he aver that although there was voting. Section 4 of RA 7166 provides that the Comelec sitting en banc by a majority vote of its members may decide. En Banc [Quisumbing]). it may be concluded that the material misrepresentation contemplated by Section 78 of the (Omnibus Election) Code refers to qualifications for elective office. fraud or other analogous causes. v. is not within the scope of the provision. Who has authority to declare failure of elections and the calling of special election? What are the three instances where a failure of election may be declared? Held: The COMELEC’s authority to declare failure of elections is provided in our election laws. COMELEC. 336 SCRA 701. v. in Banaga. 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. it must be made with an intention to deceive the electorate as to one’s qualifications for public office. [A]side from the requirement of materiality. be interpreted to mean that nobody emerged as a winner. he conceded that an election . violence. the SC held: “We have painstakingly examined the petition filed by petitioner Banaga before the Comelec. terrorism. it must x x x. 135886. from serving. As to the third scenario.312. What kind of “material misrepresentation” is contemplated by Section 78 of the Omnibus Election Code as a ground for disqualification of a candidate? Does it include the use of surname? Held: Therefore. 16. and (2) the votes not cast would have affected the result of the election. 2000. No. or (c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof. (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. July 31. the election resulted in a failure to elect. or to prosecute him for violation of the election laws. terrorism. or hide a fact which would otherwise render a candidate ineligible. violence. fraud or other analogous causes. there is a resulting failure to elect. when not intended to mislead or deceive the public as to one’s identity. namely: (1) no voting took place in the precinct or precincts on the date fixed by law. Note that the cause of such failure of election could only be any of the following: force majeure. among others. terrorism. In these instances. En Banc [Gonzaga-Reyes]) 313. 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. nobody was elected. or even if there was voting.R. Aug. COMELEC. where the election was not held and where the election was suspended. such election results in a failure to elect on account of force majeure. where the preparation and the transmission of the election returns give rise to the consequence of failure to elect. July 31. X x x There are three instances where a failure of election may be declared. a false representation under Section 78 must consist of a “deliberate attempt to mislead. COMELEC (336 SCRA 701. (Victorino Salcedo II v. (Banaga. the declaration of failure of election and the calling of special election as provided in Section 6 of the Omnibus Election Code. (a) the election in any polling place has not been held on the date fixed on account of force majeure. fraud or other analogous causes.

We also declared that there is failure of elections only when the will of the electorate has been muted and cannot be ascertained. On review. The petition was denied. 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. COMELEC (257 SCRA 1 [1996]). Nevertheless. COMELEC (225 SCRA 374 [1993]). Even before the technical examination of election documents was conducted. we ruled that the Comelec did not gravely abuse its discretion in denying the petition. Next. the destruction or loss did not affect the result of the election. 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. Accordingly. petitioner filed a petition to declare a failure of election alleging that the attendant facts would justify declaration of such failure. Held: In Mitmug v. He also lodged an election protest with the Regional Trial Court disputing the result of the election in all precincts in his municipality. The reason is that voting actually took place as scheduled and other valid election returns still existed. The COMELEC dismissed the latter action on ground of untimeliness of the petition. Later on. the Comelec already observed badges of fraud just by looking at the election results in Parang. These essential facts ought to have been alleged clearly by the petitioner below. While petitioner contends that the election was tainted with widespread anomalies. COMELEC (230 SCRA 54 [1994]). the Comelec dismissed the petition for annulment of election results or to declare failure of elections in the municipalities of Tapul. Neither was it shown that even if there was voting. are also evident in the election results of the five mentioned municipalities. Pata. Panglima Estino. Xxx In Loong v. Despite that petition. but he did not. all election materials and paraphernalia with the municipal board of canvassers were destroyed by the sympathizers of the losing mayoralty candidate.” 315. the results thereon would be tantamount to failure to elect. custody and canvass of the election returns. It was not proven that no actual voting took place. 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. The board then decided to use the copies of election returns furnished to the municipal trial court. the board of canvassers proclaimed the winning candidates. proclaimed elected to that post. he filed a petition assailing the composition of the board of canvassers. that is. the same must as far as possible be respected. or marred fatally the preparation and transmission. there is no longer need to receive evidence on alleged election irregularities. massive disenfranchisement of voters due to terrorism. Regarding the petition to declare a failure of election. the petition for annulment of election results or to declare failure of elections in Parang. In Sardea v. Considering that there is no concurrence of the conditions seeking to declare failure of election. Cite instances when Comelec may or may not validly declare failure of elections. Sulu. on the ground of statistical improbability and massive fraud was granted by the COMELEC. and that private respondent was. Moreover. in fact. we ordered the Comelec to . Siasi and Kalinggalang Calauag. we ruled that petitioner’s first two actions involved pre-proclamation controversies which can no longer be entertained after the winning candidates have been proclaimed. 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.took place for the office of vice-mayor of Paranaque City. The election resulted in a failure to elect on account of fraud. If the will of the people is determinable. 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 Comelec denied motu proprio and without due notice and hearing the petition to declare failure of election despite petitioner’s argument that he has meritorious grounds in support thereto. 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. On review.

143398. 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. which shall be resolved by the divisions which issued the order. (Gementiza v. Clearly. First Division. may not. Rule 3 of the COMELEC Rules of Procedure. Commission on Elections. and shall promulgate its rules of procedure in order to expedite disposition of election cases. En Banc [Quisumbing]) 316. 336 SCRA 701. v. provided that motions for reconsideration of decisions shall be decided by the Commission en banc. thus: “Sec. 1999 that should resolve petitioner’s motion for reconsideration. The latter shall within two (2) days thereafter certify the case to the Commission en banc. Jr. the Clerk of Court concerned shall. But if there is something more to be done in the case after its issuance. 2001. Whether an action is for declaration of failure of elections or for annulment of election results. including pre-proclamation controversies. being interlocutory. resolution. As correctly pointed out by public respondent in its assailed order of November 29. How Motion for Reconsideration Disposed of. Any motion to reconsider a decision. order or ruling of a Division. COMELEC.” That only final orders of a Division may be raised before the COMELEC en banc is in accordance with Article IX-C. 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. (Banaga. provides: “SEC. resolution. the assailed order denying petitioner's demurrer to evidence. 344 SCRA 358). Oct. so that reliance on Loong by petitioner Banaga is misplaced. are not present in this case. 25. 2000.reinstate the aforesaid petition. July 31. COMELEC. violence or analogous. The elementary rule is that an order is final in nature if it completely disposes of the entire case. G. the Omnibus Election .R. order or ruling of a Division shall be resolved by the Commission en banc except motions on interlocutory orders of the division. 749 [1993]). Those circumstances.” Under the above-quoted rule. . within twenty-four (24) hours from the filing thereof. Commission on elections. All such election cases shall be heard and decided in division. notify the presiding Commissioner. the COMELEC en banc shall decide motions for reconsideration only of “decisions” of a Division. 2000. 220 SCRA 745. based on allegations of fraud. Rule 19 of the COMELEC Rules of Procedure. it is the herein public respondent (Second Division of the COMELEC) which issued the interlocutory order of October 11. 5. not the COMELEC en banc (Bulaong v. be resolved by the COMELEC en banc (Ambil. Accordingly. March 6. Section 5(c). the applicable rule on the subject is Section 5(c). What acts of a Division of the COMELEC may be subject of a motion for reconsideration of the COMELEC en banc? Held: Section 5. 1999. No. which states: “Rule 3. Jr. As such. The Commission on Elections may sit en banc or in two divisions. 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. 3.” It bears stressing that under this constitutional provision. meaning those acts of final character. the October 11. 353 SCRA 724. v. terrorism.Upon the filing of a motion to reconsider a decision. however. En Banc [Sandoval-Gutierrez]) 317. 1999 did not dispose of the case completely as there is something more to be done which is to decide the election protest. that order is interlocutory.

Feb. two (2) conditions must concur: first. unless restrained by the Supreme Court (Comelec Rules of Procedure. Distinguish a petition to declare failure of elections from an election protest. Such procedural lapse on the part of a petitioner would clearly warrant the outright dismissal of his action. it must be accorded respect. Thus. There can be failure of election in a political unit only if the will of the majority has been defiled and cannot be ascertained. Jr. [b]). Thus. the same must still be respected. second. while an en banc decision in a special action becomes final and executory after five (5) days from promulgation. 1994. even if there was voting. 230 SCRA 54. 10. For that reason. Fourth. July 31. 2000. his petition before the Comelec was instituted pursuant to Section 4 of Republic Act No. no voting has taken place in the precinct or precincts on the date fixed by law or. the votes not cast would affect the result of the election.” It is simply captioned as “Petition to Declare Failure of Elections and/or For Annulment of Elections. petitioner filed his petition as a special action and paid the corresponding fee therefor. En Banc [Quisumbing]) 318. petitioner did not comply with the requirements for filing an election protest. 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. a petition cannot be treated as both an election protest and a petition to declare failure of elections. the petition was docketed as SPA-98-383. It is not an election protest. He failed to pay the required filing fee and cash deposits for an election protest. (Mitmug v. After all. 336 SCRA 701. (Banaga. 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. COMELEC. while a petition to declare failure of elections is covered by Rule 26 under special actions. Failure to pay filing fees will not vest the election tribunal jurisdiction over the case. COMELEC. 7166 in relation to Section 6 of the Omnibus Election Code. in our view. Section 4 of RA 7166 refers to “postponement. an election protest is assigned a docket number starting with “EPC. even if less than 25% of the electorate in the questioned precincts cast their votes. Rule 18. First. an en banc decision of Comelec in an ordinary action becomes final and executory after thirty (30) days from its promulgation.” Second. En Banc [Bellosillo]) 319. Section 13 [a]. the election nevertheless results in failure to elect. This conforms to petitioner’s categorization of his petition as one to declare a failure of elections or annul election results. In contrast. Third. failure of election and special elections” while Section 6 of the Omnibus Election Code relates to “failure of election.” meaning election protest case. In this case. if it can be determined. But. petitioner’s action is a petition to declare a failure of elections or annul election results. . 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. and. An election protest is governed by Rule 20 on ordinary actions. Held: While petitioner may have intended to institute an election protest by praying that said action may also be considered an election protest. regardless of the actual number of ballots cast.Code denominates them similarly. v.

Jr. Senator and Member of the House of Representatives. (Banaga. Section 7 of Rule 27 of the 1993 COMELEC Rules of Procedure (took effect on February 15. except those involving the right to vote. senatorial and congressional elections from filing pre-proclamation cases." (Section 2[3]. receipt. the allegations in the petition decisively determine its nature. Omnibus Election Code). Petitioner alleged that the local elections for the office of vice-mayor in Paranaque City held on May 11. custody and appreciation of election returns (Section 241.” The prohibition aims to avoid delay in the proclamation of the winner in the election. 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. transmission.R. 1998. political party. Sandoval v. as the case may be. He averred that those incidents warrant the declaration of a failure of elections. to the general rule. v. plebiscite. supra) (Federico S. or upon verified petition by any candidate. As an exception. correct the errors committed. all questions affecting elections. organization or coalition of political parties. 234. Jan. 2000 [Puno]) 321.Fifth. receipt. Vice-President. . 15. 1993) provides that if the error is discovered before proclamation. . The law. nonetheless. provides an exception to the exception. July 31. Article IX-C. Article IX-C. and Members of the House of Representatives. COMELEC. public respondent cannot be said to have gravely erred in treating petitioner’s action as a petition to declare failure of elections or to annul election results. 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. the board of canvassers may motu proprio. or any matter raised under Sections 233. no pre-proclamation cases shall be allowed on matters relating to the preparation. vice-presidential. 336 SCRA 701. which delay might result in a vacuum in these sensitive posts. COMELEC. denigrates the true will of the people as it was marred with widespread anomalies on account of vote buying. transmission. candidates and registered political parties involved in an election are allowed to file pre-proclamation cases before the Comelec. flying voters and glaring discrepancies in the election returns. Given these circumstances. initiative. 2000. Vice-President. What are pre-proclamation cases. 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. 26. 1987 Constitution) and its power to "decide. and exceptions thereto? What Court has jurisdiction over preproclamation cases? Held: As a general rule. Section 15 of Republic Act 7166 prohibits candidates in the presidential. 235 and 236 in relation to the preparation. Senator. 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.For purposes of the elections for President. En Banc [Quisumbing]) 320. 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. G. Pre-Proclamation Cases Not Allowed in Elections for President. The Comelec has exclusive jurisdiction over all pre-proclamation controversies (Section 242. No. 133842. 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. however. custody and appreciation of election returns or the certificates of canvass. However. 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. after due notice and hearing. It states: “Sec. supra). referendum and recall" (Section 2[1].

Section 5, however, of the same rule states that a petition for correction of manifest error may be filed directly with the Commission en banc provided that such errors could not have been discovered during the canvassing despite the exercise of due diligence and proclamation of the winning candidate had already been made. (Federico S. Sandoval v. COMELEC, G.R. No. 133842, Jan. 26, 2000 [Puno])

322.

Distinguish Election Protest from Petition for Quo Warranto.

Held: In Samad v. COMELEC, we explained that a petition for quo warranto under the Omnibus Election Code raises in issue the disloyalty or ineligibility of the winning candidate. It is a proceeding to unseat the respondent from office but not necessarily to install the petitioner in his place. An election protest is a contest between the defeated and winning candidates on the ground of frauds or irregularities in the casting and counting of the ballots, or in the preparation of the returns. It raises the question of who actually obtained the plurality of the legal votes and therefore is entitled to hold the office. (Dumayas,

Jr. v. COMELEC, G.R. Nos. 141952-53, April 20, 2001, En Banc [Quisumbing]) 323. What is a counter-protest? When should it be filed?

Held: Under the Comelec Rules of Procedure, the protestee may incorporate in his answer a counterprotest. It has been said that a counter-protest is tantamount to a counterclaim in a civil action and may be presented as a part of the answer within the time he is required to answer the protest, i.e., within five (5) days upon receipt of the protest, unless a motion for extension is granted, in which case it must be filed before the expiration of the extended time. As early as in the case of Arrieta v. Rodriguez (57 Phil. 717), the SC had firmly settled the rule that the counter-protest must be filed within the period provided by law, otherwise, the forum loses its jurisdiction to entertain the belatedly filed counter-protest. (Kho v. COMELEC, 279 SCRA 463, Sept. 25, 1997,

En Banc [Torres])

324. What is the effect of death of a party in an election protest? Should it warrant the dismissal of the protest?
Held: An election protest involves both the private interests of the rival candidates and the public interest in the final determination of the real choice of the electorate, and for this reason, an election contest necessarily survives the death of the protestant or the protestee. It is true that a public office is personal to the public officer and is not a property transmissible to his heirs upon death, thus, upon the death of the incumbent, no heir of his may be allowed to continue holding his office in his place. But while the right to a public office is personal and exclusive to the public officer, an election protest is not purely personal and exclusive to the protestant or to the protestee such that after the death of either would oust the court of all authority to continue the protest proceedings. An election contest, after all, involves not merely conflicting private aspirations but is imbued with paramount public interests. The death of the protestant neither constitutes a ground for the dismissal of the contest nor ousts the trial court of its jurisdiction to decide the election contest. (De Castro v. COMELEC, 267 SCRA 806, Feb.

7, 1997)

325. Does the fact that one or a few candidates in an election got zero votes in one or a few precincts adequately support a finding that the election returns are statistically improbable?
Held: From experiences in past elections, it is possible for one candidate or even a few candidates to get zero votes in one or a few precincts. Standing alone and without more, the bare fact that a candidate for public office received zero votes in one or two precincts can not adequately support a finding that the subject election returns are statistically improbable. A no-vote for a particular candidate in election returns is but one strand in the

web of circumstantial evidence that those election returns were prepared under “duress, force and intimidation.” In the case of Una Kibad v. Comelec (23 SCRA 588 [1968]), the SC warned that the doctrine of statistical improbability must be viewed restrictively, the utmost care being taken lest in penalizing the fraudulent and corrupt practices, innocent voters become disenfranchised, a result which hardly commends itself. Moreover, the doctrine of statistical improbability involves a question of fact and a more prudential approach prohibits its determination ex parte. (Arthur V. Velayo v. COMELEC, G.R.

No. 135613, March 9, 2000, En Banc [Puno])

326. What Court has jurisdiction over election protests and quo warranto proceedings involving Sangguniang Kabataan (SK) elections?
Held: Any contest relating to the election of members of the Sangguniang Kabataan (including the chairman) – whether pertaining to their eligibility or the manner of their election – is cognizable by MTCs, MCTCs, and MeTCs. Section 6 of Comelec Resolution No. 2824 which provides that cases involving the eligibility or qualification of SK candidates shall be decided by the City/Municipal Election Officer whose decision shall be final, applies only to proceedings before the election. Before proclamation, cases concerning eligibility of SK officers and members are cognizable by the Election Officer. But after the election and proclamation, the same cases become quo warranto cases cognizable by MTCs, MCTCs, and MeTCs. The distinction is based on the principle that it is the proclamation which marks off the jurisdiction of the courts from the jurisdiction of election officials. The case of Jose M. Mercado v. Board of Election Supervisors (243 SCRA 423, G.R. No. 109713, April 6, 1995), in which this Court ruled that election protests involving SK elections are to be determined by the Board of Election Supervisors was decided under the aegis of Comelec Resolution No. 2499, which took effect on August 27, 1992. However, Comelec Resolution No. 2824, which took effect on February 6, 1996 and was passed pursuant to R.A. 7808, in relation to Arts. 252-253 of the Omnibus Election Code, has since transferred the cognizance of such cases from the Board of Election Supervisors to the MTCs, MCTCs and MeTCs. Thus, the doctrine of Mercado is no longer controlling. (Francis King L. Marquez

v. COMELEC, G.R. No. 127318, Aug. 25, 1999, En Banc [Purisima])

327. What acts of a Division of the COMELEC may be subject of a motion for reconsideration of the COMELEC en banc?
Held: Section 5, Rule 19 of the COMELEC Rules of Procedure, provides: “SEC. 5. How Motion for Reconsideration Disposed of. - Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify the presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc.” Under the above-quoted rule, the acts of a Division that are subject of a motion for reconsideration must have a character of finality before the same can be elevated to the COMELEC en banc. The elementary rule is that an order is final in nature if it completely disposes of the entire case. But if there is something more to be done in the case after its issuance, that order is interlocutory. As correctly pointed out by public respondent in its assailed order of November 29, 1999, the October 11, 1999 did not dispose of the case completely as there is something more to be done which is to decide the election protest. As such, it is the herein public respondent (Second Division of the COMELEC) which issued the interlocutory order of October 11, 1999 that should resolve petitioner’s motion for reconsideration, not the COMELEC en banc (Bulaong v. COMELEC, First Division, 220 SCRA 745, 749 [1993]). Accordingly, the applicable rule on the subject is Section 5(c), Rule 3 of the COMELEC Rules of Procedure, which states:

“Rule 3, Section 5(c). Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc except motions on interlocutory orders of the division, which

shall be resolved by the divisions which issued the order.”

That only final orders of a Division may be raised before the COMELEC en banc is in accordance with Article IX-C, Section 3 of the Constitution which mandates that only motions for reconsideration of final decisions shall be decided by the Commission on Elections en banc, thus: “Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.” It bears stressing that under this constitutional provision, the COMELEC en banc shall decide motions for reconsideration only of “decisions” of a Division, meaning those acts of final character. Clearly, the assailed order denying petitioner's demurrer to evidence, being interlocutory, may not, be resolved by the COMELEC en banc (Ambil, Jr. v. Commission on elections, G.R. No. 143398, Oct. 25,

2000, 344 SCRA 358). (Gementiza v. Commission on Elections, 353 SCRA 724, March 6, 2001, En Banc [Sandoval-Gutierrez])

THE LAW OF PUBLIC CORPORATIONS

328.

What is an autonomous region?

Answer: An autonomous region consists of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of the Constitution and the national sovereignty as well as the territorial integrity of the Republic of the Philippines. (Sec. 15, Art. X, 1987 Constitution)

329. What are administrative regions? Are they considered territorial and political subdivisions of the State? Who has the power to create administrative regions?
Held: Administrative regions are mere groupings of contiguous provinces for administrative purposes. They are not territorial and political subdivisions like provinces, cities, municipalities and barangays. While the power to merge administrative regions is not expressly provided for in the Constitution, it is a power which has traditionally been lodged with the President to facilitate the exercise of the power of general supervision over local governments. (Abbas v. COMELEC, 179 SCRA 287, Nov. 10, 1989, En

Banc [Cortes])

329. Is there a conflict between the power of the President to merge administrative regions with the constitutional provision requiring a plebiscite in the merger of local government units?
Held: There is no conflict between the power of the President to merge administrative regions with the constitutional provision requiring a plebiscite in the merger of local government units because the requirement of a plebiscite in a merger expressly applies only to provinces, cities, municipalities or barangays, not to administrative regions. (Abbas v. COMELEC, 179 SCRA 287, Nov. 10, 1989, En

Banc [Cortes])

All its functions are administrative in nature and these are actually summed up in the charter itself x x x. 7924 that empowers the MMDA or its Council “to enact ordinances.330. shows that the latter possessed greater powers which were not bestowed on the present MMDA. programs and projects.” It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies. Secondly. One of these is transport and traffic management x x x. and this coordination. It comprised the Greater Manila Area composed of the contiguous four (4) cities of Manila. 7924 that grants the MMDA police power. Unlike the legislative bodies of the local government units. There is no syllable in R. approve resolutions and appropriate funds for the general welfare” of the inhabitants of Metro Manila. 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.” Metropolitan Manila was established as a “public corporation” x x x. No. The administration of Metropolitan Manila was placed under the Metro Manila Commission (MMC) x x x. and the thirteen (13) municipalities x x x. twelve (12) cities and five (5) municipalities x x x. fines and penalties. The Council is headed by a Chairman who is appointed by the President and vested with the rank of cabinet member. the scope of the MMDA’s function is limited to the delivery of the seven (7) basic services. . management. With the passage of Republic Act No. 824? Held: Metropolitan or Metro Manila is a body composed of several local government units – i. people’s organizations. Metropolitan Manila was first created in 1975 by Presidential Decree No. setting of policies. 7924 in 1995. coordination. Metropolitan Manila was created as a response to the finding that the rapid growth of population and the increase of social and economic requirements in these areas demand a call for simultaneous and unified development. Even the Metro Manila Council has not been delegated any legislative power. Pasay and Caloocan. and issues the necessary rules and regulations for the implementation of said plans. an examination of Presidential Decree No.. 824. there is no provision in R. As the policy-making body of the MMDA. Quezon. Although the MMC is the forerunner of the present MMDA. The MMDA is x x x a “development authority. the MMDA is not the same entity as the MMC in Sangalang. the charter of the MMC. 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. that the public services rendered by the respective local governments could be administered more efficiently and economically if integrated under a system of central planning. No.A. 824. collection of service and regulatory fees. implementation. the Metro Manila Council approves metro-wide plans.A. X x x Clearly. monitoring. the president of the Metro Manila Vice-Mayors’ League and the president of the Metro Manila Councilors’ League. installation of a system and administration. The governing board of the MMDA is the Metro Manila Council. It will be noted that the powers of the MMDA are limited to the following acts: formulation. preparation. regulation. it approves the annual budget of the MMDA and promulgates the rules and regulations for the delivery of basic services. non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area.e. The Council is composed of the mayors of the component 12 cities and 5 municipalities. let alone legislative power. “especially in the maintenance of peace and order and the eradication of social and economic ills that fanned the flames of rebellion and discontent [were] part of the reform measures under Martial Law essential to the safety and security of the State.

barangay captains chosen by the MMC and sectoral representatives appointed by the President. After President Corazon Aquino assumed power. The MMA’s jurisdiction was limited to addressing common problems involving basic services that transcended local boundaries. Xxx The creation of the MMC also carried with it the creation of the Sangguniang Bayan. the Transitory Provisions of the Constitution gave the President of the Philippines the power to constitute the Metropolitan Authority x x x. Metropolitan Manila had a “central government. resolutions and fix penalties for violation of such ordinances and resolutions. Whatever legislative powers the component cities and municipalities had were all subject to review and approval by the MMC.” Under the 1987 Constitution. 392 and constituted the Metropolitan Manila Authority (MMA). In 1990. resolutions or measures. Sections 1 and 2 of Article X of the 1987 Constitution x x x. however. the MMC which fully possessed legislative and police powers. It was the MMC itself. Moreover. Thus. revise or repeal all ordinances. was merely given the power of: (1) formulation of policies on the delivery of basic services requiring coordination and consolidation. Article X. approval of a code of basic services and the exercise of its rule-making power. The powers and functions of the MMC were devolved to the MMA. amend. Pending enactment of this law. create “special metropolitan political subdivisions” which shall be subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. resolutions and acts of any of the x x x cities and x x x municipalities comprising Metro Manila.e. that not all powers and functions of the MMC were passed to the MMA. As a “central government” it had the power to levy and collect taxes and special assessments. Its power was merely to provide the local government units technical assistance in the preparation of local development plans. President Aquino issued Executive Order No.” The MMA’s governing body. the power to impose taxes and other levies. This was composed of the members of the component city and municipal councils. the local government units became primarily responsible for the governance of their respective political subdivisions. that possessed legislative powers. and at the same time. recognized the necessity of creating metropolitan regions not only in the existing National Capital Region but also in potential equivalents in the Visayas and Mindanao. It also had the power to review. It was bestowed the power to enact or approve ordinances.. Any semblance of legislative power it had was confined to a “review [of] legislation proposed by the local legislative assemblies to ensure consistency among local governments . the power to charge and collect fees. and the power to pass ordinances or resolutions with penal sanctions were vested exclusively in the MMC. 1987 Constitution). although composed of the mayors of the component cities and municipalities. The Constitution. and the cities and municipalities comprising this subdivision shall retain their basic autonomy and their own local executive and legislative assemblies (Section 11. review appropriations for the city and municipal units within its jurisdiction. by law. there was a clamor to restore the autonomy of the local government units in Metro Manila. X x x The Constitution itself expressly provides that Congress may. the jurisdiction of this subdivision shall be limited to basic services requiring coordination. The Sangguniang Bayan had the power to recommend to the MMC the adoption of ordinances. however. The MMA’s power was limited to the “delivery of basic urban services requiring coordination in Metropolitan Manila. It did not have legislative power. It ought to be stressed. the power to appropriate money for its operation. and (2) promulgation of resolutions and other issuances. however. the power to appropriate money.The MMC was the “central government” of Metro Manila for the purpose of establishing and administering programs providing services common to the area. the Metropolitan Manila Council. Hence.” i. resolutions and measures recommended by the Sangguniang Bayan were subject to the MMC’s approval. All ordinances.

There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns.and with the comprehensive development plan of Metro Manila. the MMDA is not a political unit of government. that possess legislative power and police power. (MMDA v. No. He has no control over their acts in the sense that he can substitute their judgments with his own. Inc. and ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress. 2000. its proposed opening by petitioner MMDA is illegal x x x. the autonomous government becomes accountable not to the central authorities but to its constituency. the Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution ordering the opening of Neptune Street. It is not even a “special metropolitan political subdivision” as contemplated in Section 11. 1989. 170 SCRA 786. 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. March 27. Unlike the MMC. At the same time. the President merely exercises supervisory authority. 7924 took effect.” and to “advise the local governments accordingly. 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. the autonomous government is free to chart its own destiny and shape its own future with minimum intervention from central authorities. En Banc [Sarmiento]) .A. In fact. Article X of the Constitution. This emphasizes the administrative character of the MMDA. involves an abdication of political power in favor of local government units declared autonomous. Bel-Air Village Association.A. Metropolitan Manila became a “special development and administrative region” and the MMDA a “special development authority” whose functions were “without prejudice to the autonomy of the affected local government units. In the case at bar. It is the local government units. on the other hand. The President exercises general supervision over them. The Chairman of the MMDA is not an official elected by the people. R. No. 328 SCRA 836. Decentralization of power. but only to ensure that local affairs are administered according to law.” since in that event. No. The power delegated to the MMDA is that given to the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the MMDA’s functions.D. whereas in local government units. 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. [Puno]) 331. This was explicitly stated in the last Committee deliberations prior to the bill’s presentation to Congress. Xxx Clearly. acting through their respective legislative councils. 28. Feb. Held: Discuss the concept of local autonomy. the MMC under P. part of his function is to perform such other duties as may be assigned to him by the President. 7924 was not submitted to the inhabitants of Metro Manila in a plebiscite. but appointed by the President with the rank and privileges of a cabinet member. No. (Limbona v. 1st Div.” When R. decentralization of power amounts to “self-immolation. According to a constitutional author. 824 is not the same entity as the MMDA under R. Autonomy is either decentralization of administration or decentralization of power. hence.A.” The character of the MMDA was clearly defined in the legislative debates enacting its charter. Mangelin. Clearly then. 7924.. In that case. the MMDA has no power to enact ordinances for the welfare of the community.

Jr. to be an imperium in imperio. J. sales of fixed assets..]) . (Alvarez v. however. COA. Jr. 252 SCRA 695. authority. the decentralization of government authority. but not intended. 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. Jr. The principle of local autonomy under the 1987 Constitution simply means “decentralization. too. 1990. 290 and 291 of the Code. 181 SCRA 495. Department of Finance Order No. contemplates the grant of political autonomy and not just administrative autonomy to these regions. They thus constitute income which the local government can invariably rely upon as the source of much needed funds. 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. is thereby deconcentrated. Power which used to be highly centralized in Manila. On the other hand. Jan. En Banc [Hermosisima.. (Alvarez v. its instrumentalities and government-owned or controlled corporations. 29. and similar others”. grants. responsibilities and resources. or other laws. constituting executive or contemporaneous construction of a statute by an administrative agency charged with the task of interpreting and applying the same. 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. cities and municipalities from regular sources of the Local General Fund including the internal revenue allotment and other shares provided for in Sections 284. En Banc [Cortes]) 333. Whether or not the Internal Revenue allotments (IRAs) are to be included in the computation of the average annual income of a municipality for purposes of its conversion into an independent component city? Held: Yes. Xxx [T]o reiterate. to classify the same as a special fund or transfer. The IRAs are items of income because they form part of the gross accretion of the funds of the local government unit. The constitutional guarantee of local autonomy in the Constitution refers to the administrative autonomy of local government units or. IRAs are a regular. Jan. but exclusive of nonrecurring receipts. Thus. which is peculiar to the 1987 Constitution. 1996. 35-93 correctly encapsulizes the full import of the above disquisition when it defined ANNUAL INCOME to be “revenues and receipts realized by provinces. nil is there a basis. is entitled to full respect and should be accorded great weight by the courts. recurring item of income.” It does not make local governments sovereign within the state or an “imperium in imperio. 31. The IRAs regularly and automatically accrue to the local treasury without need of any further action on the part of the local government unit..332. En Banc [Hermosisima]) 2. family and property law jurisdiction in each of the autonomous regions.” the local government unit is autonomous in the sense that it is given more powers.” Thus. 252 SCRA 695. financial assistance. unless such construction is clearly shown to be in sharp conflict with the Constitution. 1996. Guingona. loan proceeds. such as other national aids. the creation of autonomous regions in Muslim Mindanao and the Cordilleras.” Remaining to be an intra sovereign subdivision of one sovereign nation. Guingona. What kind of local autonomy is contemplated by the Constitution? autonomy contemplated insofar as the autonomous regions are concerned? What about the kind of Held: 1. (Cordillera Broad Coalition v. the governing statute. Such order. cast in more technical language. 31. Jan.

before the regular court. (Mariano. Petitioners have not demonstrated that the delineation of the land area of the proposed City of Makati will cause confusion as to its boundaries. In language that cannot be any clearer. R. Jr. the territorial dispute between the municipalities of Makati and Taguig over Fort Bonifacio was under court litigation.A. En Banc [Puno]) 335. with technical descriptions. Held: The importance of drawing with precise strokes the territorial boundaries of a local unit of government cannot be overemphasized. State the importance of drawing with precise strokes the territorial boundaries of a local government unit. We sustain the submission of the Solicitor General in this regard. 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. 217-219. No. They did not want to foreclose the dispute by making a legislative finding of fact which could decide the issue. Needless to state. No. At the time of the consideration of R. with technical descriptions. We note that said delineation did not change even by an inch the land area previously covered by Makati as a municipality. 7854. 7854 is unconstitutional. Petitioners contended in a petition brought the SC that R. Beyond these limits. with technical descriptions” – was made in order to provide a means by which the area of said cities may be reasonably ascertained. 1995. In the cases at bench. This would have ensued if they defined the land area of the proposed city by its exact metes and bounds. we cannot perceive how this evil (uncertainty in the boundaries of local government units will sow costly conflicts in the exercise of government powers which ultimately will prejudice the people’s welfare) can be brought about by the description made in Section 2 of R. 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.334. divide. any uncertainty in the boundaries of local government units will sow costly conflicts in the exercise of governmental powers which ultimately will prejudice the people’s welfare. subtract. v. its acts are ultra vires. 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.A. the requirement on metes and bounds . made them subject to the ultimate resolution by the courts. or multiply the established land area of Makati. 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. The boundaries must be clear for they define the limits of the territorial jurisdiction of a local government unit. COMELEC. 242 SCRA 211. Mar. Considering these peculiar circumstances. Should the contention be upheld? Held: Given the facts of the cases at bench. we are not prepared to hold that Section 2 of R. with technical descriptions. Taguig. it is beyond cavil that the requirement started therein.” Note that at the time the law was enacted. Congress maintained the existing boundaries of the proposed City of Makati but as an act of fairness. viz: ‘the territorial jurisdiction of newly created or converted cities should be described by metes and bounds. with technical descriptions. Section 2 stated that the city’s land area “shall comprise the present territory of the municipality. 7.A. In other words. Out of a becoming sense of respect to a co-equal department of government. 7854. viz: “Going now to Sections 7 and 450 of the Local Government Code. the legislators felt that the dispute should be left to the courts to decide. No.A. It can legitimately exercise powers of government only within the limits of its territorial jurisdiction. 7854 was enacted converting the Municipality of Makati into a highly urbanized city.” 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. there was a pending boundary dispute between Makati and one of its neighbors. 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. Section 2 did not add.A.

) 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. Local Government Code) 337. so long as the territorial jurisdiction of a city may be reasonably ascertained. In the case at bar. It then becomes a case of the master serving the slave.e. Congress did not intend that laws creating new cities must contain therein detailed technical descriptions similar to those appearing in Torrens titles. instead of the other way around. although it does have in its employ.R. What is the meaning of "devolution"? Answer: The term "devolution" refers to the act by which the National government confers power and authority upon the various local government units to perform specific functions and responsibilities. it may be concluded that the legislative intent behind the law has been sufficiently served. Xxx . i. what is sought by petitioner (Acebedo Optical Company.was meant merely as a tool in the establishment of local government units. v. 20. 217-219. been devolved likewise to local government units? Held: Only the powers of the Land Transportation Franchising Regulatory Board (LTFRB) to regulate the operation of tricycles-for-hire and to grant franchises for the operation thereof have been devolved to local governments under the Local Government Code. 242 SCRA 211. (Sec. City of Butuan. Ergo. No. by referring to common boundaries with neighboring municipalities. To invalidate R. G. is the grant of authority to a natural person to engage in the practice or exercise of his or her profession.” Xxx (Mariano. The manifest intent of the Code is to empower local government units and to give them their rightful due. This could not be the intendment of the law. Jan. A business permit authorizes the person. Inc. 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. A professional license. 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. Certainly. Have the powers of the Land Transportation Office (LTO) to register. 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.A. as petitioners seem to imply. 1995. [Vitug]) 338. to engage in business or some form of commercial activity.. even the power of LGUs to regulate the operation of tricycles and to grant franchises for the operation thereof is still subject to the guidelines prescribed by the DOTC. 131512. as well as to issue licenses for the driving thereof. Mar. then. 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. persons who are duly licensed to practice optometry by the Board of Examiners in Optometry. Jr.A. (LTO v. In fact. 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. 7. on the other hand.. natural or otherwise. 2000. as well as the corresponding guidelines issued by the DOTC. as in this case. 17[e]. tricycles in particular. Clearly unaffected by the Local Government Code are the powers of the LTO under R. 4136 requiring the registration of all kinds of motor vehicles “used or operated on or upon any public highway” in the country. No. It is not an end in itself. En Banc [Puno]) 336. COMELEC. 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. 2nd par. 3rd Div. This can be gleaned from the explicit language of the statute itself.

In the present case. or order. ordinance. Article III of the Constitution. 1997) . CA. it usurps the legislative functions of the municipal council or president.’ A strictly legal question is before the provincial board in its consideration of a municipal resolution. 292 SCRA 678.R. Feb. 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. 3) There is payment of just compensation. ordinance. No. V. but said offer was not accepted. (Acebedo Optical Company.. En Banc [Purisima]) 339. (Municipality of Paranaque v. like that of optometry. As held in Velazco v.M. as required under Section 9. 7160. Such has been the consistent course of executive authority. purpose or welfare. 329 SCRA 314. 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. which had provided that a mere resolution would enable an LGU to exercise eminent domain.” (Moday v. 268 SCRA 586. from the Board of Examiners in Optometry. March 31. 4) A valid and definite offer has been previously made to the owner of the property sought to be expropriated. the previous Local Government Code.M. regulate the practice of a profession.. What are the requisites before a Local Government Unit can validly exercise the power of eminent domain? Held: 1) An ordinance is enacted by the local legislative council authorizing the local chief executive. and other pertinent laws. R. CA. or order is outside the scope of the legal powers conferred by law. in this case the Professional Regulations Commission and the Board of Examiners in Optometry. 2000. 1998 [Panganiban]) 341. (Municipality of Paranaque v. ordinance. 2) The power of eminent domain is exercised for public use. “The only ground upon which a provincial board may declare any municipal resolution. Realty Corp. Blas (G. Such a function is within the exclusive domain of the administrative agency specifically empowered by law to supervise the profession. The case of Province of Camarines Sur v. explicitly required an ordinance for this purpose. the present Local Government Code. V. v. July 30. 544-545). in behalf of the LGU. July 20. or for the benefit of the poor and the landless. 337. to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property.P. 1998 [Panganiban]) 340. A business permit is issued primarily to regulate the conduct of business and the City Mayor cannot. ordinance or order invalid is when such resolution. A resolution that merely expresses the sentiment or opinion of the Municipal Council will not suffice. 115 SCRA 540. the objective of the imposition of subject conditions on petitioner’s business permit could be attained by requiring the optometrists in petitioner’s employ to produce a valid certificate of registration as optometrists. In contrast. 1982. Realty Corp. 292 SCRA 678. through the issuance of such permit. 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. 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. The provincial board’s disapproval of any resolution. ordinance. or order is ‘beyond the powers conferred upon the council or president making the same. If a provincial board passes these limits. or order must be premised specifically upon the fact that such resolution. 20. L-30456. Inc. July 20.A.

342. of the deceased mayor.” Since A is only completing the service of the term for which the deceased and not he was elected. the fact remains that he has not been elected three times. 3.R. 8. only stay in office regardless of how the official . Suppose B is elected Mayor and. 133495. Consequently. Sec. because he has served only two full terms successively. Case No. In the second case. Suppose he is twice elected after that term. Jr. En Banc [Mendoza]) Case No. during his first term. Sept. that the local official concerned has been elected three consecutive times and that he has fully served three consecutive terms. therefore. 2. v. G. In both cases. is he qualified to run again in the next election? Answer: Yes. because he was not elected to the office of mayor in the first term but simply found G. he is twice suspended for misconduct for a total of 1 year. To consider. 133495. 3. "[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. COMELEC and Capco. No. Six months before the next election. What are the policies embodied in the constitutional provision barring elective local officials. can he run for one more term in the next election? Answer: Yes.. even if the local official is considered to have served three full terms notwithstanding his resignation before the end of the first term. Under Section 8. the mayor is entitled to run for reelection because the two conditions for the application of the disqualification provisions have not concurred. X. he resigns and is twice elected thereafter." How is this term limit for elective local officials to be interpreted? Held: The term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Under Art.R. En Banc [Mendoza]) himself thrust into it by operation of law. interrupted by the death. Sept. namely. 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. v. he has not actually served three full terms in all for the purpose of applying the term limit. 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. with the exception of barangay officials. Sec. 3.. 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. he must also have been elected to the same position for the same number of times before the disqualification can apply. The other policy is that of enhancing the freedom of choice of the people. If he is twice reelected after that. (Borja. No. 295 SCRA 157. Case No. Jr. 1. the local official has been elected three consecutive times. COMELEC and Capco. (Borja. His resignation constitutes an interruption of the full term. Jr. 343. Suppose A is a vice-mayor who becomes mayor by reason of the death of the incumbent. Article X of the Constitution. Jr. 1998. it is not enough that an individual has served three consecutive terms in an elective local office. A cannot be considered to have completed one term. but he has not fully served three consecutive terms. 295 SCRA 157. Can he run again for mayor in the next election? Answer: Yes. X. In the first case. with the exception of barangay officials. Neither had he served the full term because he only continued the service. 8. because although he has already first served as mayor by succession and subsequently resigned from office before the full term expired. 1998. from serving more than three consecutive terms).

i. First. Second. G. Lonzanida was previously elected and served two consecutive terms as mayor of San Antonio. Lonzanida cannot be considered as having been duly elected to the post in the May 1995 elections. Lonzanida was not the duly elected mayor and that he did not hold office for the full term. In the May 1995 elections he again ran 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. En Banc [Mendoza]) 344. 295 SCRA 157. Jr. After a reappreciation 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. (Lonzanida v. 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. Such power enables him to see to it that LGUs and their officials execute their . 311 SCRA 602. COMELEC. not control. Lonzanida vacated his post a few months before the next mayoral elections. 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. "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.. Zambales from May 1995 to March 1998 because he was not duly elected to the post.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. conversely.." The clear intent of the framers of the Constitution to bar any attempt to circumvent the threeterm 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. he merely assumed office as presumptive winner. it disregards the second requisite for the application of the disqualification. (Borja. 1998. over local government units (LGUs). Lonzanida did not serve a term as mayor of San Antonio. 1999. The second sentence of the constitutional provision under scrutiny states. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit. 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. and second. not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. which presumption was later overturned by the COMELEC when it decided with finality that Lonzanida lost in the May 1995 mayoral elections. COMELEC and Capco. 133495. 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. that he has fully served three consecutive terms. Jr. Sept. Zambales and was proclaimed winner. 3. 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.e. In sum. Lonzanida did not fully serve the 1995-1998 mayoral term. v.R. Is Lonzanida still qualified to run for mayor of San Antonio. his assumption of office from May 1995 to March 1998 cannot be counted as a term for purposes of computing the three term limit. July 28. 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. No. En Banc [Gonzaga-Reyes]) 345. he did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. Such involuntary severance from office is an interruption of continuity of service and thus. hence. Alvez served the remaining portion of the 1995-1998 mayoral term. Zambales prior to the May 1995 mayoral elections.

which means “something held back or withheld. Aguirre. under the Constitution. Hence. the President. What is meant by fiscal autonomy of Local Governments? Does it rule out in any manner national government intervention by way of supervision in order to ensure that local programs are consistent with national goals? Held: Under existing law. imperative. in addition to having administrative autonomy in the exercise of their functions. He may not withhold or alter any authority or power given them by the law. The Local Government Code (Sec. Often temporarily. he cannot prevent them from performing their tasks and using available resources to achieve their goals. however. rule out any manner of national government intervention by way of supervision. En Banc [Panganiban]) 346. Chapter 1. the “temporary” nature of the retention by the national government does not matter.” Hence. Thus.R.” As a rule. are consistent with national goals. Such withholding clearly contravenes the Constitution and the law. They are not formulated at the national level and imposed on local governments. July 19. effective January 1. Section 4 thereof has no color of validity at all. Xxx Section 4 of AO 372 cannot x x x be upheld. primarily responsible for formulating and implementing continuing. the formulation and the implementation of such policies and programs are subject to “consultations with the appropriate public agencies. the President was well-intentioned in issuing his Order to withhold the LGUs’ IRA. whether they are relevant to local needs and resources or not. but the rule of law requires that even the best intentions must be carried out within the parameters of the Constitution and the law. 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. The latter provision effectively encroaches on the fiscal autonomy of local governments. A basic feature of local fiscal autonomy is the automatic release of the shares of LGUs in the National internal revenue. orders the withholding. 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. 132988. Local fiscal autonomy does not. No. the necessity of a balancing of viewpoints and the harmonization of proposals from both local and national officials. v. Subtitle C. however. and local officials in turn have to work within the constraints thereof. it is equivalent to a holdback. local government units. Section 4 of AO 372. laudable purposes must be carried out by legal methods. This is mandated by no less than the Constitution. Book V. temporary. In sum.tasks in accordance with law. However. Significantly. is the head of the economic and planning agency of the government (Section 9. in order to ensure that local programs. various private . coordinated and integrated social and economic policies. Jr. plans and programs (Section 3. 336 SCRA 201. the withholding of a portion of internal revenue allotments legally due them cannot be directed by administrative fiat. Any retention is prohibited. by constitutional fiat. Title II. the term “shall” is a word of command that must be given a compulsory meaning. Article XII of the Constitution). 1998. as well as the power to allocate their resources in accordance with their own priorities. It extends to the preparation of their budgets. Although. (Pimentel. EO 292 [Administrative Code of 1987]) for the entire country. who in any case are partners in the attainment of national goals. 2000. fiscal and otherwise. therefore. G. While he may issue advisories and seek their cooperation in solving economic difficulties. Concededly. enjoy fiscal autonomy as well.” The provision is. while Section 1 of AO 372 may be upheld as an advisory effected in times of national crisis. 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. Verily.

but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. 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. En Banc [Panganiban]) 348. 2000. 336 SCRA 201. the President of the Philippines is hereby authorized. Jr. (Municipality of Paranaque v. (2) consultations with the presiding officers of the Senate and the House of Representatives and the presidents of the various local leagues. Does this mean that prior thereto. continue to preside over the sessions of the Sangguniang Panlalawigan (SP)? If no. July 20. See also Art. 2000. but not for a resolution. An ordinance possesses a general and permanent character. Secretary of the Interior and Local Government and Secretary of Budget and Management. On its first regular session. Moreover. Zamora. Held: A municipal ordinance is different from a resolution. 1998 [Panganiban]) 349. to make the necessary adjustments in the internal revenue allotment of local government units but in no case shall the allotment be less than thirty percent (30%) of the collection of national internal revenue taxes of the third fiscal year preceding the current fiscal year x x x” There are therefore several requisites before the President may interfere in local fiscal matters: (1) an unmanaged public sector deficit of the national government. En Banc [Romero]) 350. and subject to consultation with the presiding officers of both Houses of Congress and the presidents of the liga. If it were the intent of Congress to limit the business of the local council to such matters. 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. But as it is. What are the requisites before the President may interfere in local fiscal matters? Held: x x x [T]he Local Government Code provides (Sec. but a resolution is temporary in nature. The President cannot do so unilaterally. Interior and Local Government. 284. July 27. An ordinance is a law. adopting or updating of house rules would necessarily entail work beyond the day of the first regular session. upon the recommendation of [the] Secretary of Finance.M. Additionally. 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. Distinguish an ordinance from a mere resolution.” 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. Jr. there is no such intent. (Pimentel. and Budget and Management. and local government units.sectors. 311 SCRA 224. Furthermore. July 19. En Banc [Panganiban]) 347. 292 SCRA 678. unless decided otherwise by a majority of all the Sanggunian members. July 19. 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 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. Aguirre. then it would have done so in clear and unequivocal terms. while concurrently the Acting Governor.” Aguirre. (Pimentel. May an incumbent Vice-Governor. who may preside in the meantime? . v. 336 SCRA 201. V. Realty Corporation. 1999. the two are enacted differently – a third reading is necessary for an ordinance. (Malonzo v. and (3) the corresponding recommendation of the secretaries of the Department of Finance. v.

Aguirre. 5. 204 SCRA 464. The need for notice to all the members of the assembly is also . The people's prerogative to remove a public officer is an incident of their sovereign power and in the absence of constitutional restraint. 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. 227 SCRA 108. It was admitted. July 20. In the words of the Court. En Banc [Puno]) 353. the members present and constituting a quorum shall elect from among themselves a temporary presiding officer. Jr. 134213.R. 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. En Banc [Puno]) 352.’” (Garcia v. a major author of the subject law in his book The Local Government Code of 1991: The Key to National Development. To repeat. “in the event of the inability of the regular presiding officer to preside at the sanggunian session. 5. This event constitutes an “inability” on the part of the regular presiding officer (Vice-Governor) to preside during the SP sessions. COMELEC. 227 SCRA 108. The members of the Preparatory Recall Assembly (PRA) of the province of Bataan adopted a resolution calling for the recall of Governor Garcia. the Court ruled that ‘loss of confidence’ as a ground for recall is a political question. Under Section 49(b). 'whether or not the electorate of the municipality of Sulat has lost confidence in the incumbent mayor is a political question. v. et al. 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.” (Gamboa. thus: “There is only one ground for recall of local government officials: loss of confidence. No. Not undeservedly. it is frequently described as a fundamental right of the people in a representative democracy. 1993. however. G. The continuity of the Acting Governor’s (Vice-Governor) powers as presiding officer of the SP is suspended so long as he is in such capacity. Jr. 1993. Jr. since the nature of the duties of the Provincial Governor calls for a full-time occupant to discharge them. Should this submission be sustained? Held: We reject this submission of the respondents. Oct. Oct. 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. En Banc [Ynares-Santiago]) 351. 1999. What is the ground for recall? Is this subject to judicial inquiry? Held: Former Senator Aquilino Pimentel. 472 (1991). 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. 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. 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 Vice-governor cannot continue to simultaneously exercise the duties of the latter office. Such power has been held to be indispensable for the proper administration of public affairs.” They justified these selective notices on the ground that the law (Local Government Code) does not specifically mandate the giving of notice. (Garcia v.Held: Being the acting governor. Commission on Elections. This means that the people may petition or the Preparatory Recall Assembly may resolve to recall any local elective official without specifying any particular ground except loss of confidence. the power is implied in all governmental operations. stressed the same reason why the substantive content of a vote of lack of confidence is beyond any inquiry.. COMELEC. In the case of Evardone v...

” However.R. 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. Nov. The Commission on Elections. En Banc [Puno] 354. In the 2001 elections. G. to that extent is the sovereign voice of the people they represent nullified. 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. 2000 which is already within the one (1) year prohibited period immediately preceding the next regular election in May 2001. Whether or not an elective official who became City Mayor by legal succession can be the subject of a recall election by virtue of a Preparatory Recall Assembly Resolution which was passed or adopted when the said elective official was still the Vice-Mayor. 5. 154512. (Victorino Dennis M. 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. (Afiado v. 2002. The COMELEC scheduled a Special Recall Election for Mayor of that City on September 24. 12.” There is no more allowable time in the light of that law within which to hold recall elections for that purpose. 1 is no longer applicable to her inasmuch as she had already vacated the office of Vice-Mayor on October 11. En Banc [Carpio]) 355. 1 dated July 12. 1999. (Garcia v. Even if the Preparatory Recall Assembly were to reconvene to adopt another resolution for the recall of Amelita Navarro. Needless to stress. Commission on Elections. Held: The specific purpose of the Preparatory Recall Assembly was to remove Amelita S. 2002. 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. Should his contention be sustained? Held: This argument deserves scant consideration considering that when the PRA members adopted the Recall Resolution their terms of office had not yet expired. The then Vice-Mayor Amelita S. 340 SCRA 600.imperative for these members represent the different sectors of the electorate of Bataan. Sept. 111511.R. En Banc [De Leon] 356. G. Socrates v. he ran for Governor of the Province of Palawan and lost. 18. the Preparatory Recall Assembly (PRA) of Puerto Princesa City adopted a Resolution calling for the recall of incumbent Mayor Socrates. 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 ran and won as Mayor of Puerto Princesa in that election. 227 SCRA 100. Mayor Edward S. Sept. this time as Mayor of Santiago City. Its non-observance is fatal to the validity of the resolution to recall petitioner Garcia as Governor of the province of Bataan. Navarro assumed office as Mayor of Santiago City on October 11. 1993. the requirement of notice is mandatory for it is indispensable in determining the collective wisdom of the members of the Preparatory Recall Assembly. the same would still not prosper in view of Section 74 (b) of the Local Government Code of 1991 which provides that “No recall shall take place within one (1) year from the date of the official’s assumption of office or one (1) year immediately preceding a regular election. No. 1993. 1995 and 1998 elections and served in full his three consecutive terms as Mayor. 2002. COMELEC. No. 2002. Hagedorn of Puerto Princesa City was elected for three consecutive times in the 1992. Oct. 1999 when she assumed the position of City Mayor of Santiago City. the said PRA Resolution No. 2000. 2002. Navarro as the elected Vice-Mayor of Santiago City since PRA Resolution No. To the extent that they are not notified of the meeting of the assembly. One year after her assumption of office as Mayor will be October 11. Socrates on the ground of loss of confidence on July 2. Is Mayor Hagedorn qualified to run again for Mayor in that Special Recall Election considering the circumstances? . 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. 21. On July 2.

the mayor of Puerto Princesa was Socrates. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. not any other subsequent election. what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. Hagedorn’s new recall term from September 24. an elective local official cannot seek immediate reelection for a fourth term. The clear intent is that only consecutive terms count in determining the three-term limit rule. 2002. The Constitution. 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. 2002 is not an immediate reelection after his third consecutive term which ended on June 30. is no longer covered by the prohibition for two reasons. 2001. 7160. Xxx In the case of Hagedorn. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Xxx From June 30. 2001 until the recall election on September 24. First. the intervening period constitutes an involuntary interruption in the continuity of service. This period is clearly an interruption in the continuity of Hagedorn’s service as mayor. 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. After three consecutive terms. Second. One cannot stitch together Hagedorn’s previous three-terms with his new recall term to make the recall term a fourth consecutive term because factually it is not. 2004 is not a seamless continuation of his previous three consecutive terms as mayor. 2002 to June 30. This three-term limit rule is reiterated in Section 43 (b) of RA No.Held: The three-term limit rule for elective local officials is found in Section 8. however. not because of his voluntary renunciation. like a recall election. Hagedorn’s three consecutive terms ended on June 30. An involuntary interruption occurred from June 30. These constitutional and statutory provisions have two parts. What the Constitution prohibits is a consecutive fourth term. 2001. The first part provides that an elective local official cannot serve for more than three consecutive terms. Any subsequent election. his candidacy in the recall election on September 24. a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. but because of a legal prohibition. otherwise known as the Local Government Code x x x. 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. Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of office. 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. 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. Article X of the Constitution x x x. . Xxx Clearly.

The Commission on Elections. Jr. Commission on elections. 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. Socrates v. order or ruling of a Division. X x x In Hagedorn’s case. How Motion for Reconsideration Disposed of.Upon the filing of a motion to reconsider a decision. which shall be resolved by the divisions which issued the order. The Commission on Elections may sit en banc or in two divisions. Section 5(c). Any motion to reconsider a decision. Oct. 143398. 12. the Clerk of Court concerned shall. No. constituted an interruption in the continuity of his service as mayor. 749 [1993]). 2002 which broke the continuity or consecutive character of Hagedorn’s service as mayor. As such. v. Rule 19 of the COMELEC Rules of Procedure. meaning those acts of final character. be resolved by the COMELEC en banc (Ambil. All such election cases shall be heard and decided in division. 1999 did not dispose of the case completely as there is something more to be done which is to decide the election protest.2001 to September 24. not the COMELEC en banc (Bulaong v. that order is interlocutory.R. thus: “Sec. the October 11. Accordingly. First Division. the COMELEC en banc shall decide motions for reconsideration only of “decisions” of a Division. En Banc [Carpio]) 357. The elementary rule is that an order is final in nature if it completely disposes of the entire case.” as long as the cause is involuntary. 220 SCRA 745. What acts of a Division of the COMELEC may be subject of a motion for reconsideration of the COMELEC en banc? Held: Section 5. is sufficient to break an elective local official’s continuity of service.R. resolution. G. The latter shall within two (2) days thereafter certify the case to the Commission en banc. it is the herein public respondent (Second Division of the COMELEC) which issued the interlocutory order of October 11. the applicable rule on the subject is Section 5(c).” Under the above-quoted rule. G. The Constitution does not require the interruption or hiatus to be a full term of three years.” It bears stressing that under this constitutional provision. provided that motions for reconsideration of decisions shall be decided by the Commission en banc. Rule 3 of the COMELEC Rules of Procedure. COMELEC. 3. As correctly pointed out by public respondent in its assailed order of November 29. 154512. may not. (Victorino Dennis M. which states: “Rule 3. 25. provides: “SEC. notify the presiding Commissioner. including pre-proclamation controversies. Nov.” That only final orders of a Division may be raised before the COMELEC en banc is in accordance with Article IX-C. resolution. . No. 5. 2002. although short of a full term of three years. within twenty-four (24) hours from the filing thereof. The clear intent is that interruption “for any length of time. the nearly 15-month period he was out of office. the assailed order denying petitioner's demurrer to evidence. 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. 1999. . Clearly. and shall promulgate its rules of procedure in order to expedite disposition of election cases. 1999 that should resolve petitioner’s motion for reconsideration. order or ruling of a Division shall be resolved by the Commission en banc except motions on interlocutory orders of the division. being interlocutory. But if there is something more to be done in the case after its issuance.

1997) 359. 74 refers to a process.R. 74. No. 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. However. and that. 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. G. which obviously refers to an election. 1999. 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. Both petitioner Claudio and the COMELEC thus agree that the term “recall” as used in Sec. on the other hand. . G. Sec. followed by the taking of votes by the PRA on May 29. the recall was validly initiated outside the one-year prohibited period.2000. March 6. and the holding of the election on the scheduled date. 1999. 126576. En Banc [Sandoval-Gutierrez]) 358. Nov. “recall” refers to the election itself by means of which voters decide whether they should retain their local official or elect his replacement. since the petition for recall in this case was filed on July 2. Comelec. the fixing of the date of the recall election. Held: Petitioner contends that the term “recall” in Sec. 126576.” What does the term “regular local election. 123169. 1997) 360.R. mean? Held: The term “regular local election” under Sec. including the filing of the recall petition on July 2. The COMELEC. maintains that the process of recall starts with the filing of the petition for recall and ends with the conduct of the recall election. since May 29. G. 1999 and unanimously resolved to initiate the recall. He claims that “when several barangay chairmen met and convened on May 19. 344 SCRA 358). 74 (a). March 5. 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. 1999 was less than a year after he had assumed office. 74 (b) refers to a process. and then proceeds to the filing of a recall resolution or petition with the COMELEC. 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. (Gementiza v. 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. No. 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. (Angobung v. the PRA was illegally convened and all proceedings held thereafter. in contrast to the term “recall election” found in Sec. were null and void.R. 4. 1999 for the purpose of adopting a resolution ‘to initiate the recall of Jovito Claudio as Mayor of Pasay City for loss of confidence.” as used in this section. (Angobung v. March 5. exactly one year and a day after petitioner’s assumption of office. the verification of such resolution or petition.' 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. as used in paragraph (b) of Sec.’ the process of recall began” and. They disagree only as to when the process starts for purpose of the one-year limitation in paragraph (b) of Sec. 353 SCRA 724. Commission on Elections. 74. COMELEC. 2001. No. 1996). COMELEC.

2) Because the purpose of the first limitation in paragraph (b) is to provide voters a sufficient basis for judging an elective local official. March 3.R. 140560. Cite instances when the provincial fiscal may be disqualified to represent in court a particular municipality. 23. creditor or otherwise. is pecuniarily involved. Negros Occidental (225 SCRA 553. according to Sec. Such representation will be violative of Section 1983 of the old Administrative Code. 1979) where the Court held that the municipality’s authority to employ a private attorney is expressly limited only to situations where the provincial fiscal would be disqualified to serve and represent it. CA. 74 speaks of limitations on “recall” which.” (Ramos v. G. 932 [1960]). March 3.Xxx To sum up. he. or his wife. Claudio v. May a municipality be represented by a private law firm which had volunteered its services gratis. Only in exceptional instances may a private attorney be hired by a municipality to represent it in lawsuits. RTC Br. This provision has its apparent origin in De Guia v. 2000. v. The Auditor General (44 SCRA 169. March 29. in a case involving the municipality. is a power which shall be exercised by the registered voters of a local government unit. CA. (Ramos v. What are the exceptional instances when a private attorney may be validly hired by a municipality in its lawsuits? Held: In Alinsug v. in collaboration with the municipal attorney and the fiscal? Held: No. Held: As held in Enriquez. 269 SCRA 34. San Carlos City. 269 SCRA 34. No. March 3. (Jovito O. 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. Since the voters do not exercise such right except in an election. the provincial fiscal may be disqualified to represent in court a particular municipality in the following instances: 1) If and when original jurisdiction of case involving the municipality is vested in the Supreme Court. En Banc [Mendoza]) 361. legatee. and 3) Because to construe the limitation in paragraph (b) as including the initiation of recall proceedings would unduly curtail freedom of speech and of assembly guaranteed in the Constitution. 1997) 364. May 4. the term “recall” in paragraph (b) refers to the recall election and not to the preliminary proceedings to initiate recall – 1) Because Sec. 1997) 363. 2) When the municipality is a party adverse to the provincial government or to some other municipality in the same province. and 3) When. This strict coherence to the letter of the law appears to have been dictated by the fact that “the municipality . provincial attorney. Sr. as heir. Who has the legal authority to represent a municipality in lawsuits? Held: Only the provincial fiscal. it is clear that the initiation of recall proceedings is not prohibited within the one-year period provided in paragraph (b). and final judging is not done until the day of the election. COMELEC. 58. or child. Aug. 269 SCRA 34. 1997) 362. (Ramos v. Gimenez (107 Phil. CA. 69. 1993). and municipal attorney should represent a municipality in its lawsuits.

27. 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. CA. 132413. 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. Without such conjoint action. Verily. upon approval by a majority of all the members of the sangguniang barangay. within twenty-four (24) hours from the filing thereof. the power of appointment is to be exercised conjointly by the punong barangay and a majority of all the members of the sangguniang barangay. 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. . . the barangay secretary. Sr. provides: “SEC. [Vitug]) 367. Rule 19 of the COMELEC Rules of Procedure. 269 SCRA 34. 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. What acts of a Division of the COMELEC may be subject of a motion for reconsideration of the COMELEC en banc? Held: Section 5. it was held that a municipality may adopt the work already performed in good faith by such private lawyer. Aug. neither an appointment nor a replacement can be effectual.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. however. the Clerk of Court concerned shall. May the Punong Barangay validly appoint or remove the barangay treasurer. Applying the rule that the power to appoint includes the power to remove. which work proved beneficial to it? Held: Although a municipality may not hire a private lawyer to represent it in litigations. 3rd Div. How Motion for Reconsideration Disposed of. Gallardo Ocol. 5. March 3. resolution. (Ramon Alquizola. 1999. But if there is something more to be done in the case after its issuance. G. the private lawyer’s work cannot bind the municipality.Upon the filing of a motion to reconsider a decision. the power to appoint or replace the barangay treasurer. 269 SCRA 34. notify the presiding Commissioner. the barangay secretary. order or ruling of a Division.” Under the above-quoted rule. 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. March 3. and other appointive barangay officials. It is likely that the legislature did not intend this absurdity to follow from its enactment of the law. v. May a municipality adopt the work already performed in good faith by a private lawyer. (Ramos v. (Ramos v. No. Unless so expressly adopted. The elementary rule is that an order is final in nature if it completely disposes of the entire case.R. 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.” Private lawyers may not represent municipalities on their own. CA. in the interest of substantial justice. The latter shall within two (2) days thereafter certify the case to the Commission en banc. 1997) 365. 1997) 366. that order is interlocutory. Neither may they do so even in collaboration with authorized government lawyers.

Rule 3 of the COMELEC Rules of Procedure. 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. 2001. the assailed order denying petitioner's demurrer to evidence. COMELEC. including pre-proclamation controversies. the very same Presidential Decree No. provided that motions for reconsideration of decisions shall be decided by the Commission en banc. 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. It can thus be plainly seen that . Commission on Elections. Section 84 of PD 1445.” there would be no debate that prior appropriation by the city council and a certification that funds are available therefore is indeed mandatorily required. and shall promulgate its rules of procedure in order to expedite disposition of election cases. which shall be resolved by the divisions which issued the order. 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. public funds may be disbursed not only pursuant to an appropriation law. Xxx However. No. be resolved by the COMELEC en banc (Ambil. or the Local Government Code of 1983. Section 5(c). not the COMELEC en banc (Bulaong v. 2000.” It bears stressing that under this constitutional provision. but also in pursuance of other specific statutory authority. First Division. thus: “Sec. resolution. being interlocutory. March 6.As correctly pointed out by public respondent in its assailed order of November 29. 1999 that should resolve petitioner’s motion for reconsideration. Thus. (Gementiza v. PD 1445 allows the disbursement of funds from any public treasury or depository therefor.e. which states: “Rule 3. 1445. which empowered the Sangguniang Panlungsod to “appropriate funds for expenses of the city government. the COMELEC en banc shall decide motions for reconsideration only of “decisions” of a Division. 749 [1993]). 337. Any motion to reconsider a decision. Clearly. Consequently. 143398. 25. may not. 220 SCRA 745.e. 344 SCRA 358).. 1445.R. v. in conjunction with Section 177 (b) of Batas Pambansa Blg. The Commission on Elections may sit en banc or in two divisions. or the Auditing Code of the Philippines. the law. 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. Jr. it is the herein public respondent (Second Division of the COMELEC) which issued the interlocutory order of October 11. As such. 353 SCRA 724. All such election cases shall be heard and decided in division. i.. Commission on elections. Accordingly. 1999 did not dispose of the case completely as there is something more to be done which is to decide the election protest. Oct. 3. meaning those acts of final character. when a contract is entered into by a city mayor pursuant to specific statutory authority. and fix the salaries of its officers and employees according to law. 1999. i. G.” That only final orders of a Division may be raised before the COMELEC en banc is in accordance with Article IX-C. which is the cornerstone of petitioner’s arguments. the applicable rule on the subject is Section 5(c). En Banc [Sandoval-Gutierrez]) 368. the October 11. order or ruling of a Division shall be resolved by the Commission en banc except motions on interlocutory orders of the division.

Mayor Simon did not usurp the city council’s power to provide for the proper disposal of garbage and to appropriate funds therefor.P. Under B. just as it is the city council’s duty to provide for said services. nor even in the statute itself. then Mayor Brigido Simon. This requirement was imposed much later by R. neither does said law prohibit him from entering into contracts unless and until funds are appropriated therefor.” there was no such qualification under the old code. By entering into the two contracts.A. 1st Div.P. long after the contracts had already been executed and implemented. 337. 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. 354 SCRA 493. Blg. 337. specifically and exclusively empowered the city mayor to “represent the city in its business transactions. Even the very Charter of Quezon City. No. Mar.” even as it grants the City Council the power. however. which now requires that the mayor’s representation of the city in its business transactions must be “upon authority of the sangguniang panlungsod or pursuant to law or ordinance” (Section 455 [vi]. 337 was not qualified nor restricted by any prior action or authority of the city council. (Citations omitted) We must differentiate the provisions of the old Local Government Code of 1983. In fact. 337. while the city mayor has no power to appropriate funds to support the contracts.P. 15. provides that the mayor’s representation must be “upon authority of the sangguniang panlungsod or pursuant to law or ordinance. The execution of contracts to address such a need is his statutory duty. Lexber Incorporated. Jr.P. Blg. that prohibits the city mayor from entering into contracts for the public welfare. On the other hand. 392 (Constituting the Metro Manila Authority [MMA]). there is nothing in the cited provisions. cannot be imposed on the city mayor then since the two contracts were entered into before R. and sign all warrants drawn on the city treasury and all bonds. 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. The Local Government Code of 1983. and to provide for its collection and disposition x x x.A. R. 337. Furthermore. (Section 177 [b]). it is his bounden duty to so represent the city in all its business transactions. did not enter into the subject contract without legal authority.P. more particularly Section 9(f).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. Blg. 7160.” as well as “to prohibit the throwing or depositing of offal. No. Blg. and obligations of the city. refuse. which was then in force. 2001. No such prior authority was required under B. unless and until there is prior authority from the city council. therefore. x x x (City of Quezon v. We note that while the subsequent Local Government Code of 1991. No. that requires “prior authorization by the city council by proper enactment of an ordinance” before the City Mayor can enter into contracts. by ordinance or resolution. There is no provision in B. which took effect after the execution of the subject contracts. Blg. garbage. This restriction.A. 7160. “to make all appropriations for the expenses of the government of the city. [Ynares-Santiago]) . the city council must provide for the “depositing. leaving or throwing of garbage” and to appropriate funds for such expenses. from that of the Local Government Code of 1991. which was then in force.” Such power granted to the city mayor by B. or other offensive matter in the same. 7160 was even enacted. contracts. Section 12(a)and Section 12(m) thereof. 337.P. such as signing “all warrants drawn on the city treasurer and all bonds.” (Citations omitted) While the powers and duties of the Mayor and the City Council are clearly delineated. simply provide that the mayor shall exercise general powers and duties. Blg. or B. B. more particularly the provisions of Executive Order No. contracts and obligations of the city.

articulating and crystallizing issues affecting barangay government administration and securing. 2001. 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. 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.) The public respondent judge therefore committed grave abuse of discretion amounting to lack or excess of jurisdiction in not dismissing the respondent’s Petition for Review for failure to exhaust all administrative remedies and for lack of jurisdiction. whose members are either appointed or elected government officials. Local Government Code). 507. Does the President’s power of general supervision extend to the liga ng mga barangay. Series of 1995. and for ventilating. In Opinion No. Local Government Code). we rule that Memorandum Circular No. 200 SCRA 512. solutions thereto (Sec. regulations and other issuances. when he again ran for the position of Governor in the 14th of May 2001 elections.369. To monitor means “to watch. 31. Petitioners would seek the disqualification of respondent Leonardo B. Fernandez. any doubt as to the power of the DILG Secretary to interfere with local affairs should be resolved in favor of the greater autonomy of the local government (Ibid. the Department of Justice ruled that the liga ng mga barangay is a government organization. Jan. 491. 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. 7160 (Local Government Code). as well as the 1995 and 1998 regular elections. Title VI. 41. The amendment of the GUIDELINES is more than an exercise of the power of supervision but is an exercise of the power of control. league or union created by law or by authority of law. of the 1987 Constitution and Section 43 of Republic Act No. immediately prior to the 2001 elections. Having in mind the foregoing principles. through proper and legal means. Roman on the ground of his having transgressed the three-term limit under Section 8. observe or check” and is compatible with the power of supervision of the DILG Secretary over local governments. 350 SCRA 732. (Bito-Onon v. 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. However.). the Administrative Code limits its authority to merely “monitoring compliance” by local government units of such issuances (Taule v. which is not a local government unit? Held: We rule in the affirmative. 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. [Gonzaga-Reyes]) 370. In fine. X x x Xxx The ligas are primarily governed by the provisions of the Local Government Code (Book III. which the President does not have over the LIGA. being an association. 3rd Div. Although the DILG is given the power to prescribe rules. which is limited to checking whether the local government unit concerned or the officers thereof perform their duties as per statutory enactments (Ibid. Article X. having occupied and served in that position following the 1993 recall elections. Local Government Code). should respondent’s incumbency to the post of Governor following the recall elections be included in determining the three-consecutive term limit fixed by law? . 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. Title VI of the Local Government Code and shall always conform to the provisions of the Constitution and existing laws (Sec. Besides. expressed in the Constitution and the Local Government Code. 523 [1991]). federation. Santos.

PANGANIBAN. J. J. the period from June 28. so long as such interruptions are not due to the voluntary renunciation of the office by the incumbent. as much as legally possible.. with whom DAVIDE. G. J. J. J. in fact. 2002.Held: After due deliberation. CARPIO. He argued that a recall term should not be considered as one full term. he also voted to affirm the clear choice of the electorate. COMELEC. holds the view that the recall term served by respondent Roman. Roman served as governor of Bataan by virtue of a recall election held in 1993. Jr. service for less than a term. is Roman who received 97 percent of the votes cast. J. COMELEC. J.R. 147927. C. where the full three consecutive terms had been continuously served so that disqualification had clearly attached. No. because in a democracy the people should. should not count to disqualify an elective local official from running for the same position. J. joined by PUNO. and CALLEJO. 1995. not being a full term. 133639. 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. concurred. the Court voted 8 to 7 to DISMISS the petition.. 2001 was actually his fourth term and contravenes Art. JJ. it excludes from the three-term limit interruptions in the continuity of service. joined by YNARES-SANTIAGO. J. J. COMELEC. full three-term limit. Lonzanida v.. G.. He contended that respondent Roman’s election in 2001 cannot exempt him from the three-term limit imposed by the Constitution. 2002 as null and void.). 1994 to June 30. The desire to prevent monopoly of political power should be balanced against the need to uphold the voters’ obvious preference who. should not be counted.. and AUSTRIA-MARTINEZ. in whose opinion QUISUMBING. his election on May 14. in accordance with the ruling in Borja. joined by CARPI0-MORALES. X. J. 295 SCRA 157 [1998].. He concluded that. Therefore. 311 SCRA 602 [1999]. Oct. He contended that as revealed by the records of the Constitutional Commission.. COMELEC... she voted to grant the petition and to declare respondent’s election on May 14. voted to dismiss the petition. in the present case. when two conflicting legal positions are of almost equal weight. Hence. joined. and Adormeo v.. 1995. MENDOZA. He argued that the Constitution does not prohibit elective local officials from serving for more than three consecutive terms because. 2001 respondent had previously served as governor of Bataan for only two consecutive terms (1995-1998 and 1998-2001). 6. He explained that. Hence. 4. in election cases. the scales of justice should be tilted in favor of the people’s overwhelming choice. because a contrary interpretation would in effect cut short the elected official’s service to less than nine years and shortchange his constituents. 1998 (res. except only in case of voluntary renunciation. No. also voted to dismiss. 1994 to June 30. . SANDOVAL-GUTIERREZ. 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. Arcos v. Feb. 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. VITUG. comprising the period June 28. his election on that day was actually only his third term for the same position.. This case is different from Socrates. be governed by leaders freely chosen by them in credible elections. should be considered as one term.. SR. in Socrates. For this reason. also voted to dismiss the petition.. Sec. Since on May 14. during which respondent Leonardo B. Since he thereafter served for two consecutive terms from 1995 to 1998 and from 1998 to 2001.. 8 of the Constitution.R. also dissented and voted to grant the petition. On the other hand. v. the Constitution envisions a continuous and an uninterrupted service for three full terms before the proscription applies.J. joined by BELLOSILLO. 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. AZCUNA. voted to dismiss the petition on the ground that. CORONA.

e. it would be unsound by an excessive zeal to remove from the Commission on Elections the initiative it takes on such questions which. by legal . Commission on Elections..” 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. Concededly. referred to a full nine (9) years of service for each elective local government official in the application of the prohibition. as so intimated in Lonzanida. in fact. Justice Vitug voted to dismiss the petition on the following considerations: In order that the three-consecutive term limit can apply. 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. A recall term then. where the Court has considered Hagedorn. still qualified to run in a recall election conducted about a year and a half after the most recent regular local elections. following his three full terms of nine years. but indeed in line. envisioning at the same time a continuous and uninterrupted period of nine years by providing for only one exception.” The law evidently contemplates a continuous full three-year term before the proscription can apply. i. The constitutional provision does not appear to be all that imprecise for and in its application.. and (2) that he has served three consecutive full terms. when an incumbent voluntarily gives up the office. This same issue has been passed and ruled upon by the Commission on Elections no less than five times.In his Separate Opinion. and its peculiar expertise in dealing with election controversies. in its deliberations. In the administration of election laws. This view is not inconsistent. allowing time and experience to merely evolve and ultimately provide acceptable solutions. Article X. X x x If involuntary severance from the service which results in the incumbent’s being unable to finish his term of office because of his ouster through valid recall proceedings negates “one term” for purposes of applying the three-term limit. 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. Xxx A winner who dislodges in a recall election an incumbent elective local official merely serves the balance of the latter’s term of office. (1) that the elective local official concerned has been elected for three consecutive terms to the same local government position. 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. 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 conclusion ultimately reached in Socrates v. should be in a good vantage point to resolve issues of this nature. The Commission on Elections. its familiarity with political realities. 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.e. The Constitutional Commission. Section 8. Consistently. i. with its fact-finding facilities. two conditions must concur. no ready made formulae are always extant to address occasional complex issues. 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. 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. not being a full three-year term. it is not a full three-year term.

1992. the complainant in AC No. 7160 (Local Government Code). petitioner alleged that in 1991. No. 12-91 had become final and executory. Commission on Elections and Leonardo B. 305 SCRA 832. the Sangguniang Panlalawigan of Zamboanga del Sur found him guilty of the charges and ordered his removal from office. 7160 on disciplinary actions is silent on the filing of a motion for reconsideration. On May 3. Respondent Roman has won the election to the post of Governor of Bataan with a comfortable margin against his closest opponent. Petitioner claimed that this decision had become final and executory. 2001. indeed a wise rule. (Melanio L. Roman. Xxx However. he filed a motion for reconsideration and/or notice of appeal thereof on February 18. 2002. While the Constitution would attempt to prevent the monopolization of political power. who is removed before the expiration of the term for which he was elected. 319 SCRA 283). Commission on Elections (212 SCRA 768 [1992]) in holding that the reelection of respondent Sulong in 1992 and 1995 as mayor of Lapuyan had the effect of condoning the misconduct for which he was ordered dismissed by the Sangguniang Panlalawigan of Zamboanga del Sur. 1995 elections. finding respondent Sulong guilty of dishonesty. 1992. the Sangguniang Panlalawigan required Jim Lingating. 12-91. 525-526 [1996]) in which we held that an elective local executive officer. and that. 149736. 17. that on February 27. 12-91. Vicente Imbing. En Banc) 371. respondent Sulong. Held: Petitioner contends that the COMELEC en banc erred in applying the ruling in Aguinaldo v. COMELEC. COMELEC. pursuant to Sec. along with a municipal councilor of Lapuyan and several other individuals. Petitioner cites Reyes v. Respondent Sulong denied that the decision in AC No. to comment on respondent Sulong’s motion for reconsideration and/or notice of appeal. not defeat. 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. and most importantly. which disqualifies from running for any elective local position “those removed from office as a result of an administrative case. Dec. he was reelected. on the electorate. 12-91) with various offenses. 1992. and consequently the then vice-mayor of Lapuyan. . 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. 1992. doubts on the candidate’s eligibility. He averred that after receiving a copy of the decision on February 17. Pangandaman v. Where a candidate appears to be the clear choice of the people. was administratively charged (AC No. the paramount will of the electorate. 1988. While R. even only as a practical matter. No. is disqualified from being a candidate for a local elective position under Section 40[b] of the Local Government Code.R. the same cannot be interpreted as a prohibition against the filing of a motion for reconsideration. Mendoza and Mario E. Ibarra v. G. Reyes cannot be applied to this case because it appears that the 1992 decision of the Sangguniang Panlalawigan. x x x. In a petition for disqualification. took his oath as mayor vice respondent Sulong on March 3. on February 4. during his first term as mayor of Lapuyan. that the said complainant had not yet complied therewith and his (respondent Sulong’s) motion had consequently remained pending. Commission on Elections (254 SCRA 514. X x x The filing of his motion for reconsideration prevented the decision of Sangguniang Panlalawigan from becoming final.A. petitioner filed with the Provincial Election Supervisor in Pagadian City a petition for the disqualification of respondent Sulong.” It appears that respondent Sulong had previously won as mayor of Lapuyan on January 18. 40[b] of Republic Act No. and again in the May 8. falsification and malversation of public funds. must be so resolved as to respect and carry out. 1992. has not until now become final.mandate properly belong to it (See Loong v. Respondent Sulong denied he had been removed from office by virtue of the decision in AC No. 1992. In the May 11.

No. a vacancy occurred in the Sanggunian that should be filled up with someone who should belong to the political party of petitioner Tamayo. 153475. 1992. Sulong. [Kapunan]) 373. 13. Nov. or is otherwise permanently incapacitated to discharge the functions of his office. With the elevation of petitioner Tamayo. fails to qualify. respectively. The Key to National Development. to the position of ViceMayor. the reason behind par. 68 of the Local Government Code. (Atty. The appointee shall come from the political party as that of the Sanggunian member who caused the vacancy x x x. voluntarily resigns. . 150).” The reason behind the right given to a political party to nominate a replacement where a permanent vacancy occurs in the Sanggunian is to maintain the party representation as willed by the people in the election (Aquilino Pimentel. Court of Appeals. refuses to assume office. (b). would result in the increase of that party’s representation in the Sanggunian at the expense of the REFORMA-LM. the Sangguniang Panlalawigan simply considered the matter as having become moot and academic because it was “overtaken by the local elections of May [11]. 2002. 28. especially since at the time of the elections on May 14. To argue that the vacancy created was that formerly held by Rolando Lalas. Otherwise. When may a permanent vacancy arise under Section 44 of the Local Government Code? Held: Under Section 44. G. En Banc [Mendoza]) 372. As earlier pointed out. who belonged to REFORMA-LM. is removed from office. the Local Government Code of 1991.There is thus no decision finding respondent guilty to speak of. be considered proof that the decision in AC No. considering the failure of the Sangguniang Panlalawigan to resolve respondent’s motion. section 44 of the Local Government Code is the maintenance of party representation in the Sanggunian in accordance with the will of the electorate. p. This interpretation is contrary to the letter and spirit of the law and thus violative of a fundamental rule in statutory construction which is to ascertain and give effect to the intent and purpose of the law (Manila Lodge No.R. Indeed. which makes decisions in administrative cases immediately executory. Mar. 1st Div. 2001. the decision of the Sangguniang Panlalawigan had been rendered nearly ten years ago. 2001. (Navarro v. Miguel M. Lingating v. 355 SCRA 672. As Provincial Secretary of Zamboanga del Sur Wilfredo Cimafranca attested. a LAKAS-NUCD-Kampi member. Court of Appeals. it is unfair to the electorate to be told after they have voted for respondent Sulong that after all he is disqualified. How is Section 45(b) of the Local Government Code to be interpreted? What is the reason behind the right given to a political party to nominate a replacement where a permanent vacancy occurs in the Sanggunian? Held: What is crucial is the interpretation of Section 45(b) providing that “x x x only the nominee of the political party under which the Sanggunian member concerned has been elected and whose elevation to the position next higher in rank created the last vacancy in the Sanggunian shall be appointed in the manner hereinabove provided. 12-91 had become final because it appears to have been made pursuant to Sec. 73 SCRA 12 [1976]). Commission on Elections and Cesar B. 761 v. a permanent vacancy arises when an elective official fills a higher vacant office. dies.” 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. REFORMA-LM’s representation in the Sanggunian would be diminished.

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. 7160).A. (Sec. (Sec. Mar. (Sec. 8 position which occurred with the elevation of Rolando Lalas to the seventh position in the Sanggunian. (b) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office. Such construction will result in absurdity. and (d) Use property and personnel of the government except when the sanggunian member concerned is defending the interest of the Government. [Kapunan]) 374. while the City of Pasig vigorously claims that the areas covered by the proposed Barangays Karangalan and Napico are within its territory. 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. 2001. to define the territorial jurisdiction of the proposed barangays would only be an exercise in futility. Not only that. 90[b]. Held: To begin with. X x x . agency. LGC) Sanggunian members who are also members of the Bar shall not: (a) Appear as counsel before any court in any civil case wherein a local government unit or any office. or teach in schools except during session hours. LGC) Sanggunian members may practice their profession. Surely. Court of Appeals. (c) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official. R. 386[b]. LGC) 375. 45 (b) to differentiate it from the other vacancy previously created. 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. 90[a]. 28. (Navarro v. 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. 90[b]. The term “last vacancy” is thus used in Sec. Precisely because territorial jurisdiction is an issue raised in the pending civil case. Whether or not the plebiscites scheduled for the creation of Barangays Karangalan and Napico should be suspended or cancelled in view of the pending boundary dispute between the two local governments.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. Xxx In the case at bar. 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. The term by no means refers to the vacancy in the No. until and unless such issue is resolved with finality.: All governors. No. we agree with the position of the COMELEC that Civil Case No. Indeed. we would be paving the way for potentially ultra vires acts of such barangays. 355 SCRA 672. or instrumentality of the government is the adverse party. engage in any occupation. May local elective officials practice their profession or engage in any occupation? Ans. 1st Div.

Principles of International Law.Moreover. 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. An extraditee. he is bereft of rights. The International Covenant on Economic. Xxx Therefore. The Role of Human Rights and Issues of Extraterritoriality Under International Criminal Law. p. En Banc [Ynares-Santiago]) PUBLIC INTERNATIONAL LAW 376. Social and Cultural Rights [1966] and The International Covenant on Civil and Political Rights [1966]). Sept. Jurisdiction. 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. 44 [1991]) The re-examination consigned this pernicious doctrine to the museum of ideas (See generally Kelsen. Vanderbilt Journal of Transnational Law. 1997 to ratify the creation of Barangay Napico. the drive to internationalize rights of women and children is also on high gear (The Convention on the Elimination of All Forms of Discrimination Against Women [CEDAW] otherwise known as “The Bill of Rights for Women” was adopted by the UN General Assembly in December 1979. Translated in extradition law. 314 SCRA 179. The 20th century saw the dramatic rise and fall of different types and hues of authoritarianism – the fascism of Italy’s Mussolini and Germany’s Hitler. [1966]. is a mere “object transported from one state to the other as an exercise of the sovereign will of the two states involved. The sinking of these isms led to the elevation of the rights of the individual against the state. Special Adviser to the Secretary General of the UN on Gender Issues and Advancement of Women. Neither do we agree that merely because a plebiscite had already been held in the case of the proposed Barangay Napico. Judicial Colloquium on the Application of International Human Rights Law at the Domestic Level.” (Blakesley and Lagodny. some species of human rights have already been accorded universal recognition (See Universal Declaration of Human Rights [1948]. As of November 1999. Finding Harmony Amidst Disagreement Over Extradition. No. considering the expenses entailed in the holding of plebiscites. one hundred sixty seven [167] states including the Philippines have ratified or acceded to it. the view that once commanded a consensus is that since a fugitive is a mere object and not a subject of international law. See Statement of Angela King. the petition of the Municipality of Cainta has already been rendered moot and academic. Today. 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. etc. 2nd ed. Discuss the contemporary view on the rightful place of an Individual in International Law? Does he remain a mere “object” of International Law. should be annulled and set aside. Indeed. (City of Pasig v. 10. Korowicz. 1999. 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. it is far more prudent to hold in abeyance the conduct of the same. 1999). COMELEC. 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. For its undesirable corollary is that sub-doctrine that an individual’s right in international law is a near cipher. Austria. The Problem of the . so it was held. October 27. Pasig City. Given the harshest eye is the moss-covered doctrine that international law deals only with States and that individuals are not its subject. Vol. 1. In the same vein. the plebiscite held on March 15. Vienna. the militarism of Japan’s Hirohito and the communism of Russia’s Stalin. 24.

the termination of war. the formation of alliances. treaties really limit or restrict the absoluteness of sovereignty. Thus. Is sovereignty really absolute and all-encompassing? limitations? If not. 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. 18. By their voluntary act. 50 Am. Law 553 [1966]). nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. in Jeffrey Liang [Huefeng] v. 2000. 1st Div. 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. Certain restrictions enter into the picture: (1) limitations . Lantion.R. G. 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 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. Ralph C. No. [Motion for Reconsideration]) 377. national legislative enactments. what are its restrictions and Held: While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level. the country is bound by generally accepted principles of international law.. 125865. they also commonly agree to limit the exercise of their otherwise absolute rights. the laying down of rules governing conduct in peace and the establishment of international organizations. In a situation however. decrees that rules of international law are given equal standing with. the lease of naval bases. Jan. states. it is however subject to restrictions and limitations voluntarily agreed to by the Philippines. Int’l. 2001. 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. both statutes and treaties may be invalidated if they are in conflict with the Constitution. By the doctrine of incorporation. treaties have been used to record agreements between States concerning such widely diverse matters as. (Secretary of Justice v. Efforts should first be exerted to harmonize them. G. 139465. In states where the Constitution is the highest law of the land.International Personality of Individuals. 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.R. X x x (Concurring Opinion. The sovereignty of a state therefore cannot in fact and in reality be considered absolute. and in pursuit of mutually covenanted objectives and benefits. By their inherent nature. live with coequals. the sale or cession of territory. 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. where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law. En Banc [Melo]) 378. as a member of the family of nations. Article II of the Constitution. People. The doctrine of incorporation. 26. for example. Hon. the regulation of commercial relations. No. Puno J. the settling of claims. like individuals. Mar. as applied in most countries.. such as the Republic of the Philippines. Accordingly. but are not superior to. 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. What is the doctrine of incorporation? How is it applied by local courts? Held: Under the doctrine of incorporation. the regulation of conduct of hostilities. After all. expressly or impliedly. J. the principle of lex posterior derogat priori takes effect – a treaty may repeal a statute and a statute may repeal a treaty.

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. 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. Its first task is to persuade the Philippine government to take up with the Holy See the validity of its claim. World Court Reports 293. 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. The Vatican City fits into none of the established categories of states. In 1929. Rosario. 302 [1924]). 272 SCRA 18. Selected Readings on Protection by Law of Private Foreign Investments 905. Some writers even suggested that the treaty created two international persons . (Tanada v. Jr.7 acres. En Banc [Quiason]) 380. respect for the rules of international law” (The Mavrommatis Palestine Concessions. Italy and the Holy See entered into the Lateran Treaty.imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty stipulations. the Foreign Office shall first make a determination of the impact of its espousal on the relations between the Philippine government and the Holy See (Young. with the Pope. Private respondent can ask the Philippine government. the Vatican City represents an entity organized not for political but for ecclesiastical purposes and international objects. Discuss the Status of the Vatican and the Holy See in International Law. 1994. through the Foreign Office. 1 Hudson. Remedies of Private Claimants Against Foreign States. to espouse its claims against the Holy See. (Holy See. According to the Permanent Court of International Justice. 538-539. in the person of its subjects. and the attribution to it of “sovereignty” must be made in a sense different from that in which it is applied to other states . May 2. Once the Philippine government decides to espouse the claim. Under both Public International Law and Transnational Law. the Vatican City has an independent government of its own.. the latter ceases to be a private cause. 238 SCRA 524. as the Holy See. 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. Angara. In a community of national states. 1. who is also head of the Roman Catholic Church. Of course. The v. where Italy recognized the exclusive dominion and sovereign jurisdiction of the Holy See over the Vatican City. Dec. the position of the Holy See in International Law became controversial. 919 [1964]).” In view of the wordings of the Lateran Treaty.the Holy See and Vatican City. Despite its size and object. to send its own diplomats to foreign countries. 1997 [Panganiban]) 379. a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels. the Pope was the monarch and he. Held: Before the annexation of the Papal States by Italy in 1870.its right to ensure. and to enter into treaties according to International Law. as . It also recognized the right of the Holy See to receive foreign diplomats. a State is in reality asserting its own rights . it is difficult to determine whether the statehood is vested in the Holy See or in the Vatican City.

. The Holy See. En Banc [Quiason]) 381. 206 SCRA 283. it is the Holy See that is the international person. Held: International organizations are institutions constituted by international agreement between two or more States to accomplish common goals. This appears to be the universal practice in international relations. the world-wide interests and activities of the Vatican City are such as to make it in a sense an “international state.that it is possible for any entity pursuing objects essentially different from those pursued by states to be invested with international personality. 14. but in international law as well. they have distinct juridical personality independent of the municipal law of the State where they are situated. a sovereign cannot. through its Ambassador.” One authority wrote that the recognition of the Vatican City as a state has significant implication . (Holy See. Jr. According to the classical or absolute theory. Held: One of the basic immunities of an international organization is immunity from local jurisdiction. i. and the demands of its mission in the world. the law declared that the “commercial character . the Papal Nuncio. 238 SCRA 524. (SEAFDEC-AQD v. has had diplomatic representations with the Philippine government since 1957. (SEAFDEC-AQD v. but not with regard to private acts or acts jure gestionis. Feb. the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state. in conformity with its traditions. they are deemed to possess a species of international personality of their own. According to the newer or restrictive theory. that it is immune from legal writs and processes issued by the tribunals of the country where it is found. 1992) 383. each widely held and firmly established.e. 1992) 382. Feb. Held: There are two conflicting concepts of sovereign immunity. In so far as they are autonomous and beyond the control of any one State. Rosario. 533-534. 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. The v. economic or social and mainly nonpolitical. without its consent. As such. Indeed. such subjection to local jurisdiction would impair the capacity of such body to discharge its responsibilities impartially on behalf of its member-states. What are international organizations? Discuss their nature.. Permanent international commissions and administrative bodies have been created by the agreement of a considerable number of States for a variety of international purposes.the Holy See or Head of State. NLRC. Dec.” Furthermore. 206 SCRA 283. The legal personality of these international organizations has been recognized not only in municipal law. NLRC. 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. be made a respondent in the courts of another sovereign. which defines a commercial activity as “either a regular course of commercial conduct or a particular commercial transaction or act. The United States passed the Foreign Sovereign Immunities Act of 1976. besides. 1994. 1. Discuss the two conflicting concepts of sovereign immunity from suit. 4. The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. Some states passed legislation to serve as guidelines for the executive or judicial determination when an act may be considered as jure gestionis. Discuss the basic immunities of international organizations and the reason for affording them such immunities.

Jr. act or conduct or any regular course of conduct that by reason of its nature.. If the foreign state is not engaged regularly in a business or trade. has created problems of its own. 182 SCRA 644 [1990]). a store. (Holy See. 182 SCRA 644 [1990]. and (2) the bidding for the operation of barber shops in Clark Air Base in Angeles City (United States of America v. especially when it is not undertaken for gain or profit. (Holy See. 312 [1949]). Rodrigo.of the activity shall be determined by reference to the nature of the course of conduct or particular transaction or act. Guinto (supra. 84 Phil. the United States government impliedly divested itself of it sovereign immunity from suit. The v. or an incident thereof. The Act defines a “commercial activity” as any particular transaction. 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. Dec. 1994. Veridiano. 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. 1994. Rosario. Such an act can only be the start of the inquiry. tentative they may be. The v. Ruiz. 1. En Banc [Quiason]) 384. and a coffee and pastry shop at the John Hay Air Station in Baguio 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. is of a “commercial character.). the particular act or transaction must then be tested by its nature.): . The restrictive theory came about because of the entry of sovereign states into purely commercial activities remotely connected with the discharge of governmental functions. Guinto. consisting of three restaurants.” Held: This Court has considered the following transactions by a foreign state with private parties as acts jure imperii: (1) the lease by a foreign government of apartment buildings for use of its military officers (Syquia v. 162 SCRA 88 [1988]). (2) the conduct of public bidding for the repair of a wharf at a United States Naval Station (United States of America v. to cater to American servicemen and the general public (United States of America v. This is particularly true with respect to the Communist states which took control of nationalized business activities and international trading. rather than by reference to its purpose. a cafeteria.” The Canadian Parliament enacted in 1982 an Act to Provide For State Immunity in Canadian Courts. a bakery. Dec. Certainly. 238 SCRA 524. and (3) the change of employment status of base employees (Sanders v. we have to come out with our own guidelines. En Banc [Quiason]) 385. 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. Jr. Rosario. By entering into the employment contract with the cook in the discharge of its proprietary function. If the act is in pursuit of a sovereign activity. 238 SCRA 524. The logical question is whether the foreign state is engaged in the activity in the regular course of business. 1. which is intended to be a solution to the host of problems involving the issue of sovereign immunity. supra.” The restrictive theory. On the other hand. the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. then it is an act jure imperii. As held in United States of America v. Lopez. 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.

Rosario. 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. However. 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 Article 31(a) of the Convention.. if petitioner (Holy See) has bought and sold lands in the ordinary course of a real estate business. with all the more reason should immunity be recognized as regards the sovereign itself. The donation was made not for commercial purpose. It is only when the contract involves its sovereign or governmental capacity that no such waiver may be implied. 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. X x x Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. Jr. 238 SCRA 524.” 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. (Holy See. The v. Dec. but for the use of petitioner to construct thereon the official place of residence of the Papal Nuncio. 190 SCRA 130 (1990). In International Catholic Migration Commission v. petitioner has denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. If the Secretary of State finds that the defendant is immune from suit. This treaty was concurred in by the Philippine Senate and entered into force in the Philippines on November 15. a similar procedure is followed. only the Foreign Office issues a certification to that effect instead of submitting a “suggestion”. If this immunity is provided for a diplomatic envoy. when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court. the Secretary of Foreign Affairs just sent a letter directly to . In the United States. real or personal.. 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. Petitioner did not sell Lot 5-A for profit or gain. in turn.“There is no question that the United States of America. Calleja. the procedure followed is the process of “suggestion. 1. En Banc [Quiason]) 386. The v. Jr. But how the Philippine Foreign Office conveys its endorsement to the courts varies. in a receiving state. is recognized in the 1961 Vienna Convention on Diplomatic Relations. 1965. In England. surely the said transaction can be categorized as an act jure gestionis. will be deemed to have impliedly waived its non-suability if it has entered into a contract in its proprietary or private capacity. asks the Attorney General to submit to the court a “suggestion” that the defendant is entitled to immunity. In the Philippines. 238 SCRA 524. Dec. 1994. which in this case is the Holy See. necessary for the creation and maintenance of its diplomatic mission.” (Holy See. Rosario. The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental character. How is sovereign or diplomatic immunity pleaded in a foreign court? Held: In Public International Law. En Banc [Quiason]) 387. like any other state. 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. he. 1994. The right of a foreign sovereign to acquire property. 1.

the privilege of sovereign immunity in this case was sufficiently established by the Memorandum and Certification of the Department of Foreign Affairs. or is it a political question and therefore. the position of the Holy See in International Law became controversial (Salonga and Yap. Rosario. Held: Before the annexation of the Papal States by Italy in 1870. The Solicitor General embodied the “suggestion” in a Manifestation and Memorandum as amicus curiae. . En Banc [Quiason]) 388. and to enter into treaties according to International Law (Garcia. 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. Discuss the Status of the Vatican and the Holy See in International Law. I International Law 311 [1965]). through the Office of Legal Affairs moved with this Court to be allowed to intervene on the side of petitioner. Jr. to send its own diplomats to foreign countries. the U. the courts can inquire into the facts and make their own determination as to the nature of the acts and transactions involved.. En Banc [Quiason]) 389. 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. Aquino.the Secretary of Labor and Employment. we abide by the certification of the Department of Foreign Affairs. it is the duty of the courts to accept this claim so as not to embarrass the executive arm of the government in conducting the country’s foreign relations. Public and Private 81 [1948]). privileges and immunities of a diplomatic mission or embassy in this country. the Secretary of Foreign Affairs sent the trial court a telegram to that effect. With the loss of the Papal States and the limitation of the territory under the Holy See to an area of 108. was considered a subject of International Law. In the case at bench. 238 SCRA 524. Public International Law 36-37 [1992]). Rosario.. Zambales. The v. In Baer v. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to make. The v. the Pope was the monarch and he. Dec. In cases where the foreign states bypass the Foreign Office. As in International Catholic Migration Commission and in World Health Organization. a “suggestion” to respondent Judge. 1. the Department of Foreign Affairs. In World Health Organization v. The Court allowed the said Department to file its memorandum in support of petitioner’s claim of sovereign immunity. conclusive upon the courts? Held: The issue of petitioner’s (The Holy See) non-suability can be determined by the trial court without going to trial in light of the pleadings x x x. the defense of sovereign immunity was submitted directly to the local courts by the respondents through their private counsels. Tizon. (Holy See. in behalf of the commander of the United States Naval Base at Olongapo City. where Italy recognized the exclusive dominion and sovereign jurisdiction of the Holy See over the Vatican City. Besides. 48 SCRA 242 (1972). 1994. 238 SCRA 524. Italy and the Holy See entered into the Lateran Treaty.7 acres. 1.S. Questions and Problems in International Law. As the department tasked with the conduct of the Philippines’ foreign relations. In some cases. Where the plea of immunity is recognized and affirmed by the executive branch. 1994. It also recognized the right of the Holy See to receive foreign diplomats. informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity. (Holy See. In 1929. Jr. as the Holy See. 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. Dec. 57 SCRA 1 (1974). The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field of international relations" (O'Connell.

Indeed. International Law 37 [1991]). The Vatican City fits into none of the established categories of states. En Banc) 391. International Law 124-125 [1948]. 2nd ed. it is difficult to determine whether the statehood is vested in the Holy See or in the Vatican City.the Holy See and Vatican City (Salonga and Yap. This appears to be the universal practice in international relations.. at other times. 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. Some writers even suggested that the treaty created two international persons . . 2000. cited in Dissenting Opinion. Puno. Cruz. It applies to those who are merely charged with an offense but have not been brought to trial.. who is also head of the Roman Catholic Church. in conformity with its traditions. In sharp contrast. 125. D' Amato. 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. (Holy See. and those who have been convicted in absentia. 533-534. supra. No. the Vatican City has an independent government of its own. Falk. Hon. 139465. Principles of International Law 160 [1956]). the Papal Nuncio. with the Pope. En Banc [Quiason]) 390. The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign.whether the duty is legal or moral in character. Jr. Chaldeans and Assyro-Babylonians but their basis for allowing extradition was unclear. p. due to plain good will. and the demands of its mission in the world. 1994.R. has had diplomatic representations with the Philippine government since 1957. 46 The American Journal of International Law 308 [1952]). it was granted due to pacts. one can conclude that in the Pope's own view. it is the Holy See that is the international person. Ralph C. in Secretary of Justice v. as the Holy See or Head of State. 630 [1990]. Dec. the Vatican City represents an entity organized not for political but for ecclesiastical purposes and international objects. Jan. 37). The classical commentators on international law thus focused their early views on the nature of the duty to surrender an extraditee --. 238 SCRA 524. Despite its size and object. the world-wide interests and activities of the Vatican City are such as to make it in a sense an “international state” (Fenwick.” (Weston. The Status of the Holy See in International Law. Discuss the basis for allowing extradition.. Sometimes. 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. Grotius and Vattel led the school of thought that international law imposed a legal duty called civitas maxima to extradite criminals. Held: Extradition was first practiced by the Egyptians. J. One authority wrote that the recognition of the Vatican City as a state has significant implication that it is possible for any entity pursuing objects essentially different from those pursued by states to be invested with international personality (Kunz. and the attribution to it of “sovereignty” must be made in a sense different from that in which it is applied to other states (Fenwick. 18. supra. through its Ambassador. G. International Law and Order. The v. 1. Kelsen. The Holy See. In a community of national states.In view of the wordings of the Lateran Treaty. Lantion. Rosario. to those who have been tried and convicted and have subsequently escaped from custody. Chinese. 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.

This being so. Galanis: “An extradition proceeding is not a criminal prosecution. 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.” Finally. G. 139465. 2000. Supp. Thus. in Secretary of Justice v. As an extradition proceeding is not criminal in character and the evaluation stage in an extradition proceeding is not akin to a preliminary investigation. Ralph C. 411. Lantion.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.” The concept of due process is flexible for “not all situations calling for procedural safeguards call for the same kind of procedure. No. In terms of the quantum of evidence to be satisfied. the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. Conn. 139465. 2000. Hence. 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.R. En Banc) 392. As held by the US Supreme Court in United States v. Galanis. No. unlike in a criminal case where judgment becomes executory upon being rendered final. ed. 30 L. Lantion. G. 234. there is no merit in the contention that the ruling sustaining an extradition treaty’s retroactive application violates the constitutional prohibition against ex . To begin with. and the constitutional safeguards that accompany a criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty. 425 [1886]). J. 1215 [D. the due process safeguards in the latter do not necessarily apply to the former. and though such delivery was often made it was upon the principle of comity x x x. An extradition proceeding is summary in natural while criminal proceedings involve a full-blown trial. This has been done generally by treaties x x x Prior to these treaties. Oct. citing United States v. in an extradition proceeding. Hon. Puno.R. our courts may adjudge an individual extraditable but the President has the final discretion to extradite him. Rauscher (119 US 407. 429 F. the US Supreme Court in US v. 18.” (Secretary of Justice v. In contradistinction to a criminal proceeding. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Jan.” (Dissenting Opinion. 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 process of extradition does not involve the determination of the guilt or innocence of an accused. 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. 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.. 19 Michigan Journal of International Law 729.” (Wiehl. Extradition Law at the Crossroads: The Trend Toward Extending Greater Constitutional Procedural Protections To Fugitives Fighting Extradition from the United States. 7 S Ct. 741 [1998]. What is the nature of an extradition proceeding? Is it akin to a criminal proceeding? Held: [A]n extradition proceeding is sui generis. 1977]) There are other differences between an extradition proceeding and a criminal proceeding. for trial and punishment. 236. 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. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. and apart from them there was no well-defined obligation on one country to deliver up such fugitives to another. whether bilateral or multilateral. as a rule. 17. En Banc [Puno]) 393. Ralph C. Hon.

where the presumption of innocence is not an issue. Article VII. Moreover. unless his guilt be proved beyond reasonable doubt. countries like the Philippines forge extradition treaties to arrest the dramatic rise of international and transnational crimes like terrorism and drug trafficking. 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. It cannot be gainsaid that today. The rule is recognized that while courts have the power to interpret treaties. 235 SCRA 341. 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. No. should be interpreted in light of their intent. Enage. 18. because extradition courts do not render judgments of conviction or acquittal. 139465. Lantion.” (De la Camara v. [later CJ]) It follows that the constitutional provision on bail will not apply to a case like extradition. 2000. The treaty is neither a piece of criminal legislation nor a criminal procedural statute. 1971.” (Sec. (210 SCRA 256. including the RP-US Extradition Treaty. Is respondent Mark Jimenez entitled to bail during the pendency of the Extradition Proceeding? Held: We agree with petitioner. 1994 [Kapunan]) 394. He should apply for bail before the courts trying the criminal cases against him. As suggested by the use of the word “conviction. It does not apply to extradition proceedings. . extradition proceedings are separate and distinct from the trial for the offenses for which he is charged. September 17. the meaning given them by the departments of government particularly charged with their negotiation and enforcement is accorded great weight. Hon. Constitution) Hence. 261 [1992]). 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. applies only when a person has been arrested and detained for violation of Philippine criminal laws. per Fernando. En Banc [Puno]) 395. 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. 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. Oct. 41 SCRA 1. Extradition treaties provide the assurance that the punishment of these crimes will not be frustrated by the frontiers of territorial sovereignty. Ralph C. Northwest Orient Airlines. To stress. 15. 6. et al.” X x x.” the constitutional provision on bail x x x. The reason for the rule is laid down in Santos III v. the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. CA. 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. 17.post facto laws. as well as Section 4 of Rule 114 of the Rules of Court. G. 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. (Wright v.R. Held: [A]ll treaties. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. Discuss the rules in the interpretation of extradition treaties. Implicit in the treaties should be the unbending commitment that the perpetrators of these crimes will not be coddled by any signatory state. Aug. Jr. 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.

Constitutional Law. Hon. the applicant will not be a flight risk or a danger to the community. Furthermore. In its barest concept. bail may be applied for and granted as an exception. No. 148571.R. Are there special circumstances compelling enough for the Court to grant Mark Jimenez’s request for provisional release on bail? Held: Along this line. 1998 ed. we believe and so hold that. 2000. so that the vital international and bilateral interests of our country will not be unreasonably impeded or compromised. it was already of public knowledge that the United States was requesting his extradition. as well as the power to promulgate rules to protect and enforce constitutional rights. Indeed. including his detention pending the final resolution of the case. as a matter of reciprocity.” (I. Cruz. we are constrained to rule against his claim that his election to public office is by itself a compelling reason to grant him bail. En Banc [Panganiban]) 397. The Court realizes that extradition is basically an executive. 98) Accordingly and to best serve the ends of justice. his constituents were or should have been prepared for the consequences of the extradition case against their representative. Hon. he claims that his detention will disenfranchise his Manila district of 600. 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. Alleged Disenfranchisement While his extradition was pending. we believe that the right to due process is broad enough to include the grant of basic fairness to extraditees. February 3. adaptable to every situation calling for its application. G. Sept. the judiciary has the constitutional duty to curb grave abuse of discretion and tyranny. 24.not before the extradition court. Since this exception has no express or specific statutory basis. Premises considered and in line with Jalosjos. We are not persuaded. J.R. En Banc [Panganiban]) 396. 148571. once granted bail. 2002. the applicant bears the burden of proving the above two-tiered requirement with clarity. the right to due process extends to the “life. Anticipated Delay . 1. It must be noted that even before private respondent ran for and won a congressional seat in Manila. Jalosjos (324 SCRA 689. any intrusion by the courts into the exercise of this power should be characterized by caution. Hence.” it also recognizes the limits of its own prerogatives and the need to fulfill international obligations. On that basis. G. (Government of the United States of America v.000 residents. Hence. it partakes of the nature of police assistance amongst states. It is “dynamic and resilient. We have carefully examined these circumstances and shall now discuss them.). liberty or property” of every person. not a judicial. only upon a clear and convincing showing (1) that. 2. humanitarian and compelling circumstances including. after a potential extraditee has been arrested or placed under the custody of the law. and (2) that there exist special. Jimenez contends that there are special circumstances that are compelling enough for the Court to grant his request for provisional release on bail. responsibility arising from the presidential power to conduct foreign relations. In People v. Guillermo Purganan. while this Court is ever protective of “the sporting idea of fair play. the Court has already debunked the disenfranchisement argument x x x. those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein. However. Respondent Jimenez was elected as a member of the House of Representatives.. Guillermo Purganan. 24.A. (Government of the United States of America v. per Ynares-Santiago. and since it is derived essentially from general principles of justice and fairness. p. No. Sept. In short. which is not normally a judicial prerogative. precision and emphatic forcefulness. 2002.

he has not actually fled during the preliminary stages of the request for his extradition. he stresses that he learned of the extradition request in June 1999. yet. . 1. Neither is it. 3. extradition treaties are entered into for the purpose of suppressing crime by facilitating the arrest and custodial transfer (Bassiouni. They are resorted to merely to determine whether the extradition petition and its annexes conform to the Extradition Treaty. he has not fled the country. supra. In the present case. En Banc [Panganiban]) 398. as a rule. even after bail has been previously denied. the extradition court may continue hearing evidence on the application for bail. However. any further discussion of this point would be merely anticipatory and academic. G. Guillermo Purganan. with all the more reason would the grant of bail not be justified. in bad faith. Held: Discuss the Five Postulates of Extradition. if the delay is due to maneuverings of respondent. unduly delay the proceedings. governments are adjusting their methods of dealing with criminals and crimes that transcend international boundaries. that is. which may be granted in accordance with the guidelines in this Decision. With the advent of easier and faster means of international travel. intended to address issues relevant to the constitutional rights available to the accused in a criminal action. Hon. 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. Accordingly. upon the resolution of the Petition for Extradition. “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. This is quite another matter that is not at issue here. p. In any event.R. (Government of the United States of America v. Thus. 24. 68) of a fugitive from one state to the other. It would also encourage him to stretch out and unreasonably delay the extradition proceedings even more.” (Bassiouni. as he hears the footsteps of the requesting government inching closer and closer. First. Not a Flight Risk? Jimenez further claims that he is not a flight risk. True. 148571. To support this claim. International Extradition. This we cannot allow. 2002. We are not overruling the possibility that petitioner may. not to determine his guilt or innocence. Yet. 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. Today. No. Sept. Again we are not convinced.Respondent Jimenez further contends that because the extradition proceedings are lengthy. this fact cannot be taken to mean that he will not flee as the process moves forward to its conclusion. Extradition Is a Major Instrument for the Suppression of Crime. 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. We must emphasize that extradition cases are summary in nature. 1987 ed.. the flight of affluent criminals from one country to another for the purpose of committing crime and evading prosecution has become more frequent. it would be unfair to confine him during the pendency of the case.

we cannot afford to be an isolationist state. extradition proceedings are not criminal in nature. 67). and that both accept and trust. Lantion (Supra). our duly authorized representative’s signature on an extradition treaty signifies our confidence in the capacity and willingness of the other state to protect the basic rights of the person sought to be extradited (See Bassiouni. and our legislative branch ratified it. supra. The Proceedings Are Sui Generis. and an expanding ring of international crimes and criminals.. August 31.” The Lawyers Review. the treaty would not have been signed. citing 221 US 508. upon extradition to the requesting state.). the Treaty carries the presumption that its implementation will serve the national interest.. 545). particularly an extradition treaty that hinges on reciprocity. p. It is not part of the function of the assisting authorities to enter into questions that are the prerogative of that jurisdiction (Shearer. our executive branch of government voluntarily entered into the Extradition Treaty. as pointed out in Secretary of Justice v. Second. we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty (Secretary of Justice v. 2000. Compliance Shall Be in Good Faith. p. Xxx Given the foregoing. Such failure would discourage other states from entering into treaties with us. supra. 1971 ed. The Requesting State Will Accord Due Process to the Accused. Third. Xxx Indeed. We need to cooperate with other states in order to improve our chances of suppressing crime in our country. On the other hand. Hence. More pointedly. Lantion. 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. each other’s legal system and judicial process (Coquia. This principle requires that we deliver the accused to the . in this era of globalization. an extradition treaty presupposes that both parties thereto have examined. “On Implementation of the RP-US Extradition Treaty. 21) It is the only regular system that has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with municipal and international law (Id. Constitution). In criminal proceedings. 512 [1910]). all relevant and basic rights in the criminal proceedings that will take place therein.p. 4. Lantion. the constitutional rights of the accused are at fore. 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. 3. or would have been directly attacked for its unconstitutionality. Extradition in International Law. That signature signifies our full faith that the accused will be given. Fourth. otherwise. Verily. it is evident that the extradition court is not called upon to ascertain the guilt or the innocence of the person sought to be extradited (Secretary of Justice v. failure to fulfill our obligations thereunder paints at bad image of our country before the world community. p.. p. Such determination during the extradition proceedings will only result in needless duplication and delay. in extradition which is sui generis – in a class by itself – they are not. and whether the person sought is extraditable (Id. 4). Section 2. The ultimate purpose of extradition proceedings in court is only to determine whether the extradition request complies with the Extradition Treaty. easier and faster international travel.). 157). 2. p. 546.

March 23. underlying high risk of flight. Sept. 2002. 3. 40. is entitled to the delivery of the accused on the issue of the proper warrant. 407 [Summer 1988]). extradition hearings would not even begin. En Banc [Panganiban]) 399. 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. the Philippines must be ready and in a position to deliver the accused. what is there to stop him.S. In other words. as set forth in the Treaty. These circumstances point to an ever-present. G. 2. complies with the Extradition Treaty and Law. Fifth. Indeed. from fleeing a second time? (Government of the United States of America v. 62. It is more akin. and whether the person sought is extraditable. and whether the person sought is extraditable. to a court’s request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail. when it has done all that the treaty and the law require it to do. Hon. 190 U. whether it complies with the Extradition Treaty and Law. By entering into an extradition treaty. Having fled once. Discuss the Ten Points to consider in Extradition Proceedings? Held: 1. if only the accused were willing to submit to trial in the requesting country (Persily. the Philippines is deemed to have reposed its trust in the reliability or soundness of the legal and judicial system of its treaty partner. J. and (2) remaining in the requested state despite learning that the requesting state is seeking his return and that the crimes he is charged with are bailable – eloquently speak of his aversion to the processes in the requesting state. should it be found proper. If convinced that a prima facie case exists. “International Extradition and the Right to Bail. Immediately upon receipt of the petition for extradition and its supporting documents.” 34 Stan. extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined. The magistrate has discretion to require the petitioner to submit further documentation. Having once escaped the jurisdiction of the requesting state. Henkel. the reasonable prima facie presumption is that the person would escape again if given the opportunity.” (Wright v. 5. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition. By nature then. 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. given sufficient opportunity. 24. 1903) Accordingly. the judge immediately issues a warrant for the . Prior acts of herein respondent – (1) leaving the requesting state right before the conclusion of his indictment proceedings there. The present extradition case further validates the premise that persons sought to be extradited have a propensity to flee. and the other government is under obligation to make the surrender. supported by its annexes and the evidence that may be adduced during the hearing of the petition. are satisfied. Guillermo Purganan. as well as his predisposition to avoid them at all cost. so that the criminal process may proceed therein. 4. 148571.requesting country if the conditions precedent to extradition. This prima facie presumption finds reinforcement in the experience of the executive branch: nothing short of confinement can ensure that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state. the judge shall make a prima facie finding whether the petition is sufficient in form and substance. persons to be extradited are presumed to be flight risks.R. He has demonstrated that he has the capacity and the will to flee. if at all. Consequently. or to personally examine the affiants or witnesses. “[t]he demanding government. There Is an Underlying Risk of Flight. an extradition case is not one in which the constitutional rights of the accused are necessarily available. No. Int’l L.

5. Held: A treaty. have pointed out that the names or titles of international agreements included under the general term treaty have little or no significance. a bastion of liberty. compromis d' arbitrage. Indeed. lest these summary extradition proceedings become not only inutile but also sources of international embarrassment due to our inability to comply in good faith with a treaty partner’s simple request to return a fugitive. concordat. frustrate. some of which are: act. 8. Worse. 24. Due process does not always call for a prior opportunity to be heard. 6. After being taken into custody. pact.R. 10. 2002. 9. All writers. while safeguarding basic individual rights. declaration. convention. G. They should not allow contortions. In extradition cases. checkmate and defeat the quest for bilateral justice and international cooperation. under the principle of reciprocity as a special circumstance. 7. the Executive Department of government has broad discretion in its duty and power of implementation. mummify. statute. En Banc [Panganiban]) 400. responsibility arising out of the presidential power to conduct foreign relations and to implement treaties. The grounds used by the highest court in the requesting state for the grant of bail therein may be considered. potential extraditees may apply for bail. A subsequent opportunity is sufficient due to the flight risk involved. it is subject to judicial discretion in the context of the peculiar facts of each case. bail is not a matter of right. delays and technicalities that may negate that purpose. extradition proceedings should be conducted with all deliberate speed to determine compliance with the Extradition Treaty and Law. humanitarian or compelling circumstances. whether embodied in a single instrument or in two or more related instruments. from Hugo Grotius onward. 148571. Certain terms are useful. not a judicial. delays and “over-due process” every little step of the way. (Government of the United States of America v. On the other hand. charter and modus vivendi. Potential extraditees are entitled to the rights to due process and to fundamental fairness. agreement. protocol.arrest of the potential extraditee and summons him or her to answer and to appear at scheduled hearings on the petition. as defined by the Vienna Convention on the Law of Treaties. to avoid the legalistic contortions. is “an international instrument concluded between States in written form and governed by international law. This Court will always remain a protector of human rights. We realize that extradition is essentially an executive. What is a Treaty? Discuss. At bottom. our country should not be converted into a dubious haven where fugitives and escapees can unreasonably delay. Sept. they have the burden of showing that (a) there is no flight risk and no danger to the community. courts merely perform oversight functions and exercise review authority to prevent or excise grave abuse and tyranny.” There are many other terms used for a treaty or international agreement. exchange of notes. Since the applicants have a history of absconding. Hon. 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. Guillermo Purganan. a bulwark of democracy and the conscience of society. but they furnish little more than mere description . and. No. Thus. mock. and whatever its particular designation. and (b) there exist special. 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.

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. mostfavored-nation rights. " (BAYAN [Bagong Alyansang Makabayan] v. 138570. conventions. recommendations and other acts agreed upon and signed by the plenipotentiaries attending the conference. or to the meanings which may be given to them in the internal law of the State.R. G. as long as the functionaries have remained within their powers . there is no difference between treaties and executive agreements in their binding effect upon states concerned. It is rather a summary of the proceedings of a protracted conference which may have taken place over several years. It is not the treaty itself. Does the Philippines recognize the binding effect of executive agreements even without the concurrence of the Senate or Congress? Held: In our jurisdiction. Held: [I]n international law. namely. pp. 2000. 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. 10. 2000. Public International Law. 141-142) . patent rights. No. It will not require the concurrence of the Senate. The documents contained therein are deemed adopted without need for ratification. No. No. trademark and copyright protection. (Tanada v. Executive Secretary Ronaldo Zamora. Eastern Sea Trading (3 SCRA 351. Angara. G. Executive Secretary Ronaldo Zamora. 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. conditional and unconditional. There are generally two types of most-favored-nation clause. En Banc [Buena]) 401.R. Discuss the binding effect of treaties and executive agreements in international law. we have recognized the binding effect of executive agreements even without the concurrence of the Senate or Congress. En Banc [Buena]) 403. 10. 138570. (Salonga & Yap. 138570. According to the clause in its unconditional form. International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations. Oct. 272 SCRA 18. En Banc [Buena]) 402. What is the “most-favored-nation” clause? What is its purpose? Answer: 1. 1997 [Panganiban]) 404. In Commissioner of Customs v. The most-favored-nation clause may be defined. The clause has been commonly included in treaties of commercial nature. G. (BAYAN [Bagong Alyansang Makabayan] v. Oct. 1992. Executive Secretary Ronaldo Zamora.” (BAYAN [Bagong Alyansang Makabayan] v. postal and navigation arrangements and the settlement of claims. What is a "protocol de cloture"? Will it require concurrence by the Senate? Held: A final act. 356-357 [1961]). Oct. sometimes called protocol de cloture. 5th Edition. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations. 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. in general. 2000. The validity of these has never been seriously questioned by our courts.R.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. May 2. 10.

Xxx X x x The entitlement of the 10% rate by U. This would mean that private respondent (S.C. through which the formal acceptance of the treaty is proclaimed. Johnson and Son. 309 SCRA 87. Johnson and Son. What is the essence of the principle behind the "most-favored-nation" clause as applied to tax treaties? Held: The essence of the principle is to allow the taxpayer in one state to avail of more liberal provisions granted in another tax treaty to which the country of residence of such taxpayer is also a party provided that the subject matter of taxation x x x is the same as that in the tax treaty under which the taxpayer is liable.. Johnson and Son. 1999.C..S. which is the counterpart provision with respect to relief for double taxation. undertaken by the head of state or of the government. 309 SCRA 87. 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. (b) it is otherwise established that the negotiating States agreed that ratification should be required. 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 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. Inc. June 25. 107-108. 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. 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. or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its .C. 406. What is ratification? Discuss its function in the treaty-making process. S. A State may provide in its domestic legislation the process of ratification of a treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such ratification. Article 23 of the RP-US Tax Treaty. Held: Ratification is generally held to be an executive act. On the other hand. Inc. Johnson and Son. June 25.2. Inc. 3rd Div. as the case may be. does not provide for similar crediting of 20% of the gross amount of royalties paid. It held: Given the purpose underlying tax treaties and the rationale for the most favored nation clause. 1999.C. [Gonzaga-Reyes]) 405. 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. (c) the representative of the State has signed the treaty subject to ratification. Inc.. 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. The RP-US and the RP-West Germany Tax Treaties do not contain similar provisions on tax crediting. a non-resident foreign corporation based in the USA.) must prove that the RP-US Tax Treaty grants similar tax reliefs to residents of the United States in respect of the taxes imposable upon royalties earned from sources within the Philippines as those allowed to their German counterparts under the RP-Germany Tax Treaty. the SC did not grant the claim filed by S. In Commissioner of Internal Revenue v.

of the nationalities which any such person possesses. Angara. Within a third State a person having more than one nationality shall be treated as if he had only one. and recognized as a treaty by the other contracting State.. or was expressed during the negotiation. troops.” (Tanada v. “A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties x x x. foreign military bases. recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected. 1992) 409. Ans. Held: What is the “doctrine of effective nationality” (genuine link doctrine)? This principle is expressed in Article 5 of the Hague Convention of 1930 on the Conflict of Nationality Laws as follows: Art.representative. 272 SCRA 18. 1989) What are the conditions before foreign military bases. 5. (Sec. 10. XVIII. (Frivaldo v. The doctrine of rebus sic stantibus does not operate automatically to render the treaty inoperative. or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and. automatically to render a treaty inoperative? Does it operate Held: According to Jessup. 25. 1997 [Panganiban]) 408. a third State shall. 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. or facilities may be allowed in the Philippines? 410. En Banc [Buena]) 407. Art. 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)? . Oct. May 2. Executive Secretary Ronaldo Zamora. 210 SCRA 256. (BAYAN [Bagong Alyansang Makabayan] v. There is a necessity for a formal act of rejection. (Santos III v.e.R. Northwest Orient Airlines. Without prejudice to the application of its law in matters of personal status and of any convention in force. things remaining as they are). June 23. 1987 Constitution) 411. troops. ratified by a majority of the votes cast by the people in a national referendum held for that purpose. COMELEC. 174 SCRA 245. G. Explain the “pacta sunt servanda” rule. June 23. the doctrine constitutes an attempt to formulate a legal principle which would justify non-performance of a treaty obligation if the conditions with relation to which the parties contracted have changed so materially and so unexpectedly as to create a situation in which the exaction of performance would be unreasonable. 2000. 138570. usually made by the head of state. 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. with a statement of the reasons why compliance with the treaty is no longer required.: After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases. Held: One of the oldest and most fundamental rules in international law is pacta sunt servanda – international agreements must be performed in good faith. when the Congress so requires. Explain the "rebus sic stantibus" rule (i. No.

. are deemed prohibitory in mandate and character." and Section 25 contains the phrase "shall not be allowed. valid and binding on the part of the Philippines. provides: "After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases. Section 25. in which case." Additionally." Section 21. Section 25. the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject treaty. requires the concurrence of the Senate to be valid and effective. Article XVIII further requires that "foreign military bases. or international agreement. the fundamental law is crystalline that the concurrence of the Senate is mandatory to comply with the strict constitutional requirements. Respondents.Held: One focal point of inquiry in this controversy is the determination of which provision of the Constitution applies. regardless of subject matter. the concurrence of the Senate is indispensable to render the treaty or international agreement valid and effective. and recognized as a treaty by the other contracting State. In particular. Article XVIII. extradition or tax treaties or those economic in nature. Article VII deals with treaties or international agreements in general. actually share some common ground. Article XVIII. In contrast. ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress. or particular designation or appellation. with regard to the exercise by the Senate of its constitutional power to concur with the VFA. Article VII. 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. Under this provision. Article XVIII is applicable considering that the VFA has for its subject the presence of foreign military troops in the Philippines. troops. in both instances. such as." Section 25. or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and. Petitioners argue that Section 25. maintain that Section 21. the fact that the President referred the VFA to the Senate under Section 21. To our mind. troops or facilities in the Philippines. and that the Senate extended its concurrence under the same provision. Article XVIII is a special provision that applies to treaties which involve the presence of foreign military bases. These constitutional provisions both embody phrases in the negative and thus. or facilities" may be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate. whether under Section 21. is immaterial. Article VII should apply inasmuch as the VFA is not a basing arrangement but an agreement which involves merely the temporary visits of United States personnel engaged in joint military exercises. the 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. For in either case. foreign military bases. when the Congress so requires. coverage. and recognized as such by the other contracting State. The 1987 Philippine contains two provisions requiring the concurrence of the Senate on treaties or international agreements. ratified by a majority of the votes cast by the people in a national referendum held for that purpose. on the contrary. Article VII x x x reads: "No treaty or international agreement shall be valid and effective unless concurred in by at least twothirds of all the Members of the Senate. It is our considered view that both constitutional provisions. Article VII or Section 25. far from contradicting each other. All treaties or international agreements entered into by the Philippines. troops. Section 21 opens with the clause "No treaty x x x. Section 21. but not limited to.

290 SCRA 717. These military warships are actually used as substitutes for a . troops. Section 25. 2000. are involved in the VFA. On this score. 52 Phil. Barbers. importation and exportation of equipment. should apply to the VFA. we do not subscribe to the argument that Section 25. In like manner. which specifically deals with treaties involving foreign military bases. No. Article XVIII. the provision contemplates three different situations . VII of the 1987 Constitution. as manifested during the deliberations of the 1986 Constitutional Commission. 481-492. in its most comprehensive sense. Collector of Customs. but merely foreign troops and facilities. 342 SCRA 449. we find nothing in Section 25. this prohibition is not limited to the entry of troops and facilities without any foreign bases being established. 723 [1998]). the particular enactment must be operative. would include what is embraced in the former.a military treaty the subject of which could be either (a) foreign bases (b) foreign troops. Sec. Art." Stated differently. a perusal of said constitutional provision revels that the proscription covers "foreign military bases.Ubi lex non distinguit nec nos distinguire debemos. troops. be upheld? Held: It is specious to argue that Section 25. however. 10. the VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines. 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. Notably. 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. materials and supplies. It provides for the guidelines to govern such visits of military personnel. The clause does not refer to foreign military bases. the provisions of Section 21. Article XVIII. 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. 950). (BAYAN [Bagong Alyansang Makabayan] v. Article XVIII is not controlling since no foreign military bases.R. and the general enactment must be taken to affect only such cases within its general language which are not within the provision of the particular enactment (Manila Railroad Co. 138570 and Companion Cases. 21. v. or facilities" collectively but treats them as separate and independent subjects. is consistent with this interpretation x x x. such that. 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. Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines. G. Executive Secretary Ronaldo Zamora. It is a rudiment in legal hermeneutics that when no distinction is made by law. troops. therefore. Thus. the intention of the framers of the Charter. It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one. To this end. or (c) foreign facilities . 25. XVIII. and not Sec. Certainly. the Court should not distinguish . Moreover. movement of vessels and aircraft. or facilities. En Banc [Buena]) 412. where there is in the same statute a particular enactment and also a general one which.On the whole. Lex specialis derogat generali. or facilities. should apply in the instant case. and further defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction. To a certain extent and in a limited sense. Oct. the Constitution makes no distinction between "transient" and "permanent". Undoubtedly. The use of comma and disjunctive word "or" clearly signifies disassociation and independence of one thing from the others included in the enumeration (Castillo-Co v. Art. 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.any of the three standing alone places it under the coverage of Section 25.

xxx This Court is of the firm view that the phrase "recognized as a treaty" means that the other contracting party accepts or acknowledges the agreement as a treaty (Ballantine's Legal Dictionary. Article VII. (b) the treaty must be duly concurred in by the Senate and. the concurrence of the Senate contemplated under Section 25. 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. which in more specific terms. On the other hand. Indeed. Article XVIII means that at least two-thirds of all the members of the Senate favorably vote to concur with the treaty . 1995). XVIII of the 1987 Constitution complied with when the Senate gave its concurrence to the VFA? Held: Section 25. Besides. whether under the general requirement in Section 21. Oct. Article XVIII are present. There is no dispute as to the presence of the first two requisites in the case of the VFA. or facilities in the country. 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. that the treaty . Article XVIII. in the instant case . Article VII particularly requires that a treaty or international agreement. vessels are mobile as compared to a land-based military headquarters. Article VII.the VFA in the instant case. No. Article XVIII simply provides that the treaty be "duly concurred in by the Senate. In a more particular language. Article XVIII must be construed in relation to the provisions of Section 21. The concurrence handed by the Senate through Resolution No. Article VII. or international agreement. to be valid and effective. As to the matter of voting. the "concurrence requirement" under Section 25. Art. must be concurred in by at least two-thirds of all the members of the Senate. (BAYAN [Bagong Alyansang Makabayan] v. ratified by a majority of the votes cast by the people in a national referendum. 25. . G. 481-492. 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. Executive Secretary Ronaldo Zamora." it is very true however that said provision must be related and viewed in light of the clear mandate embodied in Section 21.R. among other things. 2000. To require the other contracting state." Applying the foregoing constitutional provisions. 138570 and Companion Cases. Were the requirements of Sec. 342 SCRA 449.be "duly concurred in by the Senate. xxx Having resolved that the first two requisites prescribed in Section 25. troops. En Banc [Buena]) 413.the VFA. is to accord strict meaning to the phrase. and (c) recognized as a treaty by the other contracting state. unless the following conditions are sufficiently met. Section 25. The United States of America in this case. to submit the VFA to the United States Senate for concurrence pursuant to its Constitution. 18 is in accordance with the provisions of the Constitution. or the specific mandate mentioned in Section 25. As noted. Article XVIII disallows foreign military bases. when so required by Congress. Article VII. Article XVIII must not be treated in isolation to Section 21. While it is true that Section 25. Section 25.land-home base not only of military aircraft but also of military personnel and facilities. 10. viz: (a) it must be under a treaty. Article XVIII requires. Section 21. be made by a two-thirds vote of all the members of the Senate. requires that the concurrence of a treaty.

M. Hubbard. it now becomes obligatory and incumbent on our part.. by a vote of eleven to three. with the concomitant duty to uphold the obligations and responsibilities embodied thereunder.R. Article II of the Constitution. which is equivalent to final acceptance. En Banc [Buena]) 414. International Law. xxx With the ratification of the VFA. Al. 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. v. (BAYAN [Bagong Alyansang Makabayan] v. by the President. al. 138570 and Companion Cases. 1998 Ed. The first of these is the Mutual Defense Treaty (MDT. 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. 224 US 263 [1942]. equality. v. Zamora.. To be sure. an executive agreement is as binding as a treaty (Altman Co. 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. Thus. 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. has stated that the United States government has fully committed to living up to the terms of the VFA. United States. the “Balikatan” is the largest such training exercise directly supporting the MDT’s objectives. et. xxx The records reveal that the United States Government. movement of vessels and aircraft. the said agreement is to be taken equally as a treaty. in which case the significance thus attached to them prevails. For as long as the United States of America accepts or acknowledges the VFA as a treaty. under the principles of international law. v. The MDT has been described as the “core” of the defense relationship between the Philippines and its traditional ally. this Court upheld the validity of the VFA (BAYAN. there is indeed marked compliance with the mandate of the Constitution. it is inconsequential whether the United States treats the VFA only as an executive agreement because. It is this treaty to which the VFA adverts and the obligations thereunder which it seeks to reaffirm. and binds itself further to comply with its obligations under the treaty. et. 31 SCRA 413 [1970]) Moreover. for brevity). 497). to be bound by the terms of the agreement. Land Tenure Association. justice. through Ambassador Thomas C. Its language should be understood in the sense they have in common use (J. Oct. under international law. Its aim is to enhance the strategic and technological capabilities of our armed forces through joint training with its American counterparts. 342 SCRA 449 [2000]). importation and exportation. cited in Coquia and Defensor-Santiago. criminal jurisdiction. Tuason & Co.” It contains provisions relative to entry and departure of American personnel. as well as the . 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. until it was replaced by the Visiting Forces Agreement. driving and vehicle registration. that is. It should be recalled that on October 10. Executive Secretary Ronaldo Zamora. G. No. the United States. freedom. 2000. Inc. Worth stressing too. as long as the VFA possesses the elements of an agreement under international law. no less than Section 2.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. 2000. is that the ratification. 481-492. 342 SCRA 449. and with the exchange of notes between the Philippines and the United States of America. P. cooperation and amity with all nations. 10. claims.

Under these auspices. and the like. under the principles of international law.” the exact meaning of which was left undefined. however. which contains provisos governing interpretations of international agreements. which is presumed to verbalize the parties’ intentions. The expression is ambiguous. As conceived.” falls under the umbrella of sanctioned or allowable activities in the context of the agreement. In this manner. justice. The sole encumbrance placed on its definition is couched in the negative. Honorable Executive Secretary. With the ratification of the Visiting Forces Agreement (VFA). Thus. unfortunately. equality. No. on an impermanent basis. visiting US forces may sojourn in Philippine territory for purposes other than military. G. 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. state x x x. it was deliberately made that way to give both parties a certain leeway in negotiation. no less than Section 2. and in particular. We are not completely unaided. in that United States personnel must “abstain from any activity inconsistent with the spirit of this agreement. Lim and Paulino R. has it now become obligatory and incumbent on our part to be bound by its terms even if it is asserted that said agreement contravenes the Constitution? Held: With the ratification of the VFA. and with the exchange of notes between the Philippines and the United States of America. After studied reflection. Not much help can be had therefrom. it appeared farfetched that the ambiguity surrounding the meaning of the word “activities” arose from accident. it now becomes obligatory and incumbent on our part. civic action projects such as the building of school houses. It is only logical to assume that “Balikatan 02-1. are indeed authorized. which it refers to as the context of the treaty. from any political activity. disaster relief operations. in other words. (Arthur D. since the terminology employed is itself the source of the problem. the joint exercises may include training on new techniques of patrol and surveillance to protect the nation’s marine resources. The VFA permits United States personnel to engage.duration of the agreement and its termination. The Vienna Convention on the Law of Treaties. medical and humanitarian missions. 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. X x x The Terms of Reference rightly fall within the context of the VFA. It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text. which is equivalent to final acceptance. . the VFA gives legitimacy to the current Balikatan exercises. cooperation and amity with all nations. 2002. sea search-and-destroy operations to assist vessels in distress. In our view. 151445. permitting a wide scope of undertakings subject only to the approval of the Philippine government. it is necessary to refer to the VFA itself. 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. in “activities. To resolve this. April 11. Ersando v. Article II of the Constitution. as well as other elements may be taken into account alongside the aforesaid context. The first question that should be addressed is whether “Balikatan 02-1” is covered by the Visiting Forces Agreement. En Banc [De Leon]) 415. The Convention likewise dictates what may be used as aids to deduce the meaning of terms. assisting and training exercise. It is the VFA which gives continued relevance to the MDT despite the passage of years. freedom. are fair game.” a “mutual anti-terrorism advising. to be bound by the terms of the agreement.R.” All other activities.

the Philippines is nonetheless responsible for violations committed by any branch or subdivision of its government or any official thereof. namely: . p. (BAYAN [Bagong Alyansang Makabayan] v. a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic channels. Hans Smit. 138570. As an integral part of the community of nations. to espouse its claims against the Holy See. Pugh. p. 919 [1964]). 492493.R. p. through the Foreign Office. 1994. respect for the rules of international law” (The Mavrommatis Palestine Concessions. 342 SCRA 449. (Gerhard von Glahn. Once the Philippine government decides to espouse the claim. Dec. Oscar Schachter. 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. supra. 2nd Ed.” 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. Its first task is to persuade the Philippine government to take up with the Holy See the validity of its claim.: As a matter of legal theory. Private respondent can ask the Philippine government. World Court Reports 293. Constitution and laws will carry out our international obligation (Louis Henkin. Selected Readings on Protection by Law of Private Foreign Investments 905. G. 1 Hudson. Under both Public International Law and Transnational Law. Executive Secretary Ronaldo Zamora. Richard C. we cannot readily plead the Constitution as a convenient excuse for nonBeyond this. Cases and Materials. En Banc [Quiason]) 417. 136).. 302 [1924]). Of course. No. the Philippines agrees to be bound by generally accepted rules for the conduct of its international relations. the latter ceases to be a private cause. a State is in reality asserting its own rights . institution. What are the conditions before the rights of belligerency may be accorded the rebels? Ans. International Law. Jr. the Foreign Office shall first make a determination of the impact of its espousal on the relations between the Philippine government and the Holy See (Young.its right to ensure. 538-539. (Holy See. 1. supra. Rosario. the rebels have to fulfill certain conditions before the rights of belligerency are accorded them.. 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. Oct. En Banc [Buena]) 416. International Law. duties and responsibilities under international law. 10. 2000. The v. Hence. 238 SCRA 524. in the person of its subjects. supported by the jurisprudence of international tribunals (Harris. or individual member of its government. According to the Permanent Court of International Justice. 634 cited in Coquia. While the international obligation devolves upon the state and not upon any particular branch. 512). compliance with our obligations. and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty. American Casebook Series. p. we are responsible to assure that our government.As a member of the family of nations. 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. Remedies of Private Claimants Against Foreign States. 487) Equally important is Article 26 of the Convention which provides that “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

1) An organized civil government that has control and direction over the armed struggle launched by the rebels. 193 SCRA 282 [1991]). 323 SCRA 692. 3) Seriousness of the struggle. 2) The legitimate government. 2000. 28. which must be so widespread thereby leaving no doubt as to the outcome. it has been ruled that the mere invocation of the immunity clause does not ipso facto result in the dropping of the charges (Chavez v. v. 3) From the point of view of third States. (Liang v. once it recognizes the rebels as belligerents.: 1) Before recognition as such. 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. Discuss the legal consequences that follow recognition of belligerency. The needed inquiry in what capacity petitioner was acting at the time of the alleged utterances requires for its resolution evidentiary basis that has yet to be presented at the proper time (See United States v. Discuss the basis of the argument that a determination by the DFA that a person is entitled to diplomatic immunity is a political question binding on the courts. Held: Petitioner’s argument that a determination by the Department of Foreign Affairs that he is entitled to diplomatic immunity is a political question binding on the courts. (Salonga & Yap. in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure and detention of property. The DFA’s determination that a certain person is covered by immunity is only preliminary which has no binding effect in courts. People. Sandiganbayan. Hence. Once recognition is given. 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. 4) On the side of the rebels. 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. 5th Ed. the legitimate government may no longer be held responsible for their acts. 4) Willingness on the part of the rebels to observe the rules and customs of war. it is the legitimate government that is responsible for the acts of the rebels affecting foreign nationals and their properties. 418. the latter’s right to due process was violated. Jan. et al. Guinto. 182 SCRA 644 [1990]). the Solicitor General in this case. as to embarrass the executive arm of the government in conducting foreign relations. and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar. (48 SCRA 242 [1972]). is bound to observe the laws and customs of war in conducting the hostilities. p. responsibility is shifted to the rebel government. 2) Occupation of a substantial portion of the national territory. In receiving ex parte the DFA’s advice and in motu proprio dismissing the two criminal cases without notice to the prosecution. It should be noted that due process is a right of the accused as much as it is of the prosecution. Public International Law. 33) 419. Aquino. is anchored on the ruling enunciated in the case of WHO.” . or other officer acting under his direction. 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. [Ynares-Santiago]) 420. 1st Div. Ans. At any rate. et al. [1992]. 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. 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.

Jr. 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. Calleja. Finally. and who are subject to a particular personal status. and are under its control to exercise. They are organized mainly as a means for conducting general international business in which the member states have an interest. DFA v. It bears to stress that all of these cases pertain to the diplomatic immunity enjoyed by international organizations. United Nations. on the basis of an international treaty constituting a particular international community. in a continuous way.This ruling was reiterated in the subsequent cases of International Catholic Migration Commission v. The term “international organizations” – “is generally used to describe an organization set up by agreement between two or more states. The Holy See v. In Lasco v. The Court again upheld the doctrine of diplomatic immunity invoked by the Fund. as represented by the Papal Nuncio. Calleja (190 SCRA 130 [1990]). an official of the WHO. such organizations are endowed with some degree of international legal personality such that they are capable of exercising specific rights. As international organizations. Verstuyft was certified to be entitled to diplomatic immunity pursuant to the Host Agreement executed between the Philippines and the WHO. NLRC (262 SCRA 38 [1996]). Les Functionnaires Internationaux [Paris: 1931]. Aquino involved the search and seizure of personal effects of petitioner Leonce Verstuyft. Chapter I) . ICMC and IRRI were declared to possess diplomatic immunity. Rosario. United Nations (241 SCRA 681 [1995]). The case of WHO v. NLRC involved an illegal dismissal case filed against the Asian Development Bank.” (John Kerry King. supra note 2) International public officials have been defined as: “x x x persons who. with all the more reason should immunity be recognized as regards the sovereign itself. Jr. involved an action for annulment of sale of land against the Holy See. Under contemporary international law. duties and powers. functions in the interest of this particular international community. which is to shield the affairs of international organizations from political pressure or control by the host country and to ensure the unhampered performance of their functions. the diplomatic immunity of the Asian Development Bank was recognized by the Court. which in that case is the Holy See. Rosario. The Court upheld the petitioner’s defense of sovereign immunity. Lasco v. or by an organ of it. ICMC v. Calleja concerned a petition for certification election filed against ICMC and IRRI. are appointed by this international community. (238 SCRA 524 [1994]). Pursuant to its Charter and the Headquarters Agreement. the United Nations Revolving Fund for Natural Resources Exploration was sued before the NLRC for illegal dismissal. and DFA v. 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. It was held that they are not subject to local jurisdictions. which the envoy holds on behalf of the sending state for the purposes of the mission.” (ICMC v. Holy See v. The Privileges and Immunities of the Personnel of International Organizations xiii [1949]. It was ruled that the exercise of jurisdiction by the Department of Labor over the case would defeat the very purpose of immunity. citing: Suzanne Basdevant.

which reduced them in three basic propositions. treaty obligation for the state in question to grant concessions is lacking. The first is by simple conventional stipulation. the immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State. the effective sanctions which secure respect for diplomatic immunity are the principle of reciprocity and the danger of retaliation by the aggrieved State. sea transport. certain privileges and immunities to better assure the successful functioning of the organization and its personnel. Mar. railways. [Motion for Reconsideration]) 422. [Motion for Reconsideration]) 421. Firstly. at 17).. G. Held: The generally accepted principles which are now regarded as the foundation of international immunities are contained in the ILO Memorandum. Contemporary Development in International Immunities xxxvii [1961]) (Concurring Opinion. 125865. and (3) that the international organization should. finance. but with the elements of functional independence necessary to free international institutions from national control and to enable them to discharge their responsibilities impartially on behalf of all their members (Id. 1st Div. 2001. It is not concerned with the status.. canals. et al. 2001. Held: There are three major differences between diplomatic and international immunities.. Calleja. Such was the case with the Central Commission of the Rhine at Strasbourg and the International Institute . 1st Div. rivers. citing Articles 57 and 63 of the United Nations Charter). The thinking underlying these propositions is essentially institutional in character.“Specialized agencies” are international organizations having functions in particular fields. dignity or privileges of individuals. health and refugees (ICMC v. [Motion for Reconsideration]) 423. The second is by internal legislation whereby the government of a state. 125865. such as posts. In this situation. Mar. recognizes the international character of the organization and grants. No. What are the differences between Diplomatic and International Immunities? Discuss.R. trade. 26. 26. atomic energy. nationals enjoy only such privileges and immunities as may be granted by the receiving State. 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.. civil aviation. Mar. international immunities enjoy no similar protection (C. 125865. People. 2001. in Jeffrey Liang [Huefeng] v. as a collectivity of States Members. 26. G.R. G. International immunities may be specially important in relation to the State of which the official is a national. in Jeffrey Liang [Huefeng] v. Puno J. (2) that no country should derive any financial advantage by levying fiscal charges on common international funds. (Concurring Opinion. telecommunications. Wilfred Jenks. Secondly. in Jeffrey Liang [Huefeng] v. as was the case in the Hague Conventions of 1899 and 1907. Discuss the immunity of International Officials. No. education and culture. 1st Div. upon whose territory the international organization is to carry out its functions. be accorded the facilities for the conduct of its official business customarily extended to each other by its individual member States.R. No. meteorology. 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. Thirdly. apart from inviolability and immunity from jurisdiction in respect of official acts performed in the exercise of their functions. Puno J. by unilateral measures. 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. People. 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. (Concurring Opinion. People. Puno J.

at 255). and the United Nations (J. Vienna Convention on Diplomatic Relations). The juridical basis of the diplomat’s position is firmly established in customary international law. He cannot be.K. at 81).K. Moreover. they are responsible to the organization and their official acts are imputed to it. 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 connection consists in the granting. the legal relationship between an ambassador and the state to which he is accredited is entirely different from the relationship between the international official and those states upon whose territory he might carry out its functions (See Id. The privileges and immunities of diplomats and those of international officials rest upon different legal foundations. The functions of the diplomat and those of the international official are quite different. at 25-26). King. The international official does not carry out his functions in the interest of any state. 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. An international organization carries out functions in the interest of every member state equally. The third is a combination of the first two. supra note 12. The juridical basis of their special position is found in conventional law (J. This connection is purely historical. the relationship between an international organization and a memberstate does not admit of the principle of reciprocity (Id. The staff personnel of an international organization – the international officials – assume a different position as regards their special status. but in serving the organization he serves. They are appointed or elected to their position by the organization itself. The Asian Development Bank and its Personnel fall under this third category. Such an obligation can only result from specific treaty provisions (Id. It is upon this principle of sovereign equality that international organizations are built. supra note 12. at 27). Whereas those immunities awarded to diplomatic agents are a right of the sending state based on 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. However. for it is contradictory to the basic principle of equality of states. Customary international law places no obligation on a state to recognize a special status of an international official or to grant him jurisdictional immunities. or by a competent organ of it. This is the case with the League of Nations. 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. Those of the diplomat are functions in the national interest. those granted to international officials are based on treaty or conventional law. the Permanent Court of Justice. 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. by contractual provisions. each state equally. 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. and . of the relatively well-established body of diplomatic privileges and immunities to international functionaries. but the status is described in broad and general terms. one finds a conventional obligation to recognize a certain status of an international organization and its personnel. King. In this third method. at xiii). The task of the ambassador is to represent his state. indirectly. There is a connection between diplomatic privileges and immunities and those extended to international officials.of Agriculture at Rome. since there is no established basis of usage or custom in the case of the international official. legally.

The functions of the international official are carried out in the international interest. But the interruption of the activities of the international official does not. Similar provisions are contained in the Special Agencies Convention as well . at 254-257). There is a difference of degree as well as of kind. Thus. No. Mar. G. supra note 12. Puno J. usually. King.its specific interest. 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 Convention of the League which granted “diplomatic immunities and privileges. He does not usually “represent” the organization in the true sense of that term. 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. and it is said that states have not sought to restrict that immunity of the United Nations by interpretation or amendment. The current tendency is to reduce privileges and immunities of personnel of international organizations to a minimum. He does not represent a state or the interest of any specific state. but they are rarely political or functions of representation. 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. 2001. 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. 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. and the organization in the case of the international official (Id. ). such as those of the diplomat. 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. except in cases arising out of or in connection with the exercise of its powers to borrow money. People. On the other hand. 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. 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. at 103). 125865. at 253-268).” Today. 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. at the capital of another state. While the current direction of the law seems to be to narrow the prerogatives of the personnel of international organizations. The interruption of the activities of a diplomatic agent is likely to produce serious harm to the purposes for which his immunities were granted. 26. the reverse is true with respect to the prerogatives of the organizations themselves. to guarantee obligations. or to buy and sell or underwrite the sale of securities. the state in the case of the diplomat. the age of the United Nations finds the scope of protection narrowed. Finally. although they may be judicial or executive. (Concurring Opinion.. cause serious dislocation of the functions of an international secretariat (id. states have been more generous in granting privileges and immunities to organizations than they have to the personnel of these organizations (J. considered as legal entities. 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. in Jeffrey Liang [Huefeng] v.R. His functions normally are administrative. Historically. [Motion for Reconsideration]) 424. 1st Div.K. The phrase “immunity from every form of legal process” as used in the UN General Convention has been interpreted to mean absolute immunity from a state’s jurisdiction to adjudicate or enforce its law by legal process.

it can be easily deduced that international organizations enjoy absolute immunity similar to the diplomatic prerogatives granted to diplomatic envoys. Puno J. (Concurring Opinion. and without waiver the local courts cannot hold him liable for them. at 259. 125865. but are imputed to the organization. Even in the United States this seems to be the prevailing rule x x x. in particular. in Jeffrey Liang [Huefeng] v. in Jeffrey Liang [Huefeng] v. It is important to note that the submission of international officials to local jurisdiction for private acts is not completely accepted in doctrine and theory. as a juristic person. The acceptance of the principle is sufficiently widespread to be regarded as declaratory of international law (J. in the wider sense of the term. aside from the aforementioned treatises. There can be no dispute that international officials are entitled to immunity only with respect to acts performed in their official capacity. 125865.as in the ADB Charter and Headquarters Agreement. supra note 12. In strict law. not the individual. 26. international officials are governed by a different rule. is immunity from local jurisdiction. 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. It is the organization itself. G. Clearly. 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.. From this. Mar. [Motion for Reconsideration]) 425. 26. 2001. Those acts are not his. has argued for complete jurisdictional immunity. which should waive its own immunity and appear in court. as has Hammarskjold. Jenks. 2001. it would seem that even the organization itself could have no right to waive an official’s immunity for his official acts. 1st Div.. 1st Div. It is clear therefore that these organizations were intended to have similar privileges and immunities (1 Restatement of the Law Third 498-501). at 258-259) (Concurring Opinion. international officials were granted diplomatic privileges and immunities and were thus considered immune for both private and official acts. the current status of the law does not maintain that states grant jurisdictional immunity to international officials for acts of their private lives (But see id. Section 45 [a] of the ADB Headquarters Agreement accords the same immunity to the officers and staff of the bank. In practice.R. Mar. Provisions for immunity from jurisdiction for official acts appear.K. at 186). except insofar as he appears in the name of the organization. On the other hand. [Motion for Reconsideration]) . in the discharge of his international functions. G.R. unlike international organizations which enjoy absolute immunity. Thus. What is the status of the international official with respect to his private acts? Held: Section 18 [a] of the General Convention has been interpreted to mean that officials of the specified categories are denied immunity from local jurisdiction for acts of their private life and empowers local courts to assume jurisdiction in such cases without the necessity of waiver (Id. his act al all. 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. It has earlier been mentioned that historically. 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. The Convention on Specialized Agencies carries exactly the same provision. This much is explicit from the charter and Headquarters Agreement of the ADB which contain substantially similar provisions to that of the General convention. the most important immunity to an international official. People. King. No. No. in the constitution of most modern international organizations. This permits local authorities to assume jurisdiction over an individual for an act which is not.). Puno J. People. These organizations were accorded privileges and immunities in their charters by language similar to that applicable to the United Nations.

Prior to the regime of the United Nations. but if the international organization disputes the court’s finding. under the provisions of the General Convention of the United Nations. it may appeal to an international tribunal by procedures outlined in these instruments. the state itself tends to assume this competence. 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. the determination of this question rested with the organization and its decision was final. but it may be subjected to review in the international level if questioned by the United Nations (Id.R. 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.426. the determination of the nature of the act is made at the national level (Id. at 189). supra note 14. 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. Jenks opines that it is possible that none of these three solutions would be applicable in all cases. if a local court assumes jurisdiction over an act without the necessity of waiver from the organization. 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. 125865. G. However. these various possibilities may afford the elements of a solution to the problem (Jenks. it may invoke proceedings for settlement of disputes between the organization and the member states as provided in Section 30 of the General Convention. (Concurring Opinion. 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.. the current tendency to narrow the scope of privileges ad immunities of international officials and representatives is most apparent. Jenks proposes three ways of avoiding difficulty in the matter. 2001. [Motion for Reconsideration]) . It means that. Puno J. at 260-261). It appears that the inclination is to place the competence to determine the nature of an act as private or official in the courts of the state concerned. the decision as to whether a given act is official or private is made by the national courts in the first instance. the state assumes this competence in the first instance. by an agreed mode of settlement or by advisory opinion of the International Court of Justice (Restatement of the Law Third 512). If the organization is dissatisfied with the decision. 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. Whether an act was performed in the individual’s official capacity is a question for the court in which a proceeding is brought. he surmises that taken in combination. 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 Swiss Arrangement. or the Special Convention for Specialized Agencies. at 117-118). 26. the dispute between that organization and the state of the forum is to be resolved by negotiation. By the new formula. and other current dominant instruments. Who is competent to determine whether a given act of international officials and representatives is private or official? Held: In connection with this question. 1st Div. the determination of the official or private character of a particular act may pass from international to national. such a claim being regarded as equivalent to a governmental claim that a particular act is an act of State. Mar. 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. No. Thus. xxx Under the Third Restatement of the Law. Thus. in Jeffrey Liang [Huefeng] v. People. If the United Nations questions the decision of the Court. The third would be to have recourse to the procedure of international arbitration.

: Even if Iraq’s hidden arsenal is discovered – or actually used – and the United States is justified in its suspicions. 42. The international official’s immunity for official acts may be likened to a consular official’s immunity from arrest. Since a consular officer is not immune from all legal processes. 2003 issue of the Philippines Daily Inquirer) 430. State the occasions when the use of force may be allowed under the UN Charter.: There are only two occasions when the use of force is allowed under the UN Charter.R. in an article entitled “A New World Order” written in his column “Separate Opinion” published in the March 30. however. Held: One final point.427. in an article entitled “A New World Order” written in his column “Separate Opinion” published in the March 30. 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. G. shall have taken the necessary measures to maintain international peace and security. 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. 2003 issue of the Philippines Daily Inquirer) 429. Any subsequent discovery of the prohibited biological and chemical weapons will not retroactively legalize that invasion.: 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. that there must first be an “armed attack” before a state can exercise its inherent right of self-defense. Mar. (Concurring Opinion. 51 says. People. It is like searching a person without warrant and curing the irregularity with the discovery of prohibited drugs in his possession. The first is when it is authorized in pursuance of the enforcement action that may be decreed by the Security Council under Art. The issue has not been authoritatively determined. The American invasion was made without permission from the Security Council as required by the UN Charter. Cruz. thus becoming the aggressor. There is no evidence of such a threat. 125865. that circumstance will not validate the procedure taken against Iraq. (Justice Isagani A. null and void ab initio. 51. in Jeffrey Liang [Huefeng] v.. Cruz. Ans. The cowboy from Texas says that outdrawing the foe who is about to shoot is an act of self-defense. legally speaking. 2001. The process cannot be reversed. The warrant must first be issued before the search and seizure can be made. 1st Div. Art. which was. detention. Discuss the extent of the international official’s immunity for official acts. 26. and only until the Security Council. In the United States. in the absence of special agreement. the US Department of State generally has left it to the courts to determine whether a particular act was within a consular officer’s official duties (1 Restatement of the Law Third 475-477). and criminal or civil process which is not absolute but applies only to acts or omissions in the performance of his official functions. No. [Motion for Reconsideration]) 428. but apparently the burden is on the consular official to prove his status as well as his exemption in the circumstances. Puno J. Iraq is now not only exercising its inherent right of self-defense as recognized by the UN Charter. 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. to which the aggression should be reported. (Justice Isagani . not Iraq. It was the United States that made the “armed attack” first. (Justice Isagani A. The second is when it is employed in the exercise of the inherent right of self-defense under conditions prescribed in Art. but Bush is probably invoking the modern view that a state does not have to wait until the potential enemy fires first.

in an article entitled “A New World Order” written in his column “Separate Opinion” published in the March 30. Cruz.A. 2003 issue of the Philippines Daily Inquirer) .

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