200.

What are some of the recognized restrictions to the right of the people to information
on matters of public concern?
Held:
1)

National security matters and intelligence information.

This jurisdiction
recognizes the common law holding that there is a governmental privilege against public
disclosure with respect to state secrets regarding military, diplomatic and other national
security matters.
Likewise, information on inter-government exchanges prior to the
conclusion of treaties and executive agreements may be subject to reasonable safeguards
for the sake of national interest;
2)
Trade or industrial secrets (pursuant to the Intellectual Property Code [R.A. No.
8293, approved on June 6, 1997] and other related laws) and banking transactions (pursuant
to the Secrecy of Bank Deposits Act [R.A. No. 1405, as amended]);
3)
Criminal matters, such as those relating to the apprehension, the prosecution and
the detention of criminals, which courts may not inquire into prior to such arrest, detention
and prosecution;
4)
Other confidential information. The Ethical Standards Act (R.A. No. 6713, enacted
on February 20, 1989) further prohibits public officials and employees from using or
divulging confidential or classified information officially known to them by reason of their
office and not made available to the public. (Sec. 7[c], ibid.) Other acknowledged
limitations to information access include diplomatic correspondence, closed door Cabinet
meetings and executive sessions of either house of Congress, as well as the internal
deliberations of the Supreme Court.
(Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998 [Panganiban])
201. Is the alleged ill-gotten wealth of the Marcoses a matter of public concern subject to
this right?
Held: With such pronouncements of our government, whose authority emanates from the
people, there is no doubt that the recovery of the Marcoses' alleged ill-gotten wealth is a
matter of public concern and imbued with public interest. We may also add that ill-gotten
wealth refers to assets and properties purportedly acquired, directly or indirectly, by former
President Marcos, his immediate family, relatives and close associates through or as a result
of their improper or illegal use of government funds or properties; or their having taken
undue advantage of their public office; or their use of powers, influences or relationships,
resulting in their unjust enrichment and causing grave damage and prejudice to the Filipino
people and the Republic of the Philippines. Clearly, the assets and properties referred to
supposedly originated from the government itself. To all intents and purposes, therefore,
they belong to the people. As such, upon reconveyance they will be returned to the public
treasury, subject only to the satisfaction of positive claims of certain persons as may be
adjudged by competent courts.
Another declared overriding consideration for the
expeditious recovery of ill-gotten wealth is that it may be used for national economic
recovery.
We believe the foregoing disquisition settles the question of whether petitioner has a right to
respondents' disclosure of any agreement that may be arrived at concerning the Marcoses
purported ill-gotten wealth.
(Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998
[Panganiban])
Freedom of Association
202.

Does the right of civil servants to organize include their right to strike? Clarify.

Held:
Specifically, the right of civil servants to organize themselves was positively
recognized in Association of Court of Appeals Employees (ACAE) v. Ferrer-Calleja (203 SCRA
596, November 15, 1991). But, as in the exercise of the rights of free expression and of
assembly, there are standards for allowable limitations such as the legitimacy of the
purposes of the association, the overriding considerations of national security and the
preservation of democratic institutions (People v. Ferrer, 48 SCRA 382, December 27, 1972,
per Castro, J., where the Court, while upholding the validity of the Anti-Subversion Act which
outlawed the Communist Party of the Philippines and other "subversive" organizations,
clarified, "Whatever interest in freedom of speech and freedom of association is infringed by
the prohibition against knowing membership in the Communist Party of the Philippines, is so
indirect and so insubstantial as to be clearly and heavily outweighed by the overriding
considerations of national security and the preservation of democratic institutions in this
country." It cautioned, though, that "the need for prudence and circumspection [cannot be
overemphasized] in [the law's] enforcement, operating as it does in the sensitive area of
freedom of expression and belief.")
As regards the right to strike, the Constitution itself qualifies its exercise with the proviso "in
accordance with law." This is a clear manifestation that the state may, by law, regulate the
use of this right, or even deny certain sectors such right. Executive Order No. 180 (Issued
by former President Corazon C. Aquino on June 1, 1987) which provides guidelines for the
exercise of the right of government workers to organize, for instance, implicitly endorsed an
earlier CSC circular which "enjoins under pain of administrative sanctions, all government
officers and employees from staging strikes, demonstrations, mass leaves, walkouts and
other forms of mass action which will result in temporary stoppage or disruption of public
service" (CSC Memorandum Circular No. 6, s. 1987, dated April 21, 1987) by stating that the
Civil Service law and rules governing concerted activities and strikes in the government
service shall be observed.
It is also settled in jurisprudence that, in general, workers in the public sector do not enjoy
the right to strike. Alliance of Concerned Government Workers v. Minister of Labor and
Employment (124 SCRA 1, August 3, 1983, also per Gutierrez, Jr., J.) rationalized the
proscription thus:
"The general rule in the past and up to the present is that the 'terms and conditions of
employment in the Government, including any political subdivision or instrumentality thereof
are governed by law.' X x x. Since the terms and conditions of government employment are
fixed by law, government workers cannot use the same weapons employed by the workers
in the private sector to secure concessions from their employers. The principle behind labor
unionism in private industry is that industrial peace cannot be secured through compulsion
by law. Relations between private employers and their employees rest on an essentially
voluntary basis. Subject to the minimum requirements of wage laws and other labor and
welfare legislation, the terms and conditions of employment in the unionized private sector
are settled through the process of collective bargaining. In government employment,
however, it is the legislature and, where properly given delegated power, the administrative
heads of government which fix the terms and conditions of employment. And this is
effected through statutes or administrative circulars, rules, and regulations, not through
collective bargaining agreements." (Ibid., p. 13)
After delving into the intent of the framers of the Constitution, the Court affirmed the above
rule in Social Security System Employees Association (SSSEA) v. Court of Appeals (175 SCRA
686, July 28, 1989) and explained:
"Government employees may, therefore, through their unions or associations, either petition
the Congress for the betterment of the terms and conditions of employment which are within
the ambit of legislation or negotiate with the appropriate government agencies for the

improvement of those which are not fixed by law. If there be any unresolved grievances, the
dispute may be referred to the Public Sector Labor-Management Council for appropriate
action. But employees in the civil service may not resort to strikes, walkouts and other
temporary work stoppages, like workers in the private sector, to pressure the Government to
accede to their demands. As now provided under Sec. 4, Rule III of the Rules and
Regulations to Govern the Exercise of the Right of Government Employees to 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 non-holding of classes in several public schools during the corresponding period.
Petitioners do not dispute that the grievances for which they sought redress concerned the
alleged failure of public authorities - essentially, their "employers" - to fully and justly
implement certain laws and measures intended to benefit them materially x x x. And
probably to clothe their action with permissible character (In justifying their mass actions,
petitioners liken their activity to the pro-bases rally led by former President Corazon C.
Aquino on September 10, 1991, participated in, as well, by public school teachers who
consequently absented themselves from their classes. No administrative charges were
allegedly instituted against any of the participants.), they also raised national issues such as

the removal of the U.S. bases and the repudiation of foreign debt. In Balingasan v. Court of
Appeals (G.R. No. 124678, July 31, 1997, per Regalado, J.), however, this Court said that the
fact that the conventional term "strike" was not used by the participants to describe their
common course of action was insignificant, since the substance of the situation, and not its
appearance, was deemed controlling.
Moreover, the petitioners here x x x were not penalized for the exercise of their right to
assemble peacefully and to petition the government for a redress of grievances. Rather, the
Civil Service Commission found them guilty of conduct prejudicial to the best interest of the
service for having absented themselves without proper authority, from their schools during
regular school days, in order to participate in the mass protest, their absence ineluctably
resulting in the non-holding of classes and in the deprivation of students of education, for
which they were responsible. Had petitioners availed themselves of their free time - recess,
after classes, weekends or holidays - to dramatize their grievances and to dialogue with the
proper authorities within the bounds of law, no one - not the DECS, the CSC or even this
Court - could have held them liable for the valid exercise of their constitutionally guaranteed
rights. As it was, the temporary stoppage of classes resulting from their activity necessarily
disrupted public services, the very evil sought to be forestalled by the prohibition against
strikes by government workers. Their act by their nature was enjoined by the Civil Service
law, rules and regulations, for which they must, therefore, be made answerable. (Jacinto v.
CA, 281 SCRA 657, Nov. 14, 1997, En Banc [Panganiban])
The Non-Impairment Clause
204.

Is the constitutional prohibition against impairing contractual obligations absolute?

Held: 1. Nor is there merit in the claim that the resolution and memorandum circular
violate the contract clause of the Bill of Rights.
The executive order creating the POEA was enacted to further implement the social justice
provisions of the 1973 Constitution, which have been greatly enhanced and expanded in the
1987 Constitution by placing them under a separate Article (Article XIII). The Article on
Social Justice was aptly described as the "heart of the new Charter" by the President of the
1986 Constitutional Commission, retired Justice Cecilia Munoz Palma. Social justice is
identified with the broad scope of the police power of the state and requires the extensive
use of such power. X x x.
The constitutional prohibition against impairing contractual obligations is not absolute and is
not to be read with literal exactness. It is restricted to contracts with respect to property or
some object of value and which confer rights that may be asserted in a court of justice; it
has no application to statutes relating to public subjects within the domain of the general
legislative powers of the State and involving the public rights and public welfare of the entire
community affected by it. It does not prevent a proper exercise by the State of its police
power by enacting regulations reasonably necessary to secure the health, safety, morals,
comfort, or general welfare of the community, even though contracts may thereby be
affected, for such matters cannot be placed by contract beyond the power of the State to
regulate and control them.
Verily, the freedom to contract is not absolute; all contracts and all rights are subject to the
police power of the State and not only may regulations which affect them be established by
the State, but all such regulations must be subject to change from time to time, as the
general well-being of the community may require, or as the circumstances may change, or
as experience may demonstrate the necessity. And under the Civil Code, contracts of labor

are explicitly subject to the police power of the State because they are not ordinary
contracts but are impressed with public interest. Article 1700 thereof expressly provides:
Art. 1700. The relations between capital and labor are not merely contractual. They are so
impressed with public interest that labor contracts must yield to the common good.
Therefore, such contracts are subject to the special laws on labor unions, collective
bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and
similar subjects.
The challenged resolution and memorandum circular being valid implementations of E.O. No.
797 (Creating the POEA), which was enacted under the police power of the State, they
cannot be struck down on the ground that they violate the contract clause. To hold
otherwise is to alter long-established constitutional doctrine and to subordinate the police
power to the contract clause. (The Conference of Maritime Manning Agencies, Inc. v.
POEA, 243 SCRA 666, April 21, 1995 [Davide, Jr.])
2. Petitioners pray that the present action should be barred, because private respondents
have voluntarily executed quitclaims and releases and received their separation pay.
Petitioners claim that the present suit is a "grave derogation of the fundamental principle
that obligations arising from a valid contract have the force of law between the parties and
must be complied with in good faith."
The Court disagrees.
Jurisprudence holds that the constitutional guarantee of nonimpairment of contract is subject to the police power of the state and to reasonable
legislative regulations promoting health, morals, safety and welfare. Not all quitclaims are
per se invalid or against public policy, except (1) where there is clear proof that the waiver
was wangled from an unsuspecting or gullible person, or (2) where the terms of settlement
are unconscionable on their face. In these cases, the law will step in to annul the
questionable transactions.
Such quitclaim and release agreements are regarded as
ineffective to bar the workers from claiming the full measure of their legal rights.
In the case at bar, the private respondents agreed to the quitclaim and release in
consideration of their separation pay. Since they were dismissed allegedly for business
losses, they are entitled to separation pay under Article 283 of the Labor Code. And since
there was thus no extra consideration for the private respondents to give up their
employment, such undertakings cannot be allowed to bar the action for illegal dismissal.
(Bogo-Medellin Sugarcane Planters Association, Inc. v. NLRC, 296 SCRA 108, 124,
[Panganiban])
3. Only slightly less abstract but nonetheless hypothetical is the contention of CREBA that
the imposition of the VAT on the sales and leases of real estate by virtue of contracts
entered prior to the effectivity of the law would violate the constitutional provision that "No
law impairing the obligation of contracts shall be passed." It is enough to say that the
parties to a contract cannot, through the exercise of prophetic discernment, fetter the
exercise of the taxing power of the State. For not only are existing laws read into contracts
in order to fix obligations as between parties, but the reservation of essential attributes of
sovereign power is also read into contracts as a basic postulate of the legal order. The policy
of protecting contracts against impairment presupposes the maintenance of a government
which retains adequate authority to secure the peace and good order of society.
In truth, the Contract Clause has never been thought as a limitation on the exercise of the
State's power of taxation save only where a tax exemption has been granted for a valid
consideration. X x x. (Tolentino v. Secretary of Finance, 235 SCRA 630, 685-686,
Aug. 25, 1994, En Banc [Mendoza])

4. Since timber licenses are not contracts, the non-impairment clause x x x cannot be
invoked.
X x x, even if it is to be assumed that the same are contracts, the instant case does not
involve a law or even an executive issuance declaring the cancellation or modification of
existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked.
Nevertheless, granting further that a law has actually been passed mandating cancellations
or modifications, the same cannot still be stigmatized as a violation of the non-impairment
clause. This is because by its very nature and purpose, such a law could have only been
passed in the exercise of the police power of the state for the purpose of advancing the right
of the people to a balanced and healthful ecology, promoting their health and enhancing
their general welfare. X x x.
In short, the non-impairment clause must yield to the police power of the state.
Finally, it is difficult to imagine x x x how the non-impairment clause could apply with
respect to the prayer to enjoin the respondent Secretary from receiving, accepting,
processing, renewing or approving new timber license for, save in cases of renewal, no
contract would have as yet existed in the other instances. Moreover, with respect to
renewal, the holder is not entitled to it as a matter of right. (Oposa v. Factoran, Jr., 224
SCRA 792 [1993])
5. Anent petitioners' contention that the forcible refund of incentive benefits is an
unconstitutional impairment of a contractual obligation, suffice it to state that "[n]ot all
contracts entered into by the government will operate as a waiver of its non-suability;
distinction must be made between its sovereign and proprietary acts. The acts involved in
this case are governmental. Besides, the Court is in agreement with the Solicitor General
that the incentive pay or benefit is in the nature of a bonus which is not a demandable or
enforceable obligation. (Blaquera v. Alcala, 295 SCRA 366, 446, Sept. 11, 1998, En
Banc [Purisima])
The In-Custodial Investigation Rights of an Accused Person
205. State the procedure, guidelines and duties which the arresting, detaining, inviting, or
investigating officer or his companions must do and observe at the time of making an arrest
and again at and during the time of the custodial interrogation.
Held: Lastly, considering the heavy penalty of death and in order to ensure that the
evidence against an accused were obtained through lawful means, the Court, as guardian of
the rights of the people lays down the procedure, guidelines and duties which the arresting,
detaining, inviting, or investigating officer or his companions must do and observe at the
time of making an arrest and again at and during the time of the custodial interrogation in
accordance with the Constitution, jurisprudence and Republic Act No. 7438 (An Act Defining
Certain Rights of Person Arrested, Detained or Under Custodial Investigation as well as the
Duties of the Arresting, Detaining, and Investigating Officers and Providing Penalties for
Violations Thereof). It is high-time to educate our law-enforcement agencies who neglect
either by ignorance or indifference the so-called Miranda rights which had become
insufficient and which the Court must update in the light of new legal developments:
1)

The person arrested, detained, invited or under custodial investigation must be

informed in a language known to and understood by him of the reason for the arrest and he
must be shown the warrant of arrest, if any. Every other warnings, information or
communication must be in a language known to and understood by said person;

2)

He must be warned that he has a right to remain silent and that any statement
he makes may be used as evidence against him;
3)
He must be informed that he has the right to be assisted at all times and have
the presence of an independent and competent lawyer, preferably of his own choice;
4)
He must be informed that if he has no lawyer or cannot afford the services of a
lawyer, one will be provided for him; and that a lawyer may also be engaged by any person
in his behalf, or may be appointed by the court upon petition of the person arrested or one
acting on his behalf;
5)
That whether or not the person arrested has a lawyer, he must be informed that
no custodial investigation in any form shall be conducted except in the presence of his
counsel of after a valid waiver has been made;
6)
The person arrested must be informed that, at any time, he has the right to
communicate or confer by the most expedient means - telephone, radio, letter or messenger
- with his lawyer (either retained or appointed), any member of his immediate family, or any
medical doctor, priest or minister chosen by him or by any one from his immediate family or
by his counsel, or be visited by/confer with duly accredited national or international nongovernment organization. It shall be the responsibility of the officer to ensure that this is
accomplished;
7)
He must be informed that he has the right to waive any of said rights provided it
is made voluntarily, knowingly and intelligently and ensure that he understood the same;
8)
In addition, if the person arrested waives his right to a lawyer, he must be
informed that it must be done in writing and in the presence of counsel, otherwise, he must
be warned that the waiver is void even if he insist on his waiver and chooses to speak;
9)
That the person arrested must be informed that he may indicate in any manner
at any time or stage of the process that he does not wish to be questioned with warning that
once he makes such indication, the police may not interrogate him if the same had not yet
commenced, or the interrogation must cease if it has already begun;
10)
The person arrested must be informed that his initial waiver of his right to remain
silent, the right to counsel or any of his rights does not bar him from invoking it at any time
during the process, regardless of whether he may have answered some questions or
volunteered some statements;
11)
He must also be informed that any statement or evidence, as the case may be,
obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or
in part, shall be admissible in evidence.
(People v. Mahinay, 302 SCRA 455, Feb. 1, 1999, En Banc [Per Curiam])
206. Explain the kind of information that is required to be given by law enforcement
officers to suspect during custodial investigation.
Held: [I]t is settled that ones right to be informed of the right to remain silent and to
counsel contemplates the transmission of meaningful information rather just the ceremonial
and perfunctory recitation of an abstract constitutional principle. It is not enough for the
interrogator to merely repeat to the person under investigation the provisions of Section 12,
Article III of the 1987 Constitution; the former must also explain the effects of such provision
in practical terms e.g., what the person under investigation may or may not do and in a
language the subject fairly understands. The right to be informed carries with it a
correlative obligation on the part of the police investigator to explain, and contemplates
effective communication which results in the subjects understanding of what is conveyed.
Since it is comprehension that is sought to be attained, the degree of explanation required
will necessarily vary and depend on the education, intelligence, and other relevant personal
circumstances of the person undergoing investigation. In further ensuring the right to
counsel, it is not enough that the subject is informed of such right; he should also be asked if
he wants to avail of the same and should be told that he could ask for counsel if he so
desired or that one could be provided him at his request. If he decides not to retain a
counsel of his choice or avail of one to be provided for him and, therefore, chooses to waive

his right to counsel, such waiver, to be valid and effective, must still be made with the
assistance of counsel, who, under prevailing jurisprudence, must be a lawyer. (People v.
Canoy, 328 SCRA 385, March 17, 2000, 1st Div. [Davide, CJ])
207.

What is the meaning of competent counsel under Section 12 of the Bill of Rights?

Held: The meaning of competent counsel was explained in People v. Deniega (251 SCRA
626, 637) as follows:
x x x [T]he lawyer called to be present during such investigation should be as far as
reasonably possible, the choice of the individual undergoing questioning. If the lawyer were
one furnished in the accuseds behalf, it is important that he should be competent and
independent, i.e., that he is willing to fully safeguard the constitutional rights of the accused,
as distinguished from one who would merely be giving a routine, peremptory and
meaningless recital of the individuals rights. In People v. Basay (219 SCRA 404, 418), this
Court stressed that an accuseds right to be informed of the right to remain silent and to
counsel contemplates the transmission of meaningful information rather than just the
ceremonial and perfunctory recitation of an abstract constitutional principle.
Ideally therefore, a lawyer engaged for an individual facing custodial investigation (if the
latter could not afford one) should be engaged by the accused (himself), or by the latters
relative or person authorized by him to engage an attorney or by the court, upon proper
petition of the accused or person authorized by the accused to file such petition. Lawyers
engaged by the police, whatever testimonials are given as proof of their probity and
supposed independence, are generally suspect, as in many areas, the relationship between
lawyers and law enforcement authorities can be symbiotic.
x x x The competent or independent lawyer so engaged should be present from the
beginning to end, i.e., at all stages of the interview, counseling or advising caution
reasonably at every turn of the investigation, and stopping the interrogation once in a while
either to give advice to the accused that he may either continue, choose to remain silent or
terminate the interview.
(People v. Espiritu, 302 SCRA 533, Feb. 2, 1999, 3rd Div. [Panganiban])
208. Can a PAO lawyer be considered an independent counsel within the contemplation of
Section 12, Article III, 1987 Constitution?
Held: In People v. Oracoy, 224 SCRA 759 [1993]; People v. Bandula, 232 SCRA 566 [1994],
the SC has held that a PAO lawyer can be considered an independent counsel within the
contemplation of the Constitution considering that he is not a special counsel, public or
private prosecutor, counsel of the police, or a municipal attorney whose interest is
admittedly adverse to that of the accused-appellant. Thus, the assistance of a PAO lawyer
satisfies the constitutional requirement of a competent and independent counsel for the
accused. (People v. Bacor, 306 SCRA 522, April 30, 1999, 2 nd Div. [Mendoza])
209. Is the confession of an accused given spontaneously, freely and voluntarily to the
Mayor admissible in evidence, considering that the Mayor has operational supervision and
control over the local police and may arguably be deemed a law enforcement officer?
Held: While it is true that a municipal mayor has operational supervision and control over
the local police and may arguably be deemed a law enforcement officer for purposes of
applying Section 12(1) and (3) of Article III of the Constitution, however, appellants
confession to the mayor was not made in response to any interrogation by the latter. In fact,
the mayor did not question the appellant at all. No police authority ordered appellant to talk
to the mayor. It was appellant himself who spontaneously, freely and voluntarily sought the

mayor for a private meeting. The mayor did not know that appellant was going to confess
his guilt to him. When appellant talked with the mayor as a confidant and not as a law
enforcement officer, his uncounselled confession to him did not violate his constitutional
rights. Thus, it has been held that the constitutional procedures on custodial investigation
do not apply to a spontaneous statement, not elicited through questioning by the
authorities, but given in an ordinary manner whereby appellant orally admitted having
committed the crime.
What the Constitution bars is the compulsory disclosure of
incriminating facts or confessions. The rights under Section 12 are guaranteed to preclude
the slightest use of coercion by the State as would lead the accused to admit something
false, not to prevent him from freely and voluntarily telling the truth. (People v. Andan,
269 SCRA 95, March 3, 1997)
210. Are confessions made in response to questions by news reporters admissible in
evidence?
Answer: Yes. Confessions made in response to questions by news reporters, not by the
police or any other investigating officer, are admissible. In People v. Vizcarra, 115 SCRA
743, 752 [1982], where the accused, under custody, gave spontaneous answers to a
televised interview by several press reporters in the office of the chief of the CIS, it was held
that statements spontaneously made by a suspect to news reporters on a televised
interview are deemed voluntary and are admissible in evidence. In People v. Andan, 269
SCRA 95, March 3, 1997, it was held that appellants confessions to the news reporters
were given free from any undue influence from the police authorities. The news reporters
acted as news reporters when they interviewed appellant. They were not acting under the
direction and control of the police. They did not force appellant to grant them an interview
and reenact the commission of the crime. In fact, they asked his permission before
interviewing him. The Supreme Court further ruled that appellants verbal confessions to
the newsmen are not covered by Section 12(1) and (3) of Article III of the Constitution and,
therefore, admissible in evidence.
211. Discuss why lower courts should act with extreme caution in admitting in evidence
accuseds videotaped media confessions.
Held: Apropos the court a quos admission of accused-appellants videotaped confession,
we find such admission proper. The interview was recorded on video and it showed accusedappellant unburdening his guilt willingly, openly and publicly in the presence of newsmen.
Such confession does not form part of custodial investigation as it was not given to police
officers but to media men in an attempt to elicit sympathy and forgiveness from the public.
Besides, if he had indeed been forced into confessing, he could have easily sought succor
from the newsmen who, in all likelihood, would have been sympathetic with him. X x x
X x x However, because of the inherent danger in the use of television as a medium
for admitting ones guilt, and the recurrence of this phenomenon in several cases (People v.
Vizcarra, No. L-38859, 30 July 1982, 115 SCRA 743; others omitted), it is prudent that trial
courts are reminded that extreme caution must be taken in further admitting similar
confessions. For in all probability, the police, with the connivance of unscrupulous media
practitioners, may attempt to legitimize coerced extrajudicial confessions and place them
beyond the exclusionary rule by having an accused admit an offense on television. Such a
situation would be detrimental to the guaranteed rights of the accused and thus imperil our
criminal justice system.

We do not suggest that videotaped confessions given before media men by an accused with
the knowledge of and in the presence of police officers are impermissible. Indeed, the line
between proper and invalid police techniques and conduct is a difficult one to draw,
particularly in cases such as this where it is essential to make sharp judgments in
determining whether a confession was given under coercive physical or psychological
atmosphere.
A word of caution then to lower courts: we should never presume that all media confessions
described as voluntary have been freely given. This type of confession always remains
suspect and therefore should be thoroughly examined and scrutinized. Detection of coerced
confessions is admittedly a difficult and arduous task for the courts to make. It requires
persistence and determination in separating polluted confessions from untainted ones. We
have a sworn duty to be vigilant and protective of the rights guaranteed by the Constitution.
(People v. Endino, 353 SCRA 307, Feb. 20, 2001, 2nd Div. [Bellosillo])
212. Discuss the two kinds of involuntary or coerced confessions under Section 12, Article
III of the 1987 Constitution. Illustrate how the Court should appreciate said involuntary or
coerced confessions.
Held:
There are two kinds of involuntary or coerced confessions treated in this
constitutional provision: (1) those which are the product of third degree methods such as
torture, force, violence, threat, intimidation, which are dealt with in paragraph 2 of Section
12, and (2) those which are given without the benefit of Miranda warnings, which are the
subject of paragraph 1 of the same Section 12.
Accused-appellant claims that his confession was obtained by force and threat. Aside from
this bare assertion, he has shown no proof of the use of force and violence on him. He did
not seek medical treatment nor even a physical examination. His allegation that the fact
that he was made to sign the confession five times is proof that he refused to sign it.
Xxx
We discern no sign that the confession was involuntarily executed from the fact that it was
signed by accused-appellant five times.
Xxx
Extrajudicial confessions are presumed voluntary, and, in the absence of conclusive
evidence showing the declarants consent in executing the same has been vitiated, such
confession will be sustained.
Moreover, the confession contains details that only the perpetrator of the crime could have
given. X x x. It has been held that voluntariness of a confession may be inferred from its
being replete with details which could possibly be supplied only by the accused, reflecting
spontaneity and coherence which cannot be said of a mind on which violence and torture
have been applied. When the details narrated in an extrajudicial confession are such that
they could not have been concocted by one who did not take part in the acts narrated,
where the claim of maltreatment in the extraction of the confession is unsubstantiated and
where abundant evidence exists showing that the statement was voluntarily executed, the
confession is admissible against the declarant. There is greater reason for finding a
confession to be voluntary where it is corroborated by evidence aliunde which dovetails with
the essential facts contained in such confession.

But what renders the confession of accused-appellant inadmissible is the fact that accusedappellant was not given the Miranda warnings effectively. Under the Constitution, an
uncounseled statement, such as it is called in the United States from which Article III,
Section 12(1) was derived, is presumed to be psychologically coerced. Swept into an
unfamiliar environment and surrounded by intimidating figures typical of the atmosphere of
police interrogation, the suspect really needs the guiding hand of counsel.
Now, under the first paragraph of this provision, it is required that the suspect in custodial
interrogation must be given the following warnings: (1) he must be informed of his right to
remain silent; (2) he must be warned that anything he says can and will be used against
him; and (3) he must be told that he has a right to counsel, and that if he is indigent, a
lawyer will be appointed to represent him.
Xxx
There was thus only a perfunctory reading of the Miranda rights to accused-appellant
without any effort to find out from him whether he wanted to have counsel and, if so,
whether he had his own counsel or he wanted the police to appoint one for him. This kind of
giving of warnings, in several decisions of this Court, has been found to be merely
ceremonial and inadequate to transmit meaningful information to the suspect. Especially in
this case, care should have been scrupulously observed by the police investigator that
accused-appellant was specifically asked these questions considering that he only finished
the fourth grade of the elementary school. X x x
Moreover, Article III, Section 12(1) requires that counsel assisting suspects in custodial
interrogations be competent and independent. Here, accused-appellant was assisted by
Atty. De los Reyes, who, though presumably competent, cannot be considered an
independent counsel as contemplated by the law for the reason that he was station
commander of the WPD at the time he assisted accused-appellant. X x x.
This is error. As observed in People v. Bandula (232 SCRA 566 [1994]), the independent
counsel required by Article III, Section 12(1) cannot be special counsel, public or private
prosecutor, municipal attorney, or counsel of the police whose interest is admittedly adverse
to the accused. In this case, Atty. De los Reyes, as PC Captain and Station Commander of
the WPD, was part of the police force who could not be expected to have effectively and
scrupulously assisted accused-appellant in the investigation. To allow such a happenstance
would render illusory the protection given to the suspect during custodial investigation.
(People v. Obrero, 332 SCRA 190, 220 208, May 17, 2000, 2 nd Div. [Mendoza])
213. What are the requirements for an extra-judicial confession of an accused to be
admissible in evidence?
Held:

1. In jurisprudence, no confession can be admitted in evidence unless it is given:

1)
2)

Freely and voluntarily, without compulsion, inducement or trickery;

Knowingly based on an effective communication to the individual under custodial
investigation of his constitutional rights; and
3)
Intelligently with full appreciation of its importance and comprehension of its
consequences.
Once admitted, the confession must inspire credibility or be one which the normal
experience of mankind can accept as being within the realm of probability.
A confession meeting all the foregoing requisites constitutes evidence of a high order since
it is supported by the strong presumption that no person of normal mind will knowingly,

freely and deliberately confess that he is the perpetrator of a crime unless prompted by
truth and conscience. When all these requirements are met and the confession is admitted
in evidence, the burden of proof that it was obtained by undue pressure, threat or
intimidation rests upon the accused. (People v. Fabro, 277 SCRA 19, Aug. 11, 1997
[Panganiban])
2. Numerous decisions of this Court rule that for an extrajudicial confession to be
admissible, it must be: 1) voluntary; 2) made with the assistance of competent and
independent counsel; 3) express; and 4) in writing.
The mantle of protection afforded by the above-quoted constitutional provision covers the
period from the time a person is taken into custody for the investigation of his possible
participation in the commission of a crime or from the time he is singled out as a suspect in
the commission of the offense although not yet in custody. The exclusionary rule is
premised on the presumption that the defendant is thrust into an unfamiliar atmosphere
running through menacing police interrogation procedures where the potentiality for
compulsion, physical or psychological is forcefully apparent.
However, the rule is not intended as a deterrent to the accused from confessing guilt if he
voluntarily and intelligently so desires but to protect the accused from admitting what he is
coerced to admit although untrue. (People v. Base, 329 SCRA 158, 169-171, March 30,
2000, 1st Div. [Ynares-Santiago])
214. Is the choice of a lawyer by a person under custodial investigation who cannot afford
the services of a counsel exclusive as to preclude other equally competent and independent
attorneys from handling his defense?
Held: It must be remembered in this regard that while the right to counsel is immutable,
the option to secure the services of counsel de parte is not absolute. Indeed
The phrase competent and independent and preferably of his own choice were explicit
details which were added upon the persistence of human rights lawyers in the 1986
Constitutional Commission who pointed out cases where, during the martial law period, the
lawyers made available to the detainee would be one appointed by the military and
therefore beholden to the military. (Citing I Record of the Constitutional Commission 731734; I Bernas, The Constitution of the Republic of the Philippines, 1987 1 st ed., p. 347)
Xxx

xxx

xxx

Withal, the word preferably under Section 12(1), Article 3 of the 1987 Constitution does
not convey the message that the choice of a lawyer by a person under investigation is
exclusive as to preclude other equally competent and independent attorneys from handling
his defense. If the rule were otherwise, then, the tempo of a custodial investigation will be
solely in the hands of the accused who can impede, nay, obstruct the progress of the
interrogation by simply selecting a lawyer who for one reason or another, is not available to
protect his interest. This absurd scenario could not have been contemplated by the framers
of the charter.
While the initial choice in cases where a person under custodial investigation cannot afford
the services of a lawyer is naturally lodged in the police investigators, the accused really has
the final choice as he may reject the counsel chosen for him and ask for another one. A
lawyer provided by the investigators is deemed engaged by the accused where he never
raised any objection against the formers appointment during the course of the investigation
and the accused thereafter subscribes to the veracity of his statement before the swearing
officer.

Verily, to be an effective counsel [a] lawyer need not challenge all the questions being
propounded to his client. The presence of a lawyer is not intended to stop an accused from
saying anything which might incriminate him but, rather, it was adopted in our Constitution
to preclude the slightest coercion as would lead the accused to admit something false
(People v. Layuso, 175 SCRA 47 [1989]). The counsel, however, should never prevent an
accused from freely and voluntarily telling the truth. (People v. Base, 329 SCRA 158,
169-171, March 30, 2000, 1st Div. [Ynares-Santiago])
215. Should courts be allowed to distinguish between preliminary questioning and
custodial investigation proper when applying the exclusionary rule?
Held: The exclusionary rule sprang from a recognition that police interrogatory procedures
lay fertile grounds for coercion, physical and psychological, of the suspect to admit
responsibility for the crime under investigation. It was not intended as a deterrent to the
accused from confessing guilt, if he voluntarily and intelligently so desires but to protect the
accused from admitting what he is coerced to admit although untrue. Law enforcement
agencies are required to effectively communicate the rights of a person under investigation
and to insure that it is fully understood. Any measure short of this requirement is considered
a denial of such right. Courts are not allowed to distinguish between preliminary questioning
and custodial investigation proper when applying the exclusionary rule. Any information or
admission given by a person while in custody which may appear harmless or innocuous at
the time without the competent assistance of an independent counsel should be struck
down as inadmissible. It has been held, however, that an admission made to news reporters
or to a confidant of the accused is not covered by the exclusionary rule.
The admission allegedly made by the appellant is not in the form of a written extra-judicial
confession; the admission was allegedly made to the arresting officer during an informal
talk at the police station after his arrest as a prime suspect in the rape and killing of x x x.
The arresting policeman testified that the appellant admitted that he was with the victim on
the evening of January 12, 1994, the probable time of the commission of the crime and that
he carried her on his shoulder but that he was too drunk to remember what subsequently
happened. The arresting policeman admitted that he did not inform the appellant of his
constitutional rights to remain silent and to counsel. We note that the alleged admission is
incriminating because it places the accused in the company of the victim at the time the
crime was probably committed.
The exclusionary rule applies.
The accused was under arrest for the rape and killing of x x x and any statement allegedly
made by him pertaining to his possible complicity in the crime without prior notification of
his constitutional rights is inadmissible in evidence. The policemans apparent attempt to
circumvent the rule by insisting that the admission was made during an informal talk prior
to custodial investigation prior is not tenable. The appellant was not invited to the police
station as part of a general inquiry for any possible lead to the perpetrators of the crime
under investigation. At the time the alleged admission was made the appellant was in
custody and had been arrested as the prime suspect in the rape and killing of x x x. The
exclusionary rule presumes that the alleged admission was coerced, the very evil the rule
stands to avoid. Supportive of such presumption is the absence of a written extra-judicial
confession to that effect and the appellants denial in court of the alleged oral admission.
The alleged admission should be struck down as inadmissible. (People v. Bravo, 318
SCRA 812, Nov. 22, 1999, En Banc [Gonzaga-Reyes])
216. Explain the procedure for out-of-court identification of suspects and the test to
determine the admissibility of such identification.

Held: 1. In People v. Teehankee, Jr. (249 SCRA 54, October 6, 1995), the Court x x x
explained the procedure for out-of-court identification and the test to determine the
admissibility of such identification. It listed the following ways of identifying the suspects
during custodial investigation: show-up, mug shots and line-ups. The Court there ruled:
x x x. Out-of-court identification is conducted by the police in various ways. It is done thru
show-ups where the suspect alone is brought face to face with the witness for identification.
It is done thru mug shots where photographs are shown to the witness to identify the
suspect. It is also done thru line ups where a witness identifies the suspect from a group of
persons lined up for the purpose.
Since corruption of out-of-court identification
contaminates the integrity of in court identification during the trial of the case, courts have
fashioned out rules to assure its fairness and its compliance with the requirements of
constitutional due process. In resolving the admissibility of and relying on out-of- court
identification of suspects, courts have adopted the totality of circumstances test where they
consider the following factors, viz: (1) the witness opportunity to view the criminal at the
time of the crime; (2) the witness degree of attention at that time; (3) the accuracy of any
prior description given by the witness; (4) the level of certainty demonstrated by the witness
at the identification; (5) the length of time between the crime and the identification; and (6)
the suggestiveness of the identification procedure. (Ibid., p. 95) (People v. Timon, 281
SCRA 577, Nov. 12, 1997 [Panganiban])
2. x x x. The totality test has been fashioned precisely to assure fairness as well as
compliance with constitutional requirements of due process in regard to out-of-court
identification. These cited factors must be considered to prevent contamination of the
integrity of in-court identifications better. (People v. Gamer, 326 SCRA 660, Feb. 29,
2000, 2nd Div. [Quisumbing])
217. Does the prohibition for custodial investigation conducted without the assistance of
counsel extend to a person in a police line-up? Consequently, is the identification by private
complainant of accused who was not assisted by counsel during police line-up admissible in
evidence?
Held: The prohibition x x x does not extend to a person in a police line-up because that
stage of an investigation is not yet a part of custodial investigation. It has been repeatedly
held that custodial investigation commences when a person is taken into custody and is
singled out as a suspect in the commission of the crime under investigation and the police
officers begin to ask questions on the suspects participation therein and which tend to elicit
an admission. The stage of an investigation wherein a person is asked to stand in a police
line-up has been held to be outside the mantle of protection of the right to counsel because
it involves a general inquiry into an unsolved crime and is purely investigatory in nature. It
has also been held that an uncounseled identification at the police line-up does not preclude
the admissibility of an in-court identification. The identification made by the private
complainant in the police line-up pointing to Pavillare as one of his abductors is admissible in
evidence although the accused-appellant was not assisted by counsel. X x x (People v.
Pavillare, 329 SCRA 684, 694-695, April 5, 2000, En Banc [Per Curiam])
218. Petitioner in a case x x x posits the theory that since he had no counsel during the
custodial investigation when his urine sample was taken and chemically examined, Exhibits
L and M, x x x are also inadmissible in evidence since his urine sample was derived in
effect from an uncounselled extra-judicial confession. Petitioner claims that the taking of his
urine sample allegedly violates Article III, Section 2 of the Constitution x x x. Should his
contentions be upheld?

Held: We are not persuaded. The right to counsel begins from the time a person is taken
into custody and placed under investigation for the commission of a crime, i.e., when the
investigating officer starts to ask questions to elicit information and/or confession or
admissions from the accused. Such right is guaranteed by the Constitution and cannot be
waived except in writing and in the presence of counsel. However, what the Constitution
prohibits is the use of physical or moral compulsion to extort communication from the
accused, but not an inclusion of his body in evidence, when it may be material. In fact, an
accused may validly be compelled to be photographed or measured, or his garments or
shoes removed or replaced, or to move his body to enable the foregoing things to be done,
without running afoul of the proscription against testimonial compulsion. The situation in
the case at bar falls within the exemption under the freedom from testimonial compulsion
since what was sought to be examined came from the body of the accused. This was a
mechanical act the accused was made to undergo which was not meant to unearth
undisclosed facts but to ascertain physical attributes determinable by simple observation. In
fact, the record shows that petitioner and his co-accused were not compelled to give
samples of their urine but they in fact voluntarily gave the same when they were requested
to undergo a drug test. (Gutang v. People, 335 SCRA 479, July 11, 2000, 2 nd Div. [De
Leon])
The Right to Bail
219. In bail application where the accused is charged with a capital offense, will it be
proper for the judge to grant bail without conducting hearing if the prosecutor interposes no
objection to such application? Why?
Held: Jurisprudence is replete with decisions compelling judges to conduct the required
hearings in bail applications, in which the accused stands charged with a capital offense.
The absence of objection from the prosecution is never a basis for the grant of bail in such
cases, for the judge has no right to presume that the prosecutor knows what he is doing on
account of familiarity with the case. "Said reasoning is tantamount to ceding to the
prosecutor the duty of exercising judicial discretion to determine whether the guilt of the
accused is strong. Judicial discretion is the domain of the judge before whom the petition for
provisional liberty will be decided. The mandated duty to exercise discretion has never been
reposed upon the prosecutor."
Imposed in Baylon v. Sison (243 SCRA 284, April 6, 1995) was this mandatory duty to
conduct a hearing despite the prosecution's refusal to adduce evidence in opposition to the
application to grant and fix bail. (Joselito V. Narciso v. Flor Marie Sta. Romana-Cruz,
G.R. No. 134504, March 17, 2000, 3rd Div. [Panganiban])
220. What are the duties of the judge in cases of bail applications where the accused is
charged with capital offense?
Held: Basco v. Rapatalo (269 SCRA 220, March 5, 1997) enunciated the following duties of
the trial judge in such petition for bail:
1)

Notify the prosecutor of the hearing of the application for bail or require him to
submit his recommendation;
2)
Conduct a hearing of the application for bail regardless of whether or not the
prosecution refuses to present evidence to show that the guilt of the accused is strong for
the purpose of enabling the court to exercise its sound discretion;
3)
Decide whether the evidence of guilt of the accused is strong based on the
summary of evidence of the prosecution;

4)

If the guilt of the accused is not strong, discharge the accused upon the approval
of the bailbond. Otherwise, petition should be denied.
The Court added: "The above-enumerated procedure should now leave no room for doubt
as to the duties of the trial judge in cases of bail applications. So basic and fundamental is it
to conduct a hearing in connection with the grant of bail in the proper cases that it would
amount to judicial apostasy for any member of the judiciary to disclaim knowledge or
awareness thereof."
Additionally, the court's grant or refusal of bail must contain a summary of the evidence for
the prosecution, on the basis of which should be formulated the judge's own conclusion on
whether such evidence is strong enough to indicate the guilt of the accused. The summary
thereof is considered an aspect of procedural due process for both the prosecution and the
defense; its absence will invalidate the grant or the denial of the application for bail.
(Joselito V. Narciso v. Flor Marie Sta. Romana-Cruz, G.R. No. 134504, March 17,
2000, 3rd Div. [Panganiban])
221. Should the accused who remained at large after their conviction be allowed
provisional liberty? Can the bail bond that the accused previously posted be used during
the entire period of appeal?
Held: Despite an order of arrest from the trial court and two warnings from the Court of
Appeals, petitioners had remained at large. It is axiomatic that for one to be entitled to bail,
he should be in the custody of the law, or otherwise, deprived of liberty. The purpose of bail
is to secure ones release and it would be incongruous to grant bail to one who is free.
Petitioners Compliance and Motion x x x came short of an unconditional submission to
respondent courts lawful order and to its jurisdiction.
The trial court correctly denied petitioners motion that they be allowed provisional liberty
after their conviction, under their respective bail bonds. Apart from the fact that they were
at large, Section 5, Rule 114 of the Rules of Court, as amended by Supreme Court
Administrative Circular 12-94, provides that:
Xxx
The Court, in its discretion, may allow the accused to continue on provisional liberty under
the same bail bond during the period to appeal subject to the consent of the bondsman.
The bail bond that the accused previously posted can only be used during the 15-day period
to appeal (Rule 122) and not during the entire period of appeal. This is consistent with
Section 2(a) of Rule 114 which provides that the bail shall be effective upon approval and
remain in force at all stages of the case, unless sooner cancelled, until the promulgation of
the judgment of the Regional Trial Court, irrespective of whether the case was originally filed
in or appealed to it. This amendment, introduced by SC Administrative Circular 12-94 is a
departure from the old rules which then provided that bail shall be effective and remain in
force at all stages of the case until its full determination, and thus even during the period of
appeal. Moreover, under the present rule, for the accused to continue his provisional liberty
on the same bail bond during the period to appeal, consent of the bondsman is necessary.
From the record, it appears that the bondsman x x x filed a motion in the trial court x x x for
the cancellation of petitioners bail bond for the latters failure to renew the same upon its
expiration. Obtaining the consent of the bondsman was, thus, foreclosed. (Maguddatu v.
Court of Appeals, 326 SCRA 362, Feb. 23, 2000, 1st Div. [Kapunan])
223. Is a condition in an application for bail that accused be first arraigned before he could
be granted bail valid?

Held: In requiring that petitioner be first arraigned before he could be granted bail, the trial
court apprehended that if petitioner were released on bail he could, by being absent,
prevent his early arraignment and thereby delay his trial until the complainants got tired and
lost interest in their cases. Hence, to ensure his presence at the arraignment, approval of
petitioners bail bonds should be deferred until he could be arraigned. After that, even if
petitioner does not appear, trial can proceed as long as he is notified of the date of the
hearing and his failure to appear is unjustified, since under Art. III, Sec. 14(2) of the
Constitution, trial in absencia is authorized. This seems to be the theory of the trial court in
its x x x order conditioning the grant of bail to petitioner on his arraignment.
This theory is mistaken. In the first place x x x in cases where it is authorized, bail should be
granted before arraignment, otherwise the accused may be precluded from filing a motion to
quash. For if the information is quashed and the case is dismissed, there would then be no
need for the arraignment of the accused. In the second place, the trial court could ensure
the presence of petitioner at the arraignment precisely by granting bail and ordering his
presence at any stage of the proceedings, such as arraignment. Under Rule 114, Sec. 2(b)
of the Rules on Criminal Procedure, one of the conditions of bail is that the accused shall
appear before the proper court whenever so required by the court or these Rules, while
under Rule 116, Sec. 1(b) the presence of the accused at the arraignment is required.
On the other hand, to condition the grant of bail to an accused on his arraignment would be
to place him in a position where he has to choose between (1) filing a motion to quash and
thus delay his release on bail because until his motion to quash can be resolved, his
arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can
be arraigned at once and thereafter be released on bail. These scenarios certainly
undermine the accuseds constitutional right not to be put on trial except upon valid
complaint or information sufficient to charge him with a crime and his right to bail.
(Lavides v. CA, 324 SCRA 321, Feb. 1, 2000, 2nd Div. [Mendoza])
The Right to be Informed of the Nature and Cause of Accusation against the
Accused
224. What are the objectives of the right to be informed of the nature and cause of
accusations against the accused?
Held: Instructive in this regard is Section 6, Rule 110 of the Rules of Court x x x.
The purpose of the above-quoted rule is to inform the accused of the nature and cause of
the accusation against him, a right guaranteed by no less than the fundamental law of the
land (Article III, Section 14[2], 1987 Constitution). Elaborating on the defendants right to be
informed, the Court held in Pecho v. People (262 SCRA 518) that the objectives of this right
are:
1)

To furnish the accused with such a description of the charge against him as will
enable him to make the defense;
2)
To avail himself of his conviction or acquittal for protection against a further
prosecution for the same cause; and
3)
To inform the court of the facts alleged, so that it may decide whether they are
sufficient in law to support a conviction, if one should be had.
It is thus imperative that the Information filed with the trial court be complete to the end
that the accused may suitably prepare for his defense. Corollary to this, an indictment must
fully state the elements of the specific offense alleged to have been committed as it is the

recital of the essentials of a crime which delineates the nature and cause of accusation
against the accused.
Xxx
In the case under scrutiny, the information does not allege the minority of the victim x x x
although the same was proven during the trial x x x. The omission is not merely formal in
nature since doctrinally, an accused cannot be held liable for more than what he is indicted
for. It matters not how conclusive and convincing the evidence of guilt may be, but an
accused cannot be convicted of any offense, not charged in the Complaint or Information on
which he is tried or therein necessarily included. He has a right to be informed of the nature
of the offense with which he is charged before he is put on trial. To convict an accused of an
offense higher than that charged in the Complaint or Information on which he is tried would
constitute unauthorized denial of that right. (People v. Bayya, 327 SCRA 771, March
10, 2000, En Banc [Purisima])
The Right to a Fair Trial
225. What is the purpose of the rule barring trial or sentence of an insane person? What
are the reasons underlying it?
Held: The rule barring trial or sentence of an insane person is for the protection of the
accused, rather than of the public. It has been held that it is inhuman to require an accused
disabled by God to make a just defense for his life or liberty. To put a legally incompetent
person on trial or to convict and sentence him is a violation of the constitutional rights to a
fair trial; and this has several reasons underlying it. For one, the accuracy of the
proceedings may not be assured, as an incompetent defendant who cannot comprehend the
proceedings may not appreciate what information is relevant to the proof of his innocence.
Moreover, he is not in a position to exercise many of the rights afforded a defendant in a
criminal case, e.g., the right to effectively consult with counsel, the right to testify in his own
behalf, and the right to confront opposing witnesses, which rights are safeguards for the
accuracy of the trial result. Second, the fairness of the proceedings may be questioned, as
there are certain basic decisions in the course of a criminal proceeding which a defendant is
expected to make for himself, and one of these is his plea. Third, the dignity of the
proceedings may be disrupted, for an incompetent defendant is likely to conduct himself in
the courtroom in a manner which may destroy the decorum of the court. Even if the
defendant remains passive, his lack of comprehension fundamentally impairs the functioning
of the trial process. A criminal proceeding is essentially an adversarial proceeding. If the
defendant is not a conscious and intelligent participant, the adjudication loses its character
as a reasoned interaction between an individual and his community and becomes and
invective against an insensible object. Fourth, it is important that the defendant knows why
he is being punished, a comprehension which is greatly dependent upon his understanding
of what occurs at trial. An incompetent defendant may not realize the moral reprehensibility
of his conduct. The societal goal of institutionalized retribution may be frustrated when the
force of the state is brought to bear against one who cannot comprehend its significance.
(People v. Estrada, 333 SCRA 699, 718-719, June 19, 2000, En Banc [Puno])
The Right to an Impartial Trial
226. What are the two principal legal and philosophical schools of thought on how to deal
with the rain of unrestrained publicity during the investigation and trial of high profile cases?

Held: There are two (2) principal legal and philosophical schools of thought on how to deal
with the rain of unrestrained publicity during the investigation and trial of high profile cases.
The British approach the problem with the presumption that publicity will prejudice a jury.
Thus, English courts readily stay and stop criminal trials when the right of an accused to fair
trial suffers a threat. The American approach is different. US courts assume a skeptical
approach about the potential effect of pervasive publicity on the right of an accused to a fair
trial. They have developed different strains of tests to resolve this issue, i.e., substantial
probability of irreparable harm, strong likelihood, clear and present danger, etc. (Estrada v.
Desierto, G.R. Nos. 146710-15, March 2, 2001, En Banc [Puno])
227. Should the Ombudsman be stopped from conducting the investigation of the cases
filed against petitioner (former President) Estrada due to the barrage of prejudicial publicity
on his guilt?
Held: Petitioner x x x contends that the respondent Ombudsman should be stopped from
conducting the investigation of the cases filed against him due to the barrage of prejudicial
publicity on his guilt. He submits that the respondent Ombudsman has developed bias and
is all set to file the criminal cases in violation of his right to due process.
Xxx
This is not the first time the issue of trial by publicity has been raised in this Court to
stop the trials or annul convictions in high profile criminal cases. In People v. Teehankee, Jr.
(249 SCRA 54 [1995]), later reiterated in the case of Larranaga v. Court of Appeals, et al.
(287 SCRA 581 at pp. 596-597 [1998]), we laid down the doctrine that:
We cannot sustain appellants claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar
pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we
rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure,
responsible reporting enhances an accuseds right to a fair trial for, as well pointed out, a
responsible press has always been regarded as the handmaiden of effective judicial
administration, especially in the criminal field x x x. The press does not simply publish
information about trials but guards against the miscarriage of justice by subjecting the
police, prosecutors, and judicial processes to extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere
fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by
itself prove that the publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members of the bench from pretrial and other off-court publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast tables and
right to our bedrooms. These news form part of our everyday menu of the facts and fictions
of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of
touch with the world. We have not installed the jury system whose members are overly
protected from publicity lest they lose their impartiality. x x x. Our judges are learned in the
law and trained to disregard off-court evidence and on-camera performances of parties to a
litigation. Their mere exposure to publications and publicity stunts does not per se fatally
infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial judge due
to the barrage of publicity that characterized the investigation and trial of the case. In
Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and
adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial
publicity, there must be allegation and proof that the judges have been unduly influenced,

not simply that they might be, by the barrage of publicity. In the case at bar, the records do
not show that the trial judge developed actual bias against appellant as a consequence of
the extensive media coverage of the pre-trial and trial of his case. The totality of
circumstances of the case does not prove that the trial judge acquired a fixed opinion as a
result of prejudicial publicity which is incapable of change even by evidence presented
during the trial. Appellant has the burden to prove this actual bias and he has not
discharged the burden.
We expounded further on this doctrine in the subsequent case of Webb v. Hon. Raul
de Leon, etc. (247 SCRA 652 [1995]) and its companion cases, viz.:
Again, petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty whole undergoing a preliminary
investigation.
Xxx
The democratic settings, media coverage of trials of sensational cases cannot be avoided
and oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the case at bar. Our daily
diet of facts and fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime. Indeed, even
the principal actors in the case the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media abuses and
their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the
press and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was wisely
held:
x x x
(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nations organic laws were adopted, criminal
trials both here and in England had long been presumptively open, thus giving assurance
that the proceedings were conducted fairly to all concerned and discouraging perjury, the
misconduct of participants, or decisions based on secret bias or partiality. In addition, the
significant community therapeutic value of public trials was recognized: when a shocking
crime occurs, a community reaction of outrage and public protest often follows, and
thereafter the open processes of justice serve an important prophylactic purpose, providing
an outlet for community concern, hostility, and emotion. To work effectively, it is important
that societys criminal process satisfy the appearance of justice, Offutt v. United States,
348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to
observe such process. From this unbroken, uncontradicted history, supported by reasons as
valid today as in centuries past, it must be concluded that a presumption of openness
inheres in the very nature of a criminal trial under this Nations system of justice, Cf., e.g.,
Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on
matters relating to the functioning of government. In guaranteeing freedoms such as those
of speech and press, the First Amendment can be read as protecting the right of everyone to
attend trials so as give meaning to those explicit guarantees; the First Amendment right to
receive information and ideas means, in the context of trials, that the guarantees of speech
and press, standing alone, prohibit government from summarily closing courtroom doors

which had long been open to the public at the time the First Amendment was adopted.
Moreover, the right of assembly is also relevant, having been regarded not only as an
independent right but also as a catalyst to augment the free exercise of the other First
Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom
is a public place where the people generally and representatives of the media have a
right to be present, and where their presence historically has been thought to enhance the
integrity and quality of what takes place.
(c) Even though the Constitution contains no provision which by its terms guarantees to the
public the right to attend criminal trials, various fundamental rights, not expressly
guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights.
The right to attend criminal trial is implicit in the guarantees of the First Amendment:
without the freedom to attend such trials, which people have exercised for centuries,
important aspects of freedom of speech and of the press could be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus, in
Martelino, et al. v. Alejandro, et al., we held that to warrant a finding of prejudicial publicity
there must be allegation and proof that the judges have been unduly influenced, not simply
that they might be, by the barrage of publicity. In the case at bar, we find nothing in the
records that will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of
the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ
Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors.
Their long experience in criminal investigation is a factor to consider in determining whether
they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution
carries no indubitable indicia of bias for it does not appear that they considered any extrarecord evidence except evidence properly adduced by the parties. The length of time the
investigation was conducted despite it summary nature and the generosity with which they
accommodated the discovery motions of petitioners speak well of their fairness. At no
instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel
on the ground of bias resulting from their bombardment of prejudicial publicity.
Applying the above ruling, we hold that there is not enough evidence to warrant this Court
to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge his burden of proof . He
needs to show more than weighty social science evidence to successfully prove the impaired
capacity of a judge to render a bias-free decision. Well to note, the cases against the
petitioner are still undergoing preliminary investigation by a special panel of prosecutors in
the office of the respondent Ombudsman. No allegation whatsoever has been made by the
petitioner that the minds of the members of this special panel have already been infected by
bias because of the pervasive prejudicial publicity against him. Indeed, the special panel
has yet to come out with its findings and the Court cannot second guess whether its
recommendation will be unfavorable to the petitioner. (Estrada v. Desierto, G.R. Nos.
146710-15, March 2, 2001, En Banc [Puno])
The Right against Self-Incrimination
228.

Discuss the types of immunity statutes. Which has broader scope of protection?

Held: Our immunity statutes are of American origin. In the United States, there are two
types of statutory immunity granted to a witness. They are the transactional immunity and
the use-and-derivative-use immunity. Transactional immunity is broader in the scope of its

protection. By its grant, a witness can no longer be prosecuted for any offense whatsoever
arising out of the act or transaction. In contrast, by the grant of use-and-derivative-use
immunity, a witness is only assured that his or her particular testimony and evidence
derived from it will not be used against him or her in a subsequent prosecution. (Mapa, Jr.
v. Sandiganbayan, 231 SCRA 783, 797-798, April 26, 1994, En Banc [Puno])
229. Is the grant of immunity to an accused willing to testify for the government a special
privilege and therefore must be strictly construed against the accused?
Held: [W]e reject respondent courts ruling that the grant of section 5 immunity must be
strictly construed against the petitioners. It simplistically characterized the grant as a
special privilege, as if it was gifted by the government, ex gratia. In taking this posture, it
misread the raison d etre and the long pedigree of the right against self-incrimination vis-vis immunity statutes.
The days of inquisition brought about the most despicable abuses against human rights. Not
the least of these abuses is the expert use of coerced confessions to send to the guillotine
even the guiltless. To guard against the recurrence of this totalitarian method, the right
against self-incrimination was ensconced in the fundamental laws of all civilized countries.
Over the years, however, came the need to assist government in its task of containing crime
for peace and order is a necessary matrix of public welfare. To accommodate the need, the
right against self-incrimination was stripped of its absoluteness. Immunity statutes in
varying shapes were enacted which would allow government to compel a witness to testify
despite his plea of the right against self-incrimination. To insulate these statutes from the
virus of unconstitutionality, a witness is given what has come to be known as transactional
or a use-derivative-use immunity x x x. Quite clearly, these immunity statutes are not a
bonanza from government. Those given the privilege of immunity paid a high price for it
the surrender of their precious right to be silent. Our hierarchy of values demands that the
right against self-incrimination and the right to be silent should be accorded greater respect
and protection. Laws that tend to erode the force of these preeminent rights must
necessarily be given a liberal interpretation in favor of the individual. The government has a
right to solve crimes but it must do it, rightly. (Mapa, Jr. v. Sandiganbayan, 231 SCRA
783, 805-806, April 26, 1994, En Banc [Puno])
230. May the right against self-incrimination be validly invoked during inquiry in aid of
legislation?
Held: Now to another matter. It has been held that a congressional committees
right to inquire is subject to all relevant limitations placed by the Constitution on
governmental action, including the relevant limitations of the Bill of Rights. (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 individuals right to privacy nor abridge his liberty of
speech, press, religion or assembly. (Watkins v. US, 354 USS 178 citing US v. Rumely, 345
US 41)

One of the basic rights guaranteed by the Constitution to an individual is the right
against self-incrimination (Sec. 17, Art. III of the Constitution). This right construed as the
right to remain completely silent may be availed of by the accused in a criminal case; but it
may be invoked by other witnesses only as questions are asked of them.
This distinction is enunciated by the Court in Romeo Chavez v. The Honorable Court
of Appeals, et al. (G.R. No. L-29169, August 19, 1968, 24 SCRA 663) thus
Petitioner, as accused, occupies a different tier of protection from an ordinary witness.
Whereas an ordinary witness may be compelled to take the witness stand and claim the
privilege as each question requiring an incriminating answer is shot at him, an accused may
altogether refuse to take the witness stand and refuse to answer any and all questions.
Moreover, this right of the accused is extended to respondents in administrative
investigations but only if they partake of the nature of a criminal proceeding or analogous to
a criminal proceeding. In Galman v. Pamaran (G.R. Nos. 71208-09, August 30, 1985, 138
SCRA 294), the Court reiterated the doctrine in Cabal v. Kapunan (6 SCRA 1059) to illustrate
the right of witnesses to invoke the right against self-incrimination not only in criminal
proceedings but also in all other types of suit.
It was held that:
We did not therein state that since he is not an accused and the case is not a criminal case,
Cabal cannot refuse to take the witness stand and testify, and that he can invoke his right
against self-incrimination only when a question which tends to elicit an answer that will
incriminate him is propounded to him. Clearly then, it is not the character of the suit
involved but the nature of the proceedings that controls. The privilege has consistently been
held to extend to all proceedings sanctioned by law and to all cases in which punishment is
sought to be visited upon a witness, whether a party or not.
We do not here modify these doctrines. If we presently rule that petitioners may not
be compelled by the respondent Committee to appear, testify and produce evidence before
it, it is only because we hold that the questioned inquiry is not in aid of legislation and, if
pursued, would be violative of the principle of separation of powers between the legislative
and the judicial departments of government, ordained by the Constitution. (Bengzon, Jr. v.
Senate Blue Ribbon Committee, 203 SCRA 767, Nov. 20, 1991, En Banc [Padilla])
The Right against Double Jeopardy
231.

Discuss the two kinds of double jeopardy.

Held: Our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of
Clause 20, Section 1, Article III of the Constitution ordains that no person shall be twice put
in jeopardy of punishment for the same offense. The second sentence of said clause
provides that if an act is punishable by a law and an ordinance, conviction or acquittal
under either shall constitute a bar to another prosecution for the same act. Thus, the first
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
accuseds 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, 2 nd 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 accuseds right against double jeopardy?
Held: Here we must inquire whether there was unreasonable delay in the conduct of
the trial so that violation of the right to speedy trial of the accused x x x resulted. For it
must be recalled that in the application of the constitutional guaranty of the right to speedy
disposition of cases, particular regard must also be taken of the facts and circumstances
peculiar to each case (Socrates v. Sandiganbayan, 253 SCRA 773, 788 [1996]). Both the
trial court and the appellate court noted that after pre-trial of petitioners case was
terminated x x x continuous trial was set x x x. The scheduled hearings, however, were
cancelled when the presiding judge was promoted to the Court of Appeals, and his successor
as trial judge was not immediately appointed, nor another judge detailed to his sala.
Xxx
As observed by respondent appellate court, delay in the trial was due to
circumstances beyond the control of the parties and of the trial court. X x x. Thus, after a
closer analysis of these successive events, the trial court realized that the dates of the
hearings were transferred for valid grounds. Hence, the trial court set aside its initial order
and reinstated the cases against petitioner, which order the appellate court later sustained.
That there was no unreasonable delay of the proceedings is apparent from the
chronology of the hearings with the reasons for their postponements or transfers. X x x
There being no oppressive delay in the proceedings, and no postponements
unjustifiably sought, we concur with the conclusion reached by the Court of Appeals that
petitioners right to speedy trial had not been infringed. Where the right of the accused to
speedy trial had not been violated, there was no reason to support the initial order of
dismissal.

It follows that petitioner cannot invoke the constitutional right against double
jeopardy when that order was reconsidered seasonably (People v. Leviste, 255 SCRA 238,
249 [1996]). For as petitioners right to speedy trial was not transgressed, this exception to
the fifth element of double jeopardy that the defendant was acquitted or convicted, or the
case was dismissed or otherwise terminated without the express consent of the accused
was not met. The trial courts initial order of dismissal was upon motion of petitioners
counsel, hence made with the express consent of petitioner. That being the case, despite
the reconsideration of said order, double jeopardy did not attach. As this Court had occasion
to rule in People v. Tampal (244 SCRA 202), reiterated in People v. Leviste (Ibid.), where we
overturned an order of dismissal by the trial court predicated on the right to speedy trial
It is true that in an unbroken line of cases, we have held that the dismissal of cases on the
ground of failure to prosecute is equivalent to an acquittal that would bar further prosecution
of the accused for the same offense. It must be stressed, however, that these dismissals
were predicated on the clear right of the accused to speedy trial. These cases are not
applicable to the petition at bench considering that the right of the private respondents to
speedy trial has not been violated by the State. For this reason, private respondents cannot
invoke their right against double jeopardy.
Both the trial court and the Court of Appeals were thus not in error when they allowed
reinstatement of the cases against petitioner. (Almario v. Court of Appeals, 355 SCRA 1,
Mar. 22, 2001, 2nd Div. [Quisumbing]
236. Is there double jeopardy when an accused was acquitted in a criminal case for
reckless imprudence but the civil aspect of the case was elevated to the Court of Appeals
and the latter found him liable for indemnity and damages?
Held: Petitioner opines that the Court of Appeals should not have disturbed the findings of
the trial court on the lack of negligence or reckless imprudence under the guise of
determining his civil liability. He argues that the trial courts finding that he was neither
imprudent nor negligent was the basis for his acquittal, and not reasonable doubt. He
submits that in finding him liable for indemnity and damages, the appellate court not only
placed his acquittal in suspicion, but also put him in double jeopardy.
Private respondents contend that while the trial court found that petitioners guilt had not
been proven beyond reasonable doubt, it did not state in clear and unequivocal terms that
petitioner was not recklessly imprudent or negligent. Hence, impliedly the trial court
acquitted him on reasonable doubt. Since civil liability is not extinguished in criminal cases,
if the acquittal is based on reasonable doubt, the Court of Appeals had to review the findings
of the trial court to determine if there was a basis for awarding indemnity and damages.
Preliminarily, petitioners claim that the decision of the appellate court awarding indemnity
placed him in double jeopardy is misplaced. X x x. When a person is charged with an
offense and the case is terminated either by acquittal or conviction or in any manner without
the consent of the accused, the latter cannot again be charged with the same or identical
offense (Melo v. People, 85 Phil. 766, 768 [1950]). This is double jeopardy. For double
jeopardy to exist, the following elements must be established: (1) a first jeopardy must have
attached prior to the second; (2) the first jeopardy must have terminated; and (3) the
second jeopardy must be for the same offense as the first (People v. Bocar, 138 SCRA 166,

171 [1985]). In the instant case, petitioner had once been placed in jeopardy by the filing of
Criminal Case No. 066 and the jeopardy was terminated by his discharge. The judgment of
acquittal became immediately final. Note, however, that what was elevated to the Court of
Appeals by private respondents was the civil aspect of Criminal Case No. 066. Petitioner was
not charged anew in CA-G.R. CV No. 19240 with a second criminal offense identical to the
first offense. The records clearly show that no second criminal offense was being imputed to
petitioner on appeal. In modifying the lower courts judgment, the appellate court did not
modify the judgment of acquittal. Nor did it order the filing of a second criminal cases
against petitioner for the same offense. Obviously, therefore, there was no second jeopardy
to speak of. Petitioners claim of having been placed in double jeopardy is incorrect.
Our law recognizes two kinds of acquittal, with different effects on the civil liability of the
accused. First is an acquittal on the ground that the accused is not the author of the act or
omission complained of. This instance closes the door to civil liability, for a person who has
been found to be not the perpetrator of any act or omission cannot and can never be held
liable for such or omission (Almeida, et al. v. Abaroa, 8 Phil. 178, 181 [1907]; other citations
omitted.) There being no delict, civil liability ex delicto is out of the question, and the civil
action, if any, which may be instituted must be based on grounds other than the delict
complained of. This is the situation contemplated in Rule 111 of the Rules of Court. The
second instance is an acquittal based on reasonable doubt on the guilt of the accused. In
this case, even if the guilt of the accused has not been satisfactorily established, he is not
exempt from civil liability which may be proved by preponderance of evidence only
(Manahan, Jr. v. Court of Appeals, 255 SCRA 202, 214 [1996], citing Padilla v. Court of
Appeals, 129 SCRA 558 [1984]). This is the situation contemplated in Article 29 of the Civil
Code, where the civil action for damages is for the same act or omission. Although the
two actions have different purposes, the matters discussed in the civil case are similar to
those discussed in the criminal case. However, the judgment in the criminal proceeding
cannot be read in evidence in the civil action to establish any fact there determined, even
though both actions involve the same act or omission (Almeida Chantangco and Lete v.
Abaroa, supra note 13, at 1061). The reason for this rule is that the parties are not the same
and secondarily, different rules of evidence are applicable. Hence, notwithstanding herein
petitioners acquittal, the Court of Appeals in determining whether Article 29 applied, was
not precluded from looking into the question of petitioners negligence or reckless
imprudence. (Manantan v. Court of Appeals, 350 SCRA 387, Jan. 29, 2001, 2nd Div.
[Quisumbing])

The Right against Ex Post Facto Laws and Bills of Attainder

237.

What is a bill of attainder? Is P.D. 1866 a bill of attainder?

Held: [T]he Court, in People v. Ferrer (G.R. Nos. L-32613-14, December 27, 1972, 48 SCRA
382), defined a bill of attainder as a legislative act which inflicts punishment on individuals
or members of a particular group without a judicial trial. Essential to a bill of attainder are a
specification of certain individuals or a group of individuals, the imposition of a punishment,
penal or otherwise, and the lack of judicial trial. This last element, the total lack of court
intervention in the finding of guilt and the determination of the actual penalty to be

imposed, is the most essential. P.D. No. 1866 does not possess the elements of a bill of
attainder. It does not seek to inflict punishment without a judicial trial. Nowhere in the
measure is there a finding of guilt and an imposition of a corresponding punishment. What
the decree does is to define the offense and provide for the penalty that may be imposed,
specifying the qualifying circumstances that would aggravate the offense. There is no
encroachment on the power of the court to determine after due hearing whether the
prosecution has proved beyond reasonable doubt that the offense of illegal possession of
firearms has been committed and that the qualifying circumstances attached to it has been
established also beyond reasonable doubt as the Constitution and judicial precedents
require. (Misolas v. Panga, 181 SCRA 648, 659-660, Jan. 30, 1990, En Banc
[Cortes])
238.

What is an ex post facto law? Is R.A. No. 8249 an ex post facto law?

Held: Ex post facto law, generally, prohibits retrospectivity of penal laws. R.A. 8249 is not a
penal law. It is a substantive law on jurisdiction which is not penal in character. Penal laws
are those acts of the Legislature which prohibit certain acts and establish penalties for their
violations; or those that define crimes, treat of their nature, and provide for their
punishment.
R.A. 7975, which amended P.D. 1606 as regards the Sandiganbayans
jurisdiction, its mode of appeal and other procedural matters, has been declared by the
Court as not a penal law, but clearly a procedural statute, i.e., one which prescribes rules of
procedure by which courts applying laws of all kinds can properly administer justice. Not
being a penal law, the retroactive application of R.A. 8249 cannot be challenged as
unconstitutional.
Petitioners and intervenors contention that their right to a two-tiered appeal which they
acquired under R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The
same contention has already been rejected by the court several times considering that the
right to appeal is not a natural right but statutory in nature that can be regulated by law.
The mode of procedure provided for in the statutory right of appeal is not included in the
prohibition against ex post facto laws. R.A. 8249 pertains only to matters of procedure, and
being merely an amendatory statute it does not partake the nature of an ex post facto law.
It does not mete out a penalty and, therefore, does not come within the prohibition.
Moreover, the law did not alter the rules of evidence or the mode of trial. It has been ruled
that adjective statutes may be made applicable to actions pending and unresolved at the
time of their passage.
At any rate, R.A. 8249 has preserved the accuseds right to appeal to the Supreme Court to
review questions of law. On the removal of the intermediate review of facts, the Supreme
Court still has the power of review to determine if the presumption of innocence has been
convincingly overcome. (Panfilo M. Lacson v. The Executive Secretary, et. al., G.R.
No. 128096, Jan. 20, 1999 [Martinez])
ADMINISTRATIVE LAW
239.

Describe the Administrative Code of 1987

Held: The Code is a general law and incorporates in a unified document the major
structural, functional and procedural principles of governance (Third Whereas Clause,
Administrative Code of 1987) and embodies changes in administrative structures and
procedures designed to serve the people. (Fourth Whereas Clause, Administrative Code of
1987) The Code is divided into seven (7) books. These books contain provisions on the
organization, powers and general administration of departments, bureaus and offices under
the executive branch, the organization and functions of the Constitutional Commissions and

other constitutional bodies, the rules on the national government budget, as well as
guidelines for the exercise by administrative agencies of quasi-legislative and quasi-judicial
powers. The Code covers both the internal administration, i.e., internal organization,
personnel and recruitment, supervision and discipline, and the effects of the functions
performed by administrative officials on private individuals or parties outside government.
(Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])
240.

What is administrative power?

Held: Administrative power is concerned with the work of applying policies and enforcing
orders as determined by proper governmental organs. It enables the President to fix a
uniform standard of administrative efficiency and check the official conduct of his agents. To
this end, he can issue administrative orders, rules and regulations. (Ople v. Torres, G.R.
No. 127685, July 23, 1998 [Puno])
241.

What is an administrative order?

Held: An administrative order is an ordinance issued by the President which relates to

specific aspects in the administrative operation of government. It must be in harmony with
the law and should be for the sole purpose of implementing the law and carrying out the
legislative policy. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])
242.

What is the Government of the Republic of the Philippines?

Answer: The Government of the Republic of the Philippines refers to the corporate
governmental entity through which the functions of the government are exercised
throughout the Philippines, including, save as the contrary appears from the context, the
various arms through which political authority is made effective in the Philippines, whether
pertaining to the autonomous regions, the provincial, city, municipal or barangay
subdivisions or other forms of local government. (Sec. 2[1], Introductory Provisions,
Executive Order No. 292)
243. What is a government instrumentality? What are included in the term government
instrumentality?
Answer: A government instrumentality refers to any agency of the national government,
not integrated within the department framework, vested with special functions or jurisdiction
by law, endowed with some if not all corporate powers, administering special funds, enjoying
operational autonomy, usually through a charter. The term includes regulatory agencies,
chartered institutions and government-owned or controlled corporations. (Sec. 2[10],
Introductory Provisions, Executive Order No. 292)
244.

What is a regulatory agency?

Answer: A regulatory agency refers to any agency expressly vested with jurisdiction to
regulate, administer or adjudicate matters affecting substantial rights and interest of private
persons, the principal powers of which are exercised by a collective body, such as a
commission, board or council. (Sec. 2[11], Introductory Provisions, Executive Order
No. 292)
245.

What is a chartered institution?

Answer: A chartered institution refers to any agency organized or operating under a

special charter, and vested by law with functions relating to specific constitutional policies or

objectives. This term includes state universities and colleges and the monetary authority of
the State. (Section 2[12], Introductory Provisions, Executive Order No. 292)
246. When is a government-owned or controlled corporation deemed to be performing
proprietary function? When is it deemed to be performing governmental function?
Held:
Government-owned or controlled corporations may perform governmental or
proprietary functions or both, depending on the purpose for which they have been created.
If the purpose is to obtain special corporate benefits or earn pecuniary profit, the function is
proprietary. If it is in the interest of health, safety and for the advancement of public good
and welfare, affecting the public in general, the function is governmental. Powers classified
as proprietary are those intended for private advantage and benefit. (Blaquera v.
Alcala, 295 SCRA 366, 425, Sept. 11, 1998, En Banc [Purisima])
247. Does the petition for annulment of proclamation of a candidate merely involve the
exercise by the COMELEC of its administrative power to review, revise and reverse the
actions of the board of canvassers and, therefore, justifies non-observance of procedural
due process, or does it involve the exercise of the COMELEC's quasi-judicial function?
Held: Taking cognizance of private respondent's petitions for annulment of petitioner's
proclamation, COMELEC was not merely performing an administrative function.
The
administrative powers of the COMELEC include the power to determine the number and
location of polling places, appoint election officials and inspectors, conduct registration of
voters, deputize law enforcement agencies and governmental instrumentalities to ensure
free, orderly, honest, peaceful and credible elections, register political parties, organizations
or coalition, accredit citizen's arms of the Commission, prosecute election offenses, and
recommend to the President the removal of or imposition of any other disciplinary action
upon any officer or employee it has deputized for violation or disregard of its directive, order
or decision. In addition, the Commission also has direct control and supervision over all
personnel involved in the conduct of election. However, the resolution of the adverse claims
of private respondent and petitioner as regards the existence of a manifest error in the
questioned certificate of canvass requires the COMELEC to act as an arbiter. It behooves the
Commission to hear both parties to determine the veracity of their allegations and to decide
whether the alleged error is a manifest error. Hence, the resolution of this issue calls for the
exercise by the COMELEC of its quasi-judicial power. It has been said that where a power
rests in judgment or discretion, so that it is of judicial nature or character, but does not
involve the exercise of functions of a judge, or is conferred upon an officer other than a
judicial officer, it is deemed quasi-judicial. The COMELEC therefore, acting as quasi-judicial
tribunal, cannot ignore the requirements of procedural due process in resolving the petitions
filed by private respondent. (Federico S. Sandoval v. COMELEC, G.R. No. 133842, Jan.
26, 2000 [Puno])
248.

Discuss the Doctrine of Primary Jurisdiction (or Prior Resort).

Held: Courts cannot and will not resolve a controversy involving a question which is within
the jurisdiction of an administrative tribunal, especially where the question demands the
exercise of sound administrative discretion requiring the special knowledge, experience and
services of the administrative tribunal to determine technical and intricate matters of fact.
In recent years, it has been the jurisprudential trend to apply this doctrine to cases involving
matters that demand the special competence of administrative agencies even if the
question involved is also judicial in character. It applies where a claim is originally
cognizable in the courts, and comes into play whenever enforcement of the claim requires
the resolution of issues which, under a regulatory scheme, have been placed within the

special competence of an administrative body; in such case, the judicial process is

suspended pending referral of such issues to the administrative body for its view.
In cases where the doctrine of primary jurisdiction is clearly applicable, the court cannot
arrogate unto itself the authority to resolve a controversy, the jurisdiction over which is
lodged with an administrative body of special competence. (Villaflor v. CA, 280 SCRA
287)
249. Discuss the Doctrine of Exhaustion of Administrative Remedies.
exceptions thereto.

Enumerate

Held: 1. Before a party is allowed to seek the intervention of the court, it is a pre-condition
that he should have availed of all the means of administrative processes afforded him.
Hence, if a remedy within the administrative machinery can still be resorted to by giving the
administrative officer concerned every opportunity to decide on a matter that comes within
his jurisdiction then such remedy should be exhausted first before the courts judicial power
can be sought. The premature invocation of courts jurisdiction is fatal to ones cause of
action. Accordingly, absent any finding of waiver or estoppel the case is susceptible of
dismissal for lack of cause of action. This doctrine of exhaustion of administrative remedies
was not without its practical and legal reasons, for one thing, availment of administrative
remedy entails lesser expenses and provides for a speedier disposition of controversies. It is
no less true to state that the courts of justice for reasons of comity and convenience will shy
away from a dispute until the system of administrative redress has been completed and
complied with so as to give the administrative agency concerned every opportunity to
correct its error and to dispose of the case.
This doctrine is disregarded:
1)
2)
3)

when there is a violation of due process;

when the issue involved is purely a legal question;
when the administrative action is patently illegal amounting to lack or excess of
jurisdiction;
4)
when there is estoppel on the part of the administrative agency concerned;
5)
when there is irreparable injury;
6)
when the respondent is a department secretary whose acts as an alter ego of the
President bears the implied and assumed approval of the latter;
7)
when to require exhaustion of administrative remedies would be unreasonable;
8)
when it would amount to a nullification of a claim;
9)
when the subject matter is a private land in land case proceeding;
10)
when the rule does not provide a plain, speedy and adequate remedy, and
11)
when there are circumstances indicating the urgency of judicial intervention.
(Paat v. CA, 266 SCRA 167 [1997])
2. Non-exhaustion of administrative remedies is not jurisdictional. It only renders the action
premature, i.e., claimed cause of action is not ripe for judicial determination and for that
reason a party has no cause of action to ventilate in court. (Carale v. Abarintos, 269
SCRA 132)
250. When may the Government not validly invoke the rule that prescription does not run
against the State?
Held: While it is true that prescription does not run against the State, the same may not be
invoked by the government in this case since it is no longer interested in the subject matter.
While Camp Wallace may have belonged to the government at the time Rafael Galvezs title

was ordered cancelled in Land Registration Case No. N-361, the same no longer holds true
today.
Republic Act No. 7227, otherwise known as the Base Conversion and Development Act of
1992, created the Bases Conversion and Development Authority. X x x
Xxx
With the transfer of Camp Wallace to the BCDA, the government no longer has a right or
interest to protect. Consequently, the Republic is not a real party in interest and it may not
institute the instant action. Nor may it raise the defense of imprescriptibility, the same
being applicable only in cases where the government is a party in interest. X x x. Being the
owner of the areas covered by Camp Wallace, it is the Bases Conversion and Development
Authority, not the Government, which stands to be benefited if the land covered by TCT No.
T-5710 issued in the name of petitioner is cancelled.
Nonetheless, it has been posited that the transfer of military reservations and their
extensions to the BCDA is basically for the purpose of accelerating the sound and balanced
conversion of these military reservations into alternative productive uses and to enhance the
benefits to be derived from such property as a measure of promoting the economic and
social development, particularly of Central Luzon and, in general, the countrys goal for
enhancement (Section 2, Republic Act No. 7227). It is contended that the transfer of these
military reservations to the Conversion Authority does not amount to an abdication on the
part of the Republic of its interests, but simply a recognition of the need to create a body
corporate which will act as its agent for the realization of its program. It is consequently
asserted that the Republic remains to be the real party in interest and the Conversion
Authority merely its agent.
We, however, must not lose sight of the fact that the BCDA is an entity invested with a
personality separate and distinct from the government. X x x
It may not be amiss to state at this point that the functions of government have been
classified into governmental or constituent and proprietary or ministrant. While public
benefit and public welfare, particularly, the promotion of the economic and social
development of Central Luzon, may be attributable to the operation of the BCDA, yet it is
certain that the functions performed by the BCDA are basically proprietary in nature. The
promotion of economic and social development of Central Luzon, in particular, and the
countrys goal for enhancement, in general, do not make the BCDA equivalent to the
Government. Other corporations have been created by government to act as its agents for
the realization of its programs, the SSS, GSIS, NAWASA and the NIA, to count a few, and yet,
the Court has ruled that these entities, although performing functions aimed at promoting
public interest and public welfare, are not government-function corporations invested with
governmental attributes. It may thus be said that the BCDA is not a mere agency of the
Government but a corporate body performing proprietary functions.
Xxx
Having the capacity to sue or be sued, it should thus be the BCDA which may file an action
to cancel petitioners title, not the Republic, the former being the real party in interest. One
having no right or interest to protect cannot invoke the jurisdiction of the court as a party
plaintiff in an action (Ralla v. Ralla, 199 SCRA 495 [1991]). A suit may be dismissed if the
plaintiff or the defendant is not a real party in interest. X x x.
However, E.B. Marcha Transport Co., Inc. v. IAC (147 SCRA 276 [1987]) is cited as authority
that the Republic is the proper party to sue for the recovery of possession of property which

at the time of the installation of the suit was no longer held by the national government
body but by the Philippine Ports Authrotiy. In E.B. Marcha, the Court ruled:
It can be said that in suing for the recovery of the rentals, the Republic of the Philippines,
acted as principal of the Philippine Ports Authority, directly exercising the commission it had
earlier conferred on the latter as its agent. We may presume that, by doing so, the Republic
of the Philippines did not intend to retain the said rentals for its own use, considering that by
its voluntary act it had transferred the land in question to the Philippine Ports Authority
effective July 11, 1974. The Republic of the Philippines had simply sought to assist, not
supplant, the Philippine Ports Authority, whose title to the disputed property it continues to
recognize. We may expect the that the said rentals, once collected by the Republic of the
Philippines, shall be turned over by it to the Philippine Ports Authority conformably to the
purposes of P.D. No. 857.
E.B. Marcha is, however, not on all fours with the case at bar. In the former, the Court
considered the Republic a proper party to sue since the claims of the Republic and the
Philippine Ports Authority against the petitioner therein were the same. To dismiss the
complaint in E.B. Marcha would have brought needless delay in the settlement of the matter
since the PPA would have to refile the case on the same claim already litigated upon. Such
is not the case here since to allow the government to sue herein enables it to raise the issue
of imprescriptibility, a claim which is not available to the BCDA. The rule that prescription
does not run against the State does not apply to corporations or artificial bodies created by
the State for special purposes, it being said that when the title of the Republic has been
divested, its grantees, although artificial bodies of its own creation, are in the same category
as ordinary persons (Kingston v. LeHigh Valley Coal Co., 241 Pa 469). By raising the claim of
imprescriptibility, a claim which cannot be raised by the BCDA, the Government not only
assists the BCDA, as it did in E.B. Marcha, it even supplants the latter, a course of action
proscribed by said case.
Moreover, to recognize the Government as a proper party to sue in this case would set a bad
precedent as it would allow the Republic to prosecute, on behalf of government-owned or
controlled corporations, causes of action which have already prescribed, on the pretext that
the Government is the real party in interest against whom prescription does not run, said
corporations having been created merely as agents for the realization of government
programs.
It should also be noted that petitioner is unquestionably a buyer in good faith and for value,
having acquired the property in 1963, or 5 years after the issuance of the original certificate
of title, as a third transferee. If only not to do violence and to give some measure of respect
to the Torrens System, petitioner must be afforded some measure of protection. (Shipside
Incorporated v. Court of Appeals, 352 SCRA 334, Feb. 20, 2001, 3 rd Div. [Melo])
251. Discuss the nature and functions of the NTC, and analyze its powers and authority as
well as the laws, rules and regulations that govern its existence and operations.
Held: The NTC was created pursuant to Executive Order No. 546, promulgated on
July 23, 1979. It assumed the functions formerly assigned to the Board of Communications
and the Communications Control Bureau, which were both abolished under the said
Executive Order. Previously, the NTCs function were merely those of the defunct Public
Service Commission (PSC), created under Commonwealth Act No. 146, as amended,
otherwise known as the Public Service Act, considering that the Board of Communications
was the successor-in-interest of the PSC. Under Executive Order No. 125-A, issued in April

1987, the NTC became an attached agency of the Department of Transportation and
Communications.
In the regulatory communications industry, the NTC has the sole authority to issue
Certificates of Public Convenience and Necessity (CPCN) for the installation, operation, and
maintenance of communications facilities and services, radio communications systems,
telephone and telegraph systems. Such power includes the authority to determine the areas
of operations of applicants for telecommunications services. Specifically, Section 16 of the
Public Service Act authorizes the then PSC, upon notice and hearing, to issue Certificates of
Public Convenience for the operation of public services within the Philippines whenever the
Commission finds that the operation of the public service proposed and the authorization to
do business will promote the public interests in a proper and suitable manner.
(Commonwealth Act No. 146, Section 16[a]) The procedure governing the issuance of such
authorizations is set forth in Section 29 of the said Act x x x. (Republic v. Express
Telecommunication Co., Inc., 373 SCRA 316, Jan. 15, 2002, 1st Div. [YnaresSantiago])
252. Is the filing of the administrative rules and regulations with the UP Law Center the
operative act that gives the rules force and effect?
Held: In granting Bayantel the provisional authority to operate a CMTS, the NTC
applied Rule 15, Section 3 of its 1978 Rules of Practice and Procedure, which provides:
Sec. 3. Provisional Relief. Upon the filing of an application, complaint or petition or at any
stage thereafter, the Board may grant on motion of the pleader or on its own initiative, the
relief prayed for, based on the pleading, together with the affidavits and supporting
documents attached thereto, without prejudice to a final decision after completion of the
hearing which shall be called within thirty (30) days from grant of authority asked for. (italics
ours)
Respondent Extelcom, however, contends that the NTC should have applied the
Revised Rules which were filed with the Office of the National Administrative Register on
February 3, 1993. These Revised Rules deleted the phrase on its own initiative;
accordingly, a provisional authority may be issued only upon filing of the proper motion
before the Commission.
In answer to this argument, the NTC, through the Secretary of the Commission,
issued a certification to the effect that inasmuch as the 1993 Revised Rules have not been
published in a newspaper of general circulation, the NTC has been applying the 1978 Rules.
The absence of publication, coupled with the certification by the Commissioner of the
NTC stating that the NTC was still governed by the 1987 Rules, clearly indicate that the 1993
Revised Rules have not taken effect at the time of the grant of the provisional authority to
Bayantel. The fact that the 1993 Revised Rules were filed with the UP Law Center on
February 3, 1993 is of no moment. There is nothing in the Administrative Code of 1987

which implies that the filing of the rules with the UP Law Center is the operative act that
gives the rules force and effect. Book VII, Chapter 2, Section 3 thereof merely states:
Filing. (1) Every agency shall file with the University of the Philippines Law Center three (3)
certified copies of every rule adopted by it. Rules in force on the date of effectivity of this
Code which are not filed within three (3) months from the date shall not thereafter be the
basis of any sanction against any party or persons.
(2) The records officer of the agency, or his equivalent functionary, shall carry out the
requirements of this section under pain of disciplinary action.
(3) A permanent register of all rules shall be kept by the issuing agency and shall be open to
public inspection.
The National Administrative Register is merely a bulletin of codified rules and it is
furnished only to the Office of the President, Congress, all appellate courts, the National
Library, other public offices or agencies as the Congress may select, and to other persons at
a price sufficient to cover publication and mailing or distribution costs (Administrative Code
of 1987, Book VII, Chapter 2, Section 7). In a similar case, we held:
This does not imply, however, that the subject Administrative Order is a valid exercise of
such quasi-legislative power. The original Administrative Order issued on August 30, 1989,
under which the respondents filed their applications for importations, was not published in
the Official Gazette or in a newspaper of general circulation. The questioned Administrative
Order, legally, until it is published, is invalid within the context of Article 2 of Civil Code,
which reads:
Article 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette (or in a newspaper of general circulation in the
Philippines), unless it is otherwise provided. X x x
The fact that the amendments to Administrative Order No. SOCPEC 89-08-01 were filed with,
and published by the UP Law Center in the National Administrative Register, does not cure
the defect related to the effectivity of the Administrative Order.
This Court, in Tanada v. Tuvera (G.R. No. L-63915, December 29, 1986, 146 SCRA 446)
stated, thus:
We hold therefore that all statutes, including those of local application and private laws,
shall be published as a condition for their effectivity, which shall begin fifteen days after
publication unless a different effectivity is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the
President in the exercise of legislative power or, at present, directly conferred by the
Constitution. Administrative Rules and Regulations must also be published if their purpose is
to enforce or implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and not the public, need not be published. Neither is
publication required of the so-called letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates in the performance of
their duties.
Xxx
We agree that the publication must be in full or it is no publication at all since its purpose is
to inform the public of the contents of the laws.
The Administrative Order under consideration is one of those issuances which should be
published for its effectivity, since its purpose is to enforce and implement an existing law
pursuant to a valid delegation, i.e., P.D. 1071, in relation to LOI 444 and EO 133 (Philippine
International Trading Corp. v. Angeles, 263 SCRA 421, 446-447 [1996]).
Thus, publication in the Official Gazette or a newspaper of general circulation is a
condition sine qua non before statutes, rules or regulations can take effect. This is explicit
from Executive Order No. 200, which repealed Article 2 of the Civil Code, and which states
that:
Laws shall take effect after fifteen days following the completion of their publication either in
the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is
otherwise provided (E.O. 200, Section 1).
The Rules of Practice and Procedure of the NTC, which implements Section 29 of the
Public Service Act (C.A. 146, as amended), fall squarely within the scope of these laws, as
explicitly mentioned in the case of Tanada v. Tuvera (146 SCRA 446 [1986]).
Our pronouncement in Tanada v. Tuvera is clear and categorical. Administrative rules and
regulations must be published if their purpose is to enforce or implement existing law
pursuant to a valid delegation. The only exception are interpretative regulations, those
merely internal in nature, or those so-called letters of instructions issued by administrative
superiors concerning the rules and guidelines to be followed by their subordinates in the
performance of their duties (PHILSA International Placement & Services Corp. v. Secretary of
Labor, G.R. No. 103144, April 4, 2001, 356 SCRA 174).
Hence, the 1993 Revised Rules should be published in the Official Gazette or in a
newspaper of general circulation before it can take effect. Even the 1993 Revised Rules
itself mandates that said Rules shall take effect only after their publication in a newspaper of
general circulation (Section 20 thereof). In the absence of such publication, therefore, it is
the 1978 Rules that governs. (Republic v. Express Telecommunication Co., Inc., 373
SCRA 316, Jan. 15, 2002, 1st Div. [Ynares-Santiago])

253. May a person be held liable for violation of an administrative regulation which was
not published?
Held: Petitioner insists, however, that it cannot be held liable for illegal exaction as
POEA Memorandum Circular No. II, Series of 1983, which enumerated the allowable fees
which may be collected from applicants, is void for lack of publication.
There is merit in the argument.
In Tanada v. Tuvera (136 SCRA 27 [1985]), the Court held, as follows:
We hold therefore that all statutes, including those of local application and private laws,
shall be published as a condition for their effectivity, which shall begin fifteen days after
publication unless a different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the
President in the exercise of legislative powers whenever the same are validly delegated by
the legislature or, at present, directly conferred by the Constitution. Administrative rules
and regulations must also be published if their purpose is to enforce or implement existing
law pursuant to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and the public, need not be published. Neither is
publication required of the so-called letter of instructions issued by the administrative
superiors concerning the rules or guidelines to be followed by their subordinates in the
performance of their duties.
Applying this doctrine, we have previously declared as having no force and effect the
following administrative issuances: a) Rules and Regulations issued by the Joint Ministry of
Health-Ministry of Labor and Employment Accreditation Committee regarding the
accreditation of hospitals, medical clinics and laboratories (Joint Ministry of Health-Ministry
of Labor and Employment Accreditation Committee v. Court of Appeals, 196 SCRA 263
[1991]); b) Letter of Instruction No. 416 ordering the suspension of payments due and
payable by distressed copper mining companies to the national government (Caltex
Philippines, Inc. v. Court of Appeals, 208 SCRA 726 [1992]); c) Memorandum Circulars issued
by the POEA regulating the recruitment of domestic helpers to Hong Kong (Phil. Association
of Service Exporters v. Torres, 212 SCRA 298 [1992]); d) Administrative Order No. SOCPEC
89-08-01 issued by the Philippine International Trading Corporation regulating applications
for importation from the Peoples Republic of China (Philippine International Trading
Corporation v. Angeles, 263 SCRA 421 [1996]); and e) Corporate Compensation Circular No.
10 issued by the Department of Budget and Management discontinuing the payment of
other allowances and fringe benefits to government officials and employees (De Jesus v.
Commission on Audit, 294 SCRA 152 [1998). In all these cited cases, the administrative
issuances questioned therein were uniformly struck down as they were not published or filed
with the National Administrative Register as required by the Administrative Code of 1987
(Administrative Code of 1987, Book VII, chapter 2, Section 3).

POEA memorandum Circular No. 2, Series of 1983 must likewise be declared

ineffective as the same was never published or filed with the National Administrative
Register.
POEA Memorandum Circular No. 2, Series of 1983 provides for the applicable
schedule of placement and documentation fees for private employment agencies or
authority holders. Under the said Order, the maximum amount which may be collected from
prospective Filipino overseas workers is P2,500.00. The said circular was apparently issued
in compliance with the provisions of Article 32 of the Labor Code x x x.
It is thus clear that the administrative circular under consideration is one of those
issuances which should be published for its effectivity, since its purpose is to enforce and
implement an existing law pursuant to a valid delegation (Philippine International Trading
Corporation v. Angeles, supra.). Considering that POEA Administrative Circular No. 2, Series
of 1983 has not as yet been published or filed with the National Administrative Register, the
same is ineffective and may not be enforced. (Philsa International Placement and
Services Corporation v. Secretary of Labor and Employment, 356 SCRA 174, April
4, 2001, 3rd Div., [Gonzaga-Reyes])
254. Does the publication requirement apply as well to administrative regulations
addressed only to a specific group and not to the general public?
Held: The Office of the Solicitor General likewise argues that the questioned
administrative circular is not among those requiring publication contemplated by Tanada v.
Tuvera as it is addressed only to a specific group of persons and not to the general public.
Again, there is no merit in this argument.
The fact that the said circular is addressed only to a specified group, namely private
employment agencies or authority holders, does not take it away from the ambit of our
ruling in Tanada v. Tuvera. In the case of Phil. Association of Service Exporters v. Torres
((212 SCRA 298 [1992]), the administrative circulars questioned therein were addressed to
an even smaller group, namely Philippine and Hong Kong agencies engaged in the
recruitment of workers for Hong Kong, and still the Court ruled therein that, for lack of
proper publication, the said circulars may not be enforced or implemented.
Our pronouncement in Tanada v. Tuvera is clear and categorical. Administrative rules
and regulations must be published if their purpose is to enforce or implement existing law
pursuant to a valid delegation. The only exceptions are interpretative regulations, those
merely internal in nature, or those so-called letters of instructions issued by administrative
superiors concerning the rules and guidelines to be followed by their subordinates in the
performance of their duties. Administrative Circular No. 2, Series of 1983 has not been
shown to fall under any of these exceptions.

In this regard, the Solicitor Generals reliance on the case of Yaokasin v. Commissioner of
Customs (180 SCRA 599 [1989]) is misplaced. In the said case, the validity of certain
Customs Memorandum Orders were upheld despite their lack of publication as they were
addressed to a particular class of persons, the customs collectors, who were also the
subordinates of the Commissioner of the Bureau of Customs. As such, the said
Memorandum Orders clearly fall under one of the exceptions to the publication requirement,
namely those dealing with instructions from an administrative superior to a subordinate
regarding the performance of their duties, a circumstance which does not obtain in the case
at bench.
Xxx
To summarize, petitioner should be absolved from the three (3) counts of exaction as POEA
Administrative Circular No. 2, Series of 1983 could not be the basis of administrative
sanctions against petitioner for lack of publication. (Philsa International Placement and
Services Corporation v. Secretary of Labor and Employment, 356 SCRA 174, April
4, 2001, 3rd Div., [Gonzaga-Reyes])
255. May a successful bidder compel a government agency to formalize a contract with it
notwithstanding that its bid exceeds the amount appropriated by Congress for the project?
Held: Enshrined in the 1987 Philippine Constitution is the mandate that no money shall be
paid out of the Treasury except in pursuance of an appropriation made by law. (Sec. 29[1],
Article VI of the 1987 Constitution) Thus, in the execution of government contracts, the
precise import of this constitutional restriction is to require the various agencies to limit their
expenditures within the appropriations made by law for each fiscal year.
Xxx
It is quite evident from the tenor of the language of the law that the existence of
appropriations and the availability of funds are indispensable pre-requisites to or conditions
sine qua non for the execution of government contracts. The obvious intent is to impose
such conditions as a priori requisites to the validity of the proposed contract (Fernandez, A
Treatise on Government Contracts Under Philippine Law, 2001, pp. 40-41). Using this as our
premise, we cannot accede to PHOTOKINAs contention that there is already a perfected
contract. While we held in Metropolitan Manila Development Authority v. Jancom
Environmental Corporation (Supra) that the effect of an unqualified acceptance of the offer
or proposal of the bidder is to perfect a contract, upon notice of the award to the bidder,
however, such statement would be inconsequential in a government where the acceptance
referred to is yet to meet certain conditions. To hold otherwise is to allow a public officer to
execute a binding contract that would obligate the government in an amount in excess of
the appropriations for the purpose for which the contract was attempted to be made (64 Am
Jur 2d Sec. 11). This is a dangerous precedent.
In the case at bar, there seems to be an oversight of the legal requirements as early
as the bidding stage. The first step of a Bids and Awards Committee (BAC) is to determine

whether the bids comply with the requirements. The BAC shall rate a bid passed only if it
complies with all the requirements and the submitted price does not exceed the approved
budget for the contract. (Implementing Rules and Regulations [IRR] for Executive Order No.
262, supra.)
Extant on the record is the fact that the VRIS Project was awarded to PHOTOKINA on
account of its bid in the amount of P6.588 Billion Pesos. However, under Republic Act No.
8760 (General Appropriations Act, FY 2000, p. 1018, supra.), the only fund appropriated for
the project was P1 Billion Pesos and under the Certification of Available Funds (CAF) only
P1.2 Billion Pesos was available. Clearly, the amount appropriated is insufficient to cover the
cost of the entire VRIS Project. There is no way that the COMELEC could enter into a
contract with PHOTOKINA whose accepted bid was way beyond the amount appropriated by
law for the project. This being the case, the BAC should have rejected the bid for being
excessive or should have withdrawn the Notice of Award on the ground that in the eyes of
the law, the same is null and void.
Xxx
Even the draft contract submitted by Commissioner Sadain, that provides for a
contract price in the amount of P1.2 Billion Pesos is unacceptable. X x x While the contract
price under the draft contract is only P1.2 Billion and, thus, within the certified available
funds, the same covers only Phase I of the VRIS Project, i.e., the issuance of identification
cards for only 1,000,000 voters in specified areas (Ibid., p. 382). In effect, the
implementation of the VRIS Project will be segmented or chopped into several phases.
Not only is such arrangement disallowed by our budgetary laws and practices, it is also
disadvantageous to the COMELEC because of the uncertainty that will loom over its
modernization project for an indefinite period of time. Should Congress fail to appropriate
the amount necessary for the completion of the entire project, what good will the
accomplished Phase I serve? As expected, the project failed to sell with the Department of
Budget and Management. Thus, Secretary Benjamin Diokno, per his letter of December 1,
2000, declined the COMELECs request for the issuance of the Notice of Cash Availability
(NCA) and a multi-year obligatory authority to assume payment of the total VRIS Project for
lack of legal basis. Corollarily, under Section 33 of R.A. No. 8760, no agency shall enter into
a multi-year contract without a multi-year obligational authority, thus:
SECTION 33. Contracting Multi-Year Projects. - In the implementation of multi-year
projects, no agency shall enter into a multi-year contract without a multi-year Obligational
Authority issued by the Department of Budget and Management for the purpose.
Notwithstanding the issuance of the multi-year Obligational Authority, the obligation to be
incurred in any given calendar year, shall in no case exceed the amount programmed for
implementation during said calendar year.
Petitioners are justified in refusing to formalize the contract with PHOTOKINA. Prudence
dictated them not to enter into a contract not backed up by sufficient appropriation and
available funds. Definitely, to act otherwise would be a futile exercise for the contract would
inevitably suffer the vice of nullity. X x x

Xxx
Verily, the contract, as expressly declared by law, is inexistent and void ab initio
(Article 1409 of the Civil Code of the Philippines). This is to say that the proposed contract is
without force and effect from the very beginning or from its incipiency, as if it had never
been entered into, and hence, cannot be validated either by lapse of time or ratification
(Manila Lodge v. Court of Appeals, 73 SCRA 162 [1976]; See also Tongoy v. Court of Appeals,
123 SCRA 99 [1983]).
Xxx
In fine, we rule that PHOTOKINA, though the winning bidder, cannot compel the COMELEC to
formalize the contract. Since PHOTOKINAs bid is beyond the amount appropriated by
Congress for the VRIS Project, the proposed contract is not binding upon the COMELEC and is
considered void x x x. (Commission on Elections v. Judge Ma. Luisa Quijano-Padilla,
G.R. No. 151992, Sept. 18, 2002, En Banc [Sandoval-Gutierrez])
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 quasijudicial body. This view, however, has not heretofore been shared by this Court. In Carino v.
Commission on Human Rights (204 SCRA 483, 492), the Court x x x has observed that it is
only the first of the enumerated powers and functions that bears any resemblance to
adjudication of adjudgment, but that resemblance can in no way be synonymous to the
adjudicatory power itself. The Court explained:
x x x [T]he Commission on Human Rights x x x was not meant by the fundamental law to
be another court or quasi-judicial agency in this country, or duplicate much less take over
the functions of the latter.
The most that may be conceded to the Commission in the way of adjudicative power is that
it may investigate, i.e., receive evidence and make findings of fact as regards claimed
human rights violations involving civil and political rights.
But fact finding is not
adjudication, and cannot be likened to the judicial function of a court of justice, or even a
quasi-judicial agency or official. The function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a judicial function, properly speaking. To be
considered such, the faculty of receiving evidence and making factual conclusions in a
controversy must be accompanied by the authority of applying the law to those factual
conclusions to the end that the controversy may be decided or determined authoritatively,
finally and definitively, subject to such appeals or modes of review as may be provided by
law. This function, to repeat, the Commission does not have. (Simon, Jr. v. Commission
on Human Rights, 229 SCRA 117, 125, Jan. 5, 1994, En Banc [Vitug, J.])
258. Does the Commission on Human Rights have jurisdiction to issue TRO or writ of
preliminary injunction?
Held: In Export Processing Zone Authority v. Commission on Human rights (208
SCRA 125, 131), the Court x x x explained:
The constitutional provision directing the CHR to provide for preventive measures and legal
aid services to the underprivileged whose human rights have been violated or need
protection may not be construed to confer jurisdiction on the Commission to issue a
restraining order or writ of injunction for, if that were the intention, the Constitution would
have expressly said so. Jurisdiction is conferred only by the Constitution or by law. It is
never derived by implication.
Evidently, the preventive measures and legal aid services mentioned in the Constitution
refer to extrajudicial and judicial remedies (including a writ of preliminary injunction) which
the CHR may seek from the proper courts on behalf of the victims of human rights violations.
Not being a court of justice, the CHR itself has no jurisdiction to issue the writ, for a writ of
preliminary injunction may only be issued by the judge of any court in which the action is
pending [within his district], or by a Justice of the Court of Appeals, or of the Supreme Court.
x x x. A writ of preliminary injunction is an ancillary remedy. It is available only in a pending
principal action, for the preservation or protection of the rights and interest of a party
thereto, and for no other purpose.
The Commission does have legal standing to indorse, for appropriate action, its findings and
recommendations to any appropriate agency of government (See Export Processing Zone
Authority v. Commission on Human Rights, 208 SCRA 125). (Simon, Jr. v. Commission on
Human Rights, 229 SCRA 117, 134-135, Jan. 5, 1994, En Banc [Vitug, J.])

259. Discuss the contempt power of the Commission on Human Rights (CHR). When may
it be validly exercised?
Held: On its contempt powers, the CHR is constitutionally authorized to adopt its
operational guidelines and rules of procedure, and cite for contempt for violations thereof in
accordance with the Rules of Court. Accordingly, the CHR acted within its authority in
providing in its revised rules, its power to cite or hold any person in direct or indirect
contempt, and to impose the appropriate penalties in accordance with the procedure and
sanctions provided for in the Rules of Court. That power to cite for contempt, however,
should be understood to apply only to violations of its adopted operational guidelines and
rules of procedure essential to carry out its investigatorial powers. To exemplify, the power
to cite for contempt could be exercised against persons who refuse to cooperate with the
said body, or who unduly withhold relevant information, or who decline to honor summons,
and the like, in pursuing its investigative work. The order to desist (a semantic interplay
for a restraining order) in the instance before us, however, is not investigatorial in character
but prescinds from an adjudicative power that it does not possess. x x x (Simon, Jr. v.
Commission on Human Rights, 229 SCRA 117, 134, Jan. 5, 1994, En Banc [Vitug,
J.])

THE LAW OF PUBLIC OFFICERS

260.

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

Ans.: Positions in the Civil Service may be classified into: 1) Career Positions, and 2)
Non-Career Positions.
Career Positions are characterized by (1) entrance based on merit and fitness to be
determined as far as practicable by competitive examination, or based on highly technical
qualifications; (2) opportunity for advancement to higher career positions; and (3) security of
tenure (Sec. 7, Chap. 2, Subtitle A, Title I, Bk. V, E.O. No. 292).
The Non-Career Service shall be characterized by (1) entrance on bases other than of the
usual tests of merit or fitness utilized for the career service; and (2) tenure which is limited
to a period specified by law, or which is coterminous with that of the appointing authority or
subject to his pleasure, or which is limited to the duration of a particular project for which
purpose employment was made (Sec. 9, Chap. 2, Subtitle A, Title I, Bk. V, E.O. No.
292).

261.

Define Appointment. Discuss its nature.

Held: An appointment to a public office is the unequivocal act of designating or selecting

by one having the authority therefor of an individual to discharge and perform the duties
and functions of an office or trust. The appointment is deemed complete once the last act
required of the appointing authority has been complied with and its acceptance thereafter by
the appointee in order to render it effective. Appointment necessarily calls for an exercise of
discretion on the part of the appointing authority. In Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court (140 SCRA 22), reiterated in Flores v. Drilon (223 SCRA 568),
this Court has held:

The power to appoint is, in essence, discretionary. The appointing power has the right of
choice which he may exercise freely according to his judgment, deciding for himself who is
best qualified among those who have the necessary qualifications and eligibilities. It is a
prerogative of the appointing power x x x. (At p. 579)
Indeed, it may rightly be said that the right of choice is the heart of the power to appoint. In
the exercise of the power of appointment, discretion is an integral thereof. (Bermudez v.
Torres, 311 SCRA 733, Aug. 4, 1999, 3rd Div. [Vitug])
262. May the Civil Service Commission, or the Supreme Court, validly nullify an
appointment on the ground that somebody else is better qualified?
Held: The head of an agency who is the appointing power is the one most knowledgeable
to decide who can best perform the functions of the office. Appointment is an essentially
discretionary power and must be performed by the officer vested with such power according
to his best lights, the only condition being that the appointee should possess the
qualifications required by law. If he does, then the appointment cannot be faulted on the
ground that there are others better qualified who should have been preferred. Indeed, this
is a prerogative of the appointing authority which he alone can decide. The choice of an
appointee from among those who possess the required qualifications is a political and
administrative decision calling for considerations of wisdom, convenience, utility and the
interests of the service which can best be made by the head of the office concerned, the
person most familiar with the organizational structure and environmental circumstances
within which the appointee must function.
As long as the appointee is qualified the Civil Service Commission has no choice but to attest
to and respect the appointment even if it be proved that there are others with superior
credentials. The law limits the Commissions authority only to whether or not the appointees
possess the legal qualifications and the appropriate civil service eligibility, nothing else. If
they do then the appointments are approved because the Commission cannot exceed its
power by substituting its will for that of the appointing authority. Neither can we.
(Rimonte v. CSC, 244 SCRA 504-505, May 29, 1995, En Banc [Bellosillo, J.])
263. Does the next-in-rank rule import any mandatory or peremptory requirement that
the person next-in-rank must be appointed to the vacancy?
Held: The next-in-rank rule is not absolute; it only applies in cases of promotion, a process
which denotes a scalar ascent of an officer to another position higher either in rank or salary.
And even in promotions, it can be disregarded for sound reasons made known to the next-inrank, as the concept does not import any mandatory or peremptory requirement that the
person next-in-rank must be appointed to the vacancy. The appointing authority, under the
Civil Service Law, is allowed to fill vacancies by promotion, transfer of present employees,
reinstatement, reemployment, and appointment of outsiders who have appropriate civil
service eligibility, not necessarily in that order. There is no legal fiat that a vacancy must be
filled only by promotion; the appointing authority is given wide discretion to fill a vacancy
from among the several alternatives provided by law.
What the Civil Service Law provides is that if a vacancy is filled by promotion, the person
holding the position next in rank thereto shall be considered for promotion.
In Taduran v. Civil Service Commission (131 SCRA 66 [1984]), the Court construed that
phrase to mean that the person next-in-rank would be among the first to be considered for
the vacancy, if qualified. In Santiago, Jr. v. Civil Service Commission (178 SCRA 733
[1989]), the Court elaborated the import of the rule in the following manner:

One who is next-in-rank is entitled to preferential consideration for promotion to the higher
vacancy but it does not necessarily follow that he and no one else can be appointed. The
rule neither grants a vested right to the holder nor imposes a ministerial duty on the
appointing authority to promote such person to the next higher position x x x
(Abila v. CSC, 198 SCRA 102, June 3, 1991, En Banc [Feliciano])
263. Can a person who lacks the necessary qualifications for a public position be
appointed to it in a permanent capacity? Illustrative case.
Held: At the outset, it must be stressed that the position of Ministry Legal CounselCESO IV is embraced in the Career Executive Service. X x x
In the case at bar, there is no question that private respondent does not have the
required CES eligibility. As admitted by private respondent in his Comment, he is not a
CESO or a member of the Career Executive Service.
In the case of Achacoso v. Macaraig, et al. (195 SCRA 235, 239-240 [1991]), the Court
held:
It is settled that a permanent appointment can be issued only to a person who meets all
the requirements for the position to which he s being appointed, including the appropriate
eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be
regarded only as temporary. And being so, it could be withdrawn at will by the appointing
authority and at a moments notice, conformably to established jurisprudence.
The Court, having considered these submissions and the additional arguments of the parties
in the petitioners Reply and of the Solicitor-Generals Rejoinder, must find for the
respondents.
The mere fact that a position belongs to the Career Service does not automatically confer
security of tenure in its occupant even if he does not possess the required qualifications.
Such right will have to depend on the nature of his appointment, which in turn depends on
his eligibility or lack of it. A person who does not have the requisite qualifications for the
position cannot be appointed to it in the first place or, only as an exception to the rule, may
be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The
appointment extended to him cannot be regarded as permanent even if it may be so
designated.
Evidently, private respondents appointment did not attain permanency. Not having
taken the necessary Career Executive Service examination to obtain the requisite eligibility,
he did not at the time of his appointment and up to the present, possess the needed
eligibility for a position in the Career Executive Service. Consequently, his appointment as
Ministry Legal Counsel-CESO IV/Department Legal Counsel and/or Director III, was merely
temporary. Such being the case, he could be transferred or reassigned without violating the
constitutionally guaranteed right to security of tenure.

Private respondent capitalizes on his lack of CES eligibility by adamantly contending

that the mobility and flexibility concepts in the assignment of personnels under the Career
Executive Service do not apply to him because he s not a Career Executive Service Officer.
Obviously, the contention is without merit. As correctly pointed out by the Solicitor General,
non-eligibles holding permanent appointments to CES positions were never meant to remain
immobile in their status. Otherwise, their lack of eligibility would be a premium vesting
them with permanency in the CES positions, a privilege even their eligible counterparts do
not enjoy.
Then too, the cases on unconsented transfer invoked by private respondent find no
application in the present case. To reiterate, private respondents appointment is merely
temporary; hence, he could be transferred or reassigned to other positions without violating
his right to security of tenure. (De Leon v. Court of Appeals, 350 SCRA 1, Jan. 22,
2001, En Banc [Ynares-Santiago])
264. In the career executive service, is a career executive service (CES) eligibility all that
an employee needs to acquire security of tenure? Is appointment to a CES rank necessary
for the acquisition of such security of tenure?
Held: The petitions are impressed with merit.
In the career executive service, the acquisition of security of tenure which
presupposes a permanent appointment is governed by the rules and regulations
promulgated by the CES Board x x x.
As clearly set forth in the foregoing provisions, two requisites must concur in order that an
employee in the career executive service may attain security of tenure, to wit:
a
b

CES eligibility; and

Appointment to the appropriate CES rank.
In addition, it must be stressed that the security of tenure of employees in the career
executive service (except first and second level employees in the civil service), pertains only
to rank and not to the office or to the position to which they may be appointed. Thus, a
career executive service officer may be transferred or reassigned from one position to
another without losing his rank which follows him wherever he is transferred or reassigned.
In fact, a CESO suffers no diminution of salary even if assigned to a CES position with lower
salary grade, as he is compensated according to his CES rank and not on the basis of the
position or office he occupies.
In the case at bar, there is no question that respondent Ramon S. Roco, though a CES
eligible, does not possess the appropriate CES rank, which is CES rank level V, for the
position of Regional Director of the LTO (Region V). Falling short of one of the qualifications
that would complete his membership in the CES, respondent cannot successfully interpose
violation of security of tenure. Accordingly, he could be validly reassigned to other positions
in the career executive service. X x x

Moreover, under the mobility and flexibility principles of the Integrated Reorganization Plan,
CES personnel may be reassigned or transferred from one position to another x x x.
One last point. Respondent capitalizes on the fact that petitioner Luis Mario M. General is
not a CES eligible. The absence, however, of such CES eligibility is of no moment. As stated
in Part III, Chapter I, Article IV, paragraph 5(c), of the Integrated Reorganization Plan
x x x the President may, in exceptional cases, appoint any person who is not a Career
Executive Service eligible; provided that such appointee shall subsequently take the
required Career Executive Service examination and that he shall not be promoted to a
higher class until he qualified in such examination.
Evidently, the law allows appointment of those who are not CES eligible, subject to the
obtention of said eligibility, in the same manner that the appointment of respondent who
does not possess the required CES rank (CES rank level V) for the position of Regional
Director of the LTO, is permitted in a temporary capacity. (General v. Roco, 350 SCRA
528, Jan. 29, 2001, 1st Div. [Ynares-Santiago])
265. May an elective public official be validly appointed or designated to any public office
or position during his tenure?
Ans.: No elective official shall be eligible for appointment or designation in any
capacity to any public office or position during his tenure. (Sec. 7, 1st par., Art. IX-B,
1987 Constitution)
266.

May an appointive public official hold any other office or employment?

Ans.: Unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including government-owned or controlled
corporation. (Sec. 7, 2nd par., Art. IX-B, 1987 Constitution)
267. May the President, Vice-President, Members of the Cabinet, their deputies or
assistants hold any other office or employment?
Ans.: The President, Vice-President, the Members of the Cabinet, and their deputies
or assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. (Sec. 13, Art. VII, 1987 Constitution)
268. Does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as
Cabinet members, their deputies or assistants are concerned admit of the broad exceptions
made for appointive officials in general under Section 7, par. (2), Article IX-B?
Held: The threshold question therefore is: does the prohibition in Section 13, Article
VII of the 1987 Constitution insofar as Cabinet members, their deputies or assistants are
concerned admit of the broad exceptions made for appointive officials in general under
Section 7, par. (2), Article IX-B which, for easy reference is quoted anew, thus: Unless
otherwise allowed by law or by the primary functions of his position, no appointive official
shall hold any other office or employment in the government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporation or their
subsidiaries.

We rule in the negative.

Xxx
The practice of designating members of the Cabinet, their deputies and assistants as
members of the governing bodies or boards of various government agencies and
instrumentalities, including government-owned and controlled corporations, became
prevalent during the time legislative powers in this country were exercised by former
President Ferdinand E. Marcos pursuant to his martial law authority.
There was a
proliferation of newly-created agencies, instrumentalities and government-owned and
controlled corporations created by presidential decrees and other modes of presidential
issuances where Cabinet members, their deputies or assistants were designated to head or
sit as members of the board with the corresponding salaries, emoluments, per diems,
allowances and other perquisites of office. X x x
This practice of holding multiple offices or positions in the government soon led to
abuses by unscrupulous public officials who took advantage of this scheme for purposes of
self-enrichment. X x x
Particularly odious and revolting to the peoples sense of propriety and morality in
government service were the data contained therein that Roberto v. Ongpin was a member
of the governing boards of twenty-nine (29) governmental agencies, instrumentalities and
corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22);
Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each
(14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Rono of twelve (12)
each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and
Lilia Bautista and Teodoro Q. Pena of ten (10) each.
The blatant betrayal of public trust evolved into one of the serious causes of
discontent with the Marcos regime. It was therefore quite inevitable and in consonance with
the overwhelming sentiment of the people that the 1986 Constitutional Commission,
convened as it was after the people successfully unseated former President Marcos, should
draft into its proposed Constitution the provisions under consideration which are envisioned
to remedy, if not correct, the evils that flow from the holding of multiple governmental
offices and employment. X x x
But what is indeed significant is the fact that although Section 7, Article IX-B already
contains a blanket prohibition against the holding of multiple offices or employment in the
government subsuming both elective and appointive public officials, the Constitutional
Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically
prohibiting the President, Vice-President, members of the Cabinet, their deputies and
assistants from holding any other office or employment during their tenure, unless otherwise
provided in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the
constitutional provisions in question, the intent of the framers of the Constitution was to
impose a stricter prohibition on the President and his official family in so far as holding other
offices or employment in the government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with
other provisions of the Constitution on the disqualifications of certain public officials or
employees from holding other offices or employment. Under Section 13, Article VI, [N]o
Senator or Member of the House of Representatives may hold any other office or
employment in the Government x x x. Under section 5(4), Article XVI, [N]o member of the

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

when so authorized by the Constitution, but who as an elective public official under Sec. 7,
par. (1) of Article IX-B is absolutely ineligible for appointment or designation in any capacity
to any public office or position during his tenure. Surely, to say that the phrase unless
otherwise provided in this Constitution found in Section 13, Article VII has reference to
Section 7, par. (1) of Article IX-B would render meaningless the specific provisions of the
Constitution authorizing the Vice-President to become a member of the Cabinet (Sec. 3,
Ibid.), and to act as President without relinquishing the Vice-Presidency where the President
shall not have been chosen or fails to qualify (Sec. 7, Article VII). Such absurd consequence
can be avoided only by interpreting the two provisions under consideration as one, i.e.,
Section 7, par. (1) of Article IX-B providing the general rule and the other, i.e., Section 13,
Article VII as constituting the exception thereto. In the same manner must Section 7, par. (2)
of Article IX-B be construed vis--vis Section 13, Article VII.
Xxx
Since the evident purpose of the framers of the 1987 Constitution is to impose a
stricter prohibition on the President, Vice-President, members of the Cabinet, their deputies
and assistants with respect to holding multiple offices or employment in the government
during their tenure, the exception to this prohibition must be read with equal severity. On its
face, the language of Section 13, Article VII is prohibitory so that it must be understood as
intended to be a positive and unequivocal negation of the privilege of holding multiple
government offices and employment. Verily, wherever the language used in the constitution
is prohibitory, it is to be understood as intended to be a positive and unequivocal negation
(Varney v. Justice, 86 Ky 596; 6 S.W. 457; Hunt v. State, 22 Tex. App. 396, 3 S.W. 233). The
phrase unless otherwise provided in this Constitution must be given a literal interpretation
to refer only to those particular instances cited in the Constitution itself, to wit: the VicePresident being appointed as a member of the Cabinet under Section 3, par. (2), Article VII;
or acting as President in those instances provided under Section 7, pars. (2) and (3), Article
VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by
virtue of Section 8 (1), Article VIII.
Xxx
It being clear x x x that the 1987 Constitution seeks to prohibit the President, VicePresident, members of the Cabinet, their deputies or assistants from holding during their
tenure multiple offices or employment in the government, except in those cases specified in
the Constitution itself and as above clarified with respect to posts held without additional
compensation in an ex-officio capacity as provided by law and as required by the primary
functions of their office, the citation of Cabinet members (then called Ministers) as examples
during the debate and deliberation on the general rule laid down for all appointive officials
should be considered as mere personal opinions which cannot override the constitutions
manifest intent and the peoples understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to Section 7,
par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is
unconstitutional. Ostensibly restricting the number of positions that Cabinet members,
undersecretaries or assistant secretaries may hold in addition to their primary position to not
more than two (2) positions in the government and government corporations, Executive
Order No. 284 actually allows them to hold multiple offices or employment in direct
contravention of the express mandate of Section 13, Article VII of the 1987 Constitution
prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will result
from a strict application of the prohibition mandated under Section 13, Article VII on the
operations of the Government, considering that Cabinet members would be stripped of their

offices held in an ex-officio capacity, by reason of their primary positions or by virtue of

legislation. As earlier clarified in this decision, ex-officio posts held by the executive official
concerned without additional compensation as provided by law and as required by the
primary functions of his office do not fall under the definition of any other office within the
contemplation of the constitutional prohibition. With respect to other offices or employment
held by virtue of legislation, including chairmanships or directorships in government-owned
or controlled corporations and their subsidiaries, suffice it to say that the feared impractical
consequences are more apparent than real. Being head of an executive department is no
mean job. It is more than a full-time job, requiring full attention, specialized knowledge,
skills and expertise. If maximum benefits are to be derived from a department heads ability
and expertise, he should be allowed to attend to his duties and responsibilities without the
distraction of other governmental offices or employment. He should be precluded from
dissipating his efforts, attention and energy among too many positions and responsibility,
which may result in haphazardness and inefficiency. Surely the advantages to be derived
from this concentration of attention, knowledge and expertise, particularly at this stage of
our national and economic development, far outweigh the benefits, if any, that may be
gained from a department head spreading himself too thin and taking in more than what he
can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the Court hereby orders
respondents x x x to immediately relinquish their other offices or employment, as herein
defined, in the government, including government-owned or controlled corporations and
their subsidiaries. (Civil Liberties Union v. Executive Secretary, 194 SCRA 317, Feb.
22, 1991, En Banc [Fernan, CJ])
269. Does the prohibition against holding dual or multiple offices or employment under
Section 13, Article VII of the Constitution apply to posts occupied by the Executive officials
specified therein without additional compensation in an ex-officio capacity as provided by
law and as required by the primary functions of said officials office?
Held: The prohibition against holding dual or multiple offices or employment under
Section 13, Article VII of the Constitution must not, however, be construed as applying to
posts occupied by the Executive officials specified therein without additional compensation
in an ex-officio capacity as provided by law and as required (As opposed to the term
allowed used in Section 7, par. (2), Article IX-B of the Constitution, which is permissive.
Required suggests an imposition, and therefore, obligatory in nature) by the primary
functions of said officials office. The reason is that these posts do not comprise any other
office within the contemplation of the constitutional prohibition but are properly an
imposition of additional duties and functions on said officials (Martin v. Smith, 140 A.L.R.
1073; Ashmore v. Greater Greenville Sewer District, 173 A.L.R. 407). To characterize these
posts otherwise would lead to absurd consequences, among which are: The President of the
Philippines cannot chair the National Security Council reorganized under Executive Order No.
115 (December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the
Secretaries of National Defense, Justice, Labor and Employment and Local Government sit in
this Council, which would then have no reason to exist for lack of a chairperson and
members.
The respective undersecretaries and assistant secretaries, would also be
prohibited.
Xxx
Indeed, the framers of our Constitution could not have intended such absurd
consequences. A Constitution, viewed as a continuously operative charter of government, is
not to be interpreted as demanding the impossible or the impracticable; and unreasonable

or absurd consequences, if possible, should be avoided (Hirabayashi v. United States, 320

U.S. 81, 87 L. Ed. 1774, 63 S. Ct. 1375; others omitted).
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as
covering positions held without additional compensation in ex-officio capacities as provided
by law and as required by the primary functions of the concerned officials office. The term
ex-officio means from office; by virtue of office. It refers to an authority derived from
official character merely, not expressly conferred upon the individual character, but rather
annexed to the official position. Ex officio likewise denotes an act done in an official
character, or as a consequence of office, and without any other appointment or authority
than that conferred by the office. (Blacks Law Dictionary, p. 516; 15A Words and Phrases,
p. 392) An ex-officio member of a board is one who is a member by virtue of his title to a
certain office, and without further warrant or appointment (15A Words and Phrases, p. 392).
To illustrate, by express provision of law, the Secretary of Transportation and
Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority
(Sec. 7, E.O. 778), and the Light Rail Transit Authority (Sec. 1, E.O. 210).
The Court had occasion to explain the meaning of an ex-officio position in Rafael v.
Embroidery and Apparel Control and Inspection Board (21 SCRA 336 [1967]), thus: An
examination of Section 2 of the questioned statute (R.A. 3137) reveals that for the chairman
and members of the Board to qualify they need only be designated by the respective
department heads. With the exception of the representative from the private sector, they sit
ex-officio. I order to be designated they must already be holding positions in the offices
mentioned in the law. Thus, for instance, one who does not hold a previous appointment in
the Bureau of Customs, cannot, under the act, be designated a representative from that
office. The same is true with respect to the representatives from the other offices. No new
appointments are necessary. This is as it should be, because the representatives so
designated merely perform duties in the Board in addition to those already performed under
their original appointments. (Italics supplied)
The term primary used to describe functions refers to the order of importance
and thus means chief or principal function. The term is not restricted to the singular but
may refer to the plural (33A Words and Phrases, p. 210, citing Collector of Revenue v.
Louisiana Ready Mix Co., La. App., 197 S. 2d 141, 145). The additional duties must not only
be closely related to, but must be required by the officials primary functions. Examples of
designations to positions by virtue of ones primary functions are the Secretaries of Finance
and Budget sitting as members of the Monetary Board, and the Secretary of Transportation
and Communications acting as Chairman of the Maritime Industry Authority (Sec. 7, P.D. No.
474) and the Civil Aeronautics Board.
If the functions to be performed are merely incidental, remotely related, inconsistent,
incompatible, or otherwise alien to the primary function of a cabinet official, such additional
functions would fall under the purview of any other office prohibited by the Constitution.
An example would be the Press Undersecretary sitting as a member of the Board of the
Philippine Amusement and Gaming Corporation. The same rule applies to such positions
which confer on the cabinet official management functions and/or monetary compensation,
such as but not limited to chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries.
Mandating additional duties and functions to the President, Vice-President, Cabinet
Members, their deputies or assistants which are not inconsistent with those already
prescribed by their offices or appointments by virtue of their special knowledge, expertise
and skill in their respective executive offices is a practice long-recognized in many
jurisdictions. It is a practice justified by the demands of efficiency, policy direction,
continuity and coordination among the different offices in the Executive Branch in the

discharge of its multifarious tasks of executing and implementing laws affecting national
interest and general welfare and delivering basic services to the people. It is consistent with
the power vested on the President and his alter egos, the Cabinet members, to have control
of all the executive departments, bureaus and offices and to ensure that the laws are
faithfully executed (Section 17, Article VII). Without these additional duties and functions
being assigned to the President and his official family to sit in the governing bodies or
boards of governmental agencies or instrumentalities in an ex-officio capacity as provided
by law and as required by their primary functions, they would be deprived of the means for
control and supervision, thereby resulting in an unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties or functions may
not transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution,
such additional duties or functions must be required by the primary functions of the official
concerned, who is to perform the same in an ex-officio capacity as provided by law, without
receiving any additional compensation therefor.
The ex-officio position being actually and in legal contemplation part of the principal
office, it follows that the official concerned has no right to receive additional compensation
for his services in the said position. The reason is that these services are already paid for
and covered by the compensation attached to his principal office. It should be obvious that
if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio
member thereof, he is actually and in legal contemplation performing the primary function
of his principal office in defining policy in monetary and banking matters, which come under
the jurisdiction of his department. For such attendance, therefore, he is not entitled to
collect any extra compensation, whether it be in the form of a per diem or an honorarium or
an allowance, or some other such euphemism. By whatever name it is designated, such
additional compensation is prohibited by the Constitution. (Civil Liberties Union v.
Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ])
270. Should members of the Cabinet appointed to other positions in the government
pursuant to Executive Order No. 284 which later was declared unconstitutional by the SC for
being violative of Section 13, Article VII of the Constitution be made to reimburse the
government for whatever pay and emoluments they received from holding such other
positions?
Held:
During their tenure in the questioned positions, respondents may be
considered de facto officers and as such entitled to emoluments for actual services rendered
(Castillo v. Arrieta, G.R. No. L-31444, November 13, 1974, 61 SCRA 55). It has been held
that in cases where there is no de jure officer, a de facto officer, who, in good faith has had
possession of the office and has discharged the duties pertaining thereto, is legally entitled
to the emoluments of the office, and may in an appropriate action recover the salary, fees
and other compensations attached to the office. This doctrine is, undoubtedly, supported on
equitable grounds since it seems unjust that the public should benefit by the services of an
officer de facto and then be freed from all liability to pay any one for such services
(Patterson v. Benson, 112 Pac. 801, 32 L.R.A. [NS] 949). Any per diem, allowances or other
emoluments received by the respondents by virtue of actual services rendered in the
questioned positions may therefore be retained by them. (Civil Liberties Union v.
Executive Secretary, 194 SCRA 317, Feb. 22, 1991, En Banc [Fernan, CJ])
271.

May a Senator or Congressman hold any other office or employment?

Ans.: No Senator or Member of the House of Representatives may hold any other
office or employment in the government, or any subdivision, agency, or instrumentality
thereof, including government-owned or controlled corporations or their subsidiaries, during
his term without forfeiting his seat. Neither shall he be appointed to any office which may

have been created or the emoluments thereof increased during the term for which he was
elected (Sec. 13, Art. VI, 1987 Constitution). The first sentence is referred to as an
incompatible office; the second is a forbidden office.

272.
Petitioner claims that Benipayo has no authority to remove her as Director IV of the
EID and reassign her to the Law Department. Petitioner further argues that only the
COMELEC, acting as a collegial body, can authorize such reappointment. Moreover,
petitioner maintains that a reassignment without her consent amounts to removal from
office without due process and therefore illegal.
Held: Petitioners posturing will hold water if Benipayo does not possess any color of
title to the office of Chairman of the COMELEC. We have ruled, however, that Benipayo is
the de jure COMELEC Chairman, and consequently he has full authority to exercise all the
powers of that office for so long as his ad interim appointment remains effective. X x x. The
Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own
authority to transfer or reassign COMELEC personnel in accordance with the Civil Service
Law. In the exercise of this power, the Chairman is not required by law to secure the
approval of the COMELEC en banc.
Petitioners appointment papers x x x indisputably show that she held her Director IV
position in the EID only in an acting or temporary capacity. Petitioner is not a Career
Executive Service (CES), and neither does she hold Career Executive Service Eligibility,
which are necessary qualifications for holding the position of Director IV as prescribed in the
Qualifications Standards (Revised 1987) issued by the Civil Service Commission. Obviously,
petitioner does not enjoy security of tenure as Director IV. X x x
Xxx
Having been appointed merely in a temporary or acting capacity, and not possessed
of the necessary qualifications to hold the position of Director IV, petitioner has no legal
basis in claiming that her reassignment was contrary to the Civil Service Law. X x x
Still, petitioner assails her reassignment, carried out during the election period, as a
prohibited act under Section 261 (h) of the Omnibus Election Code x x x.
Xxx
Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to
effect transfers or reassignments of COMELEC personnel during the election period.
Moreover, petitioner insists that the COMELEC en banc must concur to every transfer or
reassignment of COMELEC personnel during the election period.
Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No.
3300 dated November 6, 2000, exempting the COMELEC from Section 261 (h) of the
Omnibus Election Code. X x x

Xxx
The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any
transfer or reassignment can be made within thirty days prior to election day, refers only to
COMELEC field personnel and not to head office personnel like the petitioner. Under the
Revised Administrative Code (see Section 7 [4], Chapter 2, Subtitle C, Book V of the Revised
Administrative Code), the COMELEC Chairman is the sole officer specifically vested with the
power to transfer or reassign COMELEC personnel. The COMELEC Chairman will logically
exercise the authority to transfer or reassign COMELEC personnel pursuant to COMELEC
Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power because
that will mean amending the Revised Administrative Code, an act the COMELEC en banc
cannot legally do.
COMELEC Resolution No. 3300 does not require that every transfer or reassignment of
COMELEC personnel should carry the concurrence of the COMELEC as a collegial body.
Interpreting Resolution No. 3300 to require such concurrence will render the resolution
meaningless since the COMELEC en banc will have to approve every personnel transfer or
reassignment, making the resolution utterly useless. Resolution No. 3300 should be
interpreted for what it is, an approval to effect transfers and reassignments of personnel,
without need of securing a second approval from the COMELEC en banc to actually
implement such transfer or reassignment.
The COMELEC Chairman is the official expressly authorized by law to transfer or reassign
COMELEC personnel. The person holding that office, in a de jure capacity, is Benipayo. The
COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment
of COMELEC personnel during the election period. Thus, Benipayos order reassigning
petitioner from the EID to the Law Department does not violate Section 261 (h) of the
Omnibus Election Code. For the same reason, Benipayos order designating Cinco Officer-inCharge of the EID is legally unassailable. (Matibag v. Benipayo, 380 SCRA 49, April 2,
2002, En Banc [Carpio])
273. May the appointment of a person assuming a position in the civil service under a
completed appointment be validly recalled or revoked?
Held: It has been held that upon the issuance of an appointment and the appointees
assumption of the position in the civil service, he acquires a legal right which cannot be
taken away either by revocation of the appointment or by removal except for cause and with
previous notice and hearing. (Mauna v. Civil Service Commission, 232 SCRA 388, 398
[1994]) Moreover, it is well-settled that the person assuming a position in the civil service
under a completed appointment acquires a legal, not just an equitable, right to the position.
This right is protected not only by statute, but by the Constitution as well, which right cannot
be taken away by either revocation of the appointment, or by removal, unless there is valid
cause to do so, provided that there is previous notice and hearing. (Aquino v. Civil Service
Commission, 208 SCRA 240, 248 [1992])
Petitioner admits that his very first official act upon assuming the position of town mayor
was to issue Office Order No. 95-01 which recalled the appointments of the private
respondents. There was no previous notice, much less a hearing accorded to the latter.

Clearly, it was petitioner who acted in undue haste to remove the private respondents
without regard for the simple requirements of due process of law. While he argues that the
appointing power has the sole authority to revoke said appointments, there is no debate that
he does not have blanket authority to do so. Neither can he question the CSCs jurisdiction
to affirm or revoke the recall.
Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative
Code specifically provides that an appointment accepted by the appointee cannot be
withdrawn or revoked by the appointing authority and shall remain in force and in effect until
disapproved by the Commission. Thus, it is the CSC that is authorized to recall an
appointment initially approved, but only when such appointment and approval are proven to
be in disregard of applicable provisions of the civil service law and regulations (Debulgado
v. Civil Service Commission, 237 SCRA 184, 200 [1994]).
Moreover, Section 10 of the same rule provides:
Sec. 10. An appointment issued in accordance with pertinent laws and rules shall take
effect immediately upon its issuance by the appointing authority, and if the appointee has
assumed the duties of the position, he shall be entitled to receive his salary at once without
awaiting the approval of his appointment by the Commission. The appointment shall remain
effective until disapproved by the Commission. In no case shall an appointment take effect
earlier than the date of its issuance.
Section 20 of Rule VI also provides:
Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled
on any of the following grounds:
a
b
c
d

Non-compliance with the procedures/criteria provided in the agencys Merit Promotion Plan;
Failure to pass through the agencys Selection/Promotion Board;
Violation of the existing collective agreement between management and employees relative
to promotion; or
Violation of other existing civil service law, rules and regulations.
Accordingly, the appointments of the private respondents may only be recalled on the
above-cited grounds. And yet, the only reason advanced by the petitioner to justify the
recall was that these were midnight appointments. The CSC correctly ruled, however, that
the constitutional prohibition on so-called midnight appointments, specifically those made
within two (2) months immediately prior to the next presidential elections, applies only to
the President or Acting President. (De Rama v. Court of Appeals, 353 SCRA 94, Feb.
28, 2001, En Banc [Ynares-Santiago])
274. The Philippine National Red Cross (PNRC) is a government-owned and controlled
corporation with an original charter under R.A. No. 95, as amended. Its charter, however,
was amended to vest in it the authority to secure loans, be exempted from payment of all
duties, taxes, fees and other charges, etc. With the amendment of its charter, has it been
impliedly converted to a private corporation?
Held: The test to determine whether a corporation is government owned or controlled, or
private in nature is simple. Is it created by its own charter for the exercise of a public
function, or by incorporation under the general corporation law? Those with special charters
are government corporations subject to its provisions, and its employees are under the
jurisdiction of the Civil Service Commission. The PNRC was not impliedly converted to a
private corporation simply because its charter was amended to vest in it the authority to

secure loans, be exempted from payment of all duties, taxes, fees and other charges, etc.
(Camporedondo v. NLRC, G.R. No. 129049, Aug. 6, 1999, 1 st Div. [Pardo])
275. What is a primarily confidential position? What is the test to determine whether a
position is primarily confidential or not?
Held: A primarily confidential position is one which denotes not only confidence in the
aptitude of the appointee for the duties of the office but primarily close intimacy which
ensures freedom from intercourse without embarrassment or freedom from misgivings or
betrayals of personal trust or confidential matters of state. (De los Santos v. Mallare, 87 Phil.
289 [1950])
Under the proximity rule, the occupant of a particular position could be considered a
confidential employee if the predominant reason why he was chosen by the appointing
authority was the latters belief that he can share a close intimate relationship with the
occupant which ensures freedom of discussion without fear or embarrassment or misgivings
of possible betrayal of personal trust or confidential matters of state. Withal, where the
position occupied is more remote from that of the appointing authority, the element of trust
between them is no longer predominant. (CSC v. Salas, 274 SCRA 414, June 19, 1997)
276. Does the Civil Service Law contemplate a review of decisions exonerating officers or
employees from administrative charges?
Held: By this ruling, we now expressly abandon and overrule extant jurisprudence that the
phrase party adversely affected by the decision refers to the government employee against
whom the administrative case is filed for the purpose of disciplinary action which may take
the form of suspension, demotion in rank or salary, transfer, removal or dismissal from
office and not included are cases where the penalty imposed is suspension for not more
than thirty (30) days or fine in an amount not exceeding thirty days salary (Paredes v. Civil
Service Commission, 192 SCRA 84, 85) or when respondent is exonerated of the charges,
there is no occasion for appeal. (Mendez v. Civil Service Commission, 204 SCRA 965, 968)
In other words, we overrule prior decisions holding that the Civil Service Law does not
contemplate a review of decisions exonerating officers or employees from administrative
charges enunciated in Paredes v. Civil Service Commission (192 SCRA 84); Mendez v. Civil
Service Commission (204 SCRA 965); Magpale v. Civil Service Commission (215 SCRA 398);
Navarro v. Civil Service Commission and Export Processing Zone Authority (226 SCRA 207)
and more recently Del Castillo v. Civil Service Commission (237 SCRA 184). (CSC v. Pedro
O. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc [Pardo])
277.

What is preventive suspension? Discuss its nature.

Held:
Imposed during the pendency of an administrative investigation, preventive
suspension is not a penalty in itself. It is merely a measure of precaution so that the
employee who is charged may be separated, for obvious reasons, from the scene of his
alleged misfeasance while the same is being investigated. Thus preventive suspension is
distinct from the administrative penalty of removal from office such as the one mentioned in
Sec. 8(d) of P.D. No. 807. While the former may be imposed on a respondent during the
investigation of the charges against him, the latter is the penalty which may only be meted
upon him at the termination of the investigation or the final disposition of the case. (Beja,
Sr. v. CA, 207 SCRA 689, March 31, 1992 [Romero])
278. Discuss the kinds of preventive suspension under the Civil Service Law. When may a
civil service employee placed under preventive suspension be entitled to compensation?

Held: There are two kinds of preventive suspension of civil service employees who are
charged with offenses punishable by removal or suspension: (1) preventive suspension
pending investigation (Sec. 51, Civil Service Law, EO No. 292) and (2) preventive suspension
pending appeal if the penalty imposed by the disciplining authority is suspension or
dismissal and, after review, the respondent is exonerated (Section 47, par. 4, Civil Service
Law, EO No. 292).
Preventive suspension pending investigation is not a penalty. It is a measure intended to
enable the disciplining authority to investigate charges against respondent by preventing
the latter from intimidating or in any way influencing witnesses against him. If the
investigation is not finished and a decision is not rendered within that period, the suspension
will be lifted and the respondent will automatically be reinstated. If after investigation
respondent is found innocent of the charges and is exonerated, he should be reinstated.
However, no compensation was due for the period of preventive suspension pending
investigation. The Civil Service Act of 1959 (R.A. No. 2260) providing for compensation in
such a case once the respondent was exonerated was revised in 1975 and the provision on
the payment of salaries during suspension was deleted.
But although it is held that employees who are preventively suspended pending
investigation are not entitled to the payment of their salaries even if they are exonerated,
they are entitled to compensation for the period of their suspension pending appeal if
eventually they are found innocent.
Preventive suspension pending investigation x x x is not a penalty but only a means of
enabling the disciplining authority to conduct an unhampered investigation. On the other
hand, preventive suspension pending appeal is actually punitive although it is in effect
subsequently considered illegal if respondent is exonerated and the administrative decision
finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of
the suspension. (Gloria v. CA, G.R. No. 131012, April 21, 1999, En Banc [Mendoza])
279. Discuss the power of Ombudsman to conduct administrative investigations, and to
impose preventive suspension.
Held: Worth stressing, to resolve the present controversy, we must recall that the authority
of the Ombudsman to conduct administrative investigations is mandated by no less than the
Constitution. x x x
R.A. 6770, the Ombudsman Law, further grants the Office of the Ombudsman the statutory
power to conduct administrative investigations. X x x
Section 21 of R.A. 6770 names the officials subject to the Ombudsmans disciplinary
authority x x x.
Petitioner is an elective local official accused of grave misconduct and dishonesty. That the
Office of the Ombudsman may conduct an administrative investigation into the acts
complained of, appears clear from the foregoing provisions of R.A. 6770.
However, the question of whether or not the Ombudsman may conduct an investigation over
a particular act or omission, is different from the question of whether or not petitioner, after
investigation, may be held administratively liable. This distinction ought here to be kept in
mind, even as we must also take note that the power to investigate is distinct from the
power to suspend preventively an erring public officer.

Likewise worthy of note, the power of the Office of the Ombudsman to preventively suspend
an official subject to its administrative investigation is provided by specific provision of law.
Xxx
We have previously interpreted the phrase under his authority to mean that the
Ombudsman can preventively suspend all officials under investigation by his office,
regardless of the branch of government in which they are employed (Buenaseda v. Flavier,
226 SCRA 645, 654 [1993]), excepting of course those removable by impeachment,
members of Congress and the Judiciary.
The power to preventively suspend is available not only to the Ombudsman but also to the
Deputy Ombudsman. This is the clear import of Section 24 of R.A. 6770 abovecited.
There can be no question in this case as to the power and authority of respondent Deputy
Ombudsman to issue an order of preventive suspension against an official like the petitioner,
to prevent that official from using his office to intimidate or influence witnesses (Gloria v. CA,
et al., G.R. No. 131012, April 21, 1999, p. 7, 306 SCRA 287) or to tamper with records that
might be vital to the prosecution of the case against him (Yasay, Jr. v. Desierto, et al., G.R.
No. 134495, December 28, 1998, p. 9, 300 SCRA 494). In our view, the present controversy
simply boils down to this pivotal question: Given the purpose of preventive suspension and
the circumstances of this case, did respondent Deputy Ombudsman commit a grave abuse
of discretion when he set the period of preventive suspension at six months?
Preventive suspension under Sec. 24, R.A. 6770 x x x may be imposed when, among other
factors, the evidence of guilt is strong. The period for which an official may be preventively
suspended must not exceed six months. In this case, petitioner was preventively suspended
and ordered to cease and desist from holding office for the entire period of six months,
which is the maximum provided by law.
The determination of whether or not the evidence of guilt is strong as to warrant preventive
suspension rests with the Ombudsman (Nera v. Garcia, 106 Phil. 1031 [1960]; others
omitted.). The discretion as regards the period of such suspension also necessarily belongs
to the Ombudsman, except that he cannot extend the period of suspension beyond that
provided by law (Castillo-Co v. Barbers, supra.). But, in our view, both the strength of the
evidence to warrant said suspension and the propriety of the length or period of suspension
imposed on petitioner are properly raised in this petition for certiorari and prohibition. X x x
Xxx
Given these findings, we cannot say now that there is no evidence sufficiently strong to
justify the imposition of preventive suspension against petitioner. But considering its
purpose and the circumstances in the case brought before us, it does appear to us that the
imposition of the maximum period of six months is unwarranted.
X x x [G]ranting that now the evidence against petitioner is already strong, even without
conceding that initially it was weak, it is clear to us that the maximum six-month period is
excessive and definitely longer than necessary for the Ombudsman to make its legitimate
case against petitioner. We must conclude that the period during which petitioner was
already preventively suspended, has been sufficient for the lawful purpose of preventing
petitioner from hiding and destroying needed documents, or harassing and preventing
witnesses who wish to appear against him. (Garcia v. Mojica, 314 SCRA 207, Sept. 10,
1999, 2nd Div. [Quisumbing])
280. Distinguish preventive suspension under
preventive suspension under the Ombudsman Act.

the

Local

Government

Code

from

Held: We reach the foregoing conclusion, however, without necessarily subscribing to

petitioners claim that the Local Government Code, which he averred should apply to this
case of an elective local official, has been violated. True, under said Code, preventive
suspension may only be imposed after the issues are joined, and only for a maximum period
of sixty days. Here, petitioner was suspended without having had the chance to refute first
the charges against him, and for the maximum period of six months provided by the
Ombudsman Law. But as respondents argue, administrative complaints commenced under
the Ombudsman Law are distinct from those initiated under the Local Government Code.
Respondents point out that the shorter period of suspension under the Local Government
Code is intended to limit the period of suspension that may be imposed by a mayor, a
governor, or the President, who may be motivated by partisan political considerations. In
contrast the Ombudsman, who can impose a longer period of preventive suspension, is not
likely to be similarly motivated because it is a constitutional body. The distinction is valid
but not decisive, in our view, of whether there has been grave abuse of discretion in a
specific case of preventive suspension.
Xxx
Respondents may be correct in pointing out the reason for the shorter period of
preventive suspension imposable under the Local Government Code. Political color could
taint the exercise of the power to suspend local officials by the mayor, governor, or
Presidents office. In contrast the Ombudsman, considering the constitutional origin of his
Office, always ought to be insulated from the vagaries of politics, as respondents would have
us believe.
In Hagad v. Gozo-Dadole (251 SCRA 242 [1995]), on the matter of whether or not the
Ombudsman has been stripped of his power to investigate local elective officials by virtue of
the Local Government Code, we said:
Indeed, there is nothing in the Local Government Code to indicate that it has repealed,
whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two
statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as
to compel us to only uphold one and strike down the other. (Hagad v. Gozo-Dadole,
supra, 251-252)
It was also argued in Hagad, that the six-month preventive suspension under the
Ombudsman Law is much too repugnant to the 60-day period that may be imposed under
the Local Government Code. But per J. Vitug, the two provisions govern differently. (Id.,
at 253-254)
However, petitioner now contends that Hagad did not settle the question of whether
a local elective official may be preventively suspended even before the issues could be
joined. Indeed it did not, but we have held in other cases that there could be preventive
suspension even before the charges against the official are heard, or before the official is
given an opportunity to prove his innocence (supra at note 14, excluding the case of
Buenaseda v. Flavier).
Preventive suspension is merely a preliminary step in an
administrative investigation and is not in any way the final determination of the guilt of the
official concerned.
Petitioner also avers that the suspension order against him was issued in violation of
Section 26[2] of the Ombudsman Law x x x.
Petitioner argues that before an inquiry may be converted into a full-blown
administrative investigation, the official concerned must be given 72 hours to answer the

charges against him. In his case, petitioner says the inquiry was converted into an
administrative investigation without him being given the required number of hours to
answer.
Indeed, it does not appear that petitioner was given the requisite 72 hours to submit
a written answer to the complaint against him. This, however, does not make invalid the
preventive suspension order issued against him. As we have earlier stated, a preventive
suspension order may be issued even before the charges against the official concerned is
heard.
Moreover, respondents state that petitioner was given 10 days to submit his counteraffidavit to the complaint filed by respondent Tagaan. We find this 10-day period is in
keeping with Section 5[a] of the Rules of Procedure of the Office of the Ombudsman x x x.
(Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2nd Div. [Quisumbing])
281. Does Section 13, Republic Act No. 3019 exclude from its coverage the members of
Congress and, therefore, the Sandiganbayan erred in decreeing the preventive suspension
order against Senator Miriam Defensor-Santiago? Will the order of suspension prescribed by
Republic Act No. 3019 not encroach on the power of Congress to discipline its own ranks
under the Constitution?
Held: The petition assails the authority of the Sandiganbayan to decree a ninety-day
preventive suspension of Mme. Miriam Defensor-Santiago, a Senator of the Republic of the
Philippines, from any government position, and furnishing a copy thereof to the Senate of
the Philippines for the implementation of the suspension order.
The authority of the Sandiganbayan to order the preventive suspension of an
incumbent public official charged with violation of the provisions of Republic Act No. 3019
has both legal and jurisprudential support. X x x
In the relatively recent case of Segovia v. Sandiganbayan (288 SCRA 328 [1998]), the
Court reiterated:
The validity of Section 13, R.A. 3019, as amended treating of the suspension pendente
lite of an accused public officer may no longer be put at issue, having been repeatedly
upheld by this Court.
X x x
The provision of suspension pendente lite applies to all persons indicted upon a valid
information under the Act, whether they be appointive or elective officials; or permanent or
temporary employees, or pertaining to the career or non-career service. (At pp. 336-337)
It would appear, indeed, to be a ministerial duty of the court to issue an order of
suspension upon determination of the validity of the information filed before it. Once the
information is found to be sufficient in form and substance, the court is bound to issue an
order of suspension as a matter of course, and there seems to be no ifs and buts about it.
(Libanan v. Sandiganbayan, 163 SCRA 163 [1988]) Explaining the nature of the preventive

suspension, the Court in the case of Bayot v. Sandiganbayan (128 SCRA 383 [1984])
observed:
x x x It is not a penalty because it is not imposed as a result of judicial proceedings. In fact,
if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and
benefits which he failed to receive during suspension. (At p. 386)
In issuing the preventive suspension of petitioner, the Sandiganbayan merely
adhered to the clear and unequivocal mandate of the law, as well as the jurisprudence in
which the Court has, more than once, upheld Sandiganbayans authority to decree the
suspension of public officials and employees indicted before it.
Section 13 of Republic Act No. 3019 does not state that the public officer concerned
must be suspended only in the office where he is alleged to have committed the acts with
which he has been charged. Thus, it has been held that the use of the word office would
indicate that it applies to any office which the officer charged may be holding, and not only
the particular office under which he stands accused. (Bayot v. Sandiganbayan, supra;
Segovia v. Sandiganbayan, supra.)
En passant, while the imposition of suspension is not automatic or self-operative as
the validity of the information must be determined in a pre-suspension hearing, there is no
hard and fast rule as to the conduct thereof. It has been said that
x x x No specific rules need be laid down for such pre-suspension hearing. Suffice it to
state that the accused should be given a fair and adequate opportunity to challenge the
VALIDITY OF THE CRIMINAL PROCEEDINGS against him, e.g., that he has not been afforded
the right of due preliminary investigation; that the acts for which he stands charged do not
constitute a violation of the provisions of Republic Act 3019 or the bribery provisions of the
Revised Penal Code which would warrant his mandatory suspension from office under
Section 13 of the Act; or he may present a motion to quash the information on any of the
grounds provided for in Rule 117 of the Rules of Court x x x.
x x x
Likewise, he is accorded the right to challenge the propriety of his prosecution on the
ground that the acts for which he is charged do not constitute a violation of Rep. Act 3019,
or of the provisions on bribery of the Revised Penal Code, and the right to present a motion
to quash the information on any other grounds provided in Rule 117 of the Rules of Court.
However, a challenge to the validity of the criminal proceedings on the ground that the acts
for which the accused is charged do not constitute a violation of the provisions of Rep. Act
No. 3019, or of the provisions on bribery of the Revised Penal Code, should be treated only in
the same manner as a challenge to the criminal proceeding by way of a motion to quash on
the ground provided in Paragraph (a), Section 2 of Rule 117 of the Rules of Court, i.e., that
the facts charged do not constitute an offense. In other words, a resolution of the challenge
to the validity of the criminal proceeding, on such ground, should be limited to an inquiry

whether the facts alleged in the information, if hypothetically admitted, constitute the
elements of an offense punishable under Rep. Act 3019 or the provisions on bribery of the
Revised Penal Code. (Luciano v. Mariano, 40 SCRA 187 [1971]; People v. Albano, 163 SCRA
511, 517-519 [1988])
The law does not require that the guilt of the accused must be established in a presuspension proceeding before trial on the merits proceeds. Neither does it contemplate a
proceeding to determine (1) the strength of the evidence of culpability against him, (2) the
gravity of the offense charged, or (3) whether or not his continuance in office could influence
the witnesses or pose a threat to the safety and integrity of the records and other evidence
before the court could have a valid basis in decreeing preventive suspension pending the
trial of the case. All it secures to the accused is adequate opportunity to challenge the
validity or regularity of the proceedings against him, such as, that he has not been afforded
the right to due preliminary investigation, that the acts imputed to him do not constitute a
specific crime warranting his mandatory suspension from office under Section 13 of Republic
Act No. 3019, or that the information is subject to quashal on any of the grounds set out in
Section 3, Rule 117, of the Revised Rules on Criminal Procedure (Segovia v. Sandiganbayan,
supra; Resolution of the Supreme Court in A.M. No. 00-05-03-SC, dated 03 October 2000,
which became effective on 01 December 2000)
Xxx
The pronouncement, upholding the validity of the information filed against petitioner,
behooved Sandiganbayan to discharge its mandated duty to forthwith issue the order of
preventive suspension.
The order of suspension prescribed by Republic Act No. 3019 is distinct from the
power of Congress to discipline its own ranks under the Constitution which provides that
each
x x x house may determine the rules of its proceedings, punish its Members for disorderly
behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a
Member. A penalty of suspension, when imposed, shall not exceed sixty days. (Section
16[3], Article VI, 1987 Constitution)
The suspension contemplated in the above constitutional provision is a punitive
measure that is imposed upon determination by the Senate or the House of Representatives,
as the case may be, upon an erring member. Thus, in its resolution in the case of Ceferino
Paredes, Jr. v. Sandiganbayan, et al. (G.R. No. 118364, 08 August 1995), the Court affirmed
the order of suspension of Congressman Paredes by the Sandiganbayan, despite his
protestations on the encroachment by the court on the prerogatives of Congress. The Court
ruled:
x x x. Petitioners invocation of Section 16 (3), Article VI of the Constitution which deals
with the power of each House of Congress inter alia to punish its Members for disorderly
behavior, and suspend or expel a Member by a vote of two-thirds of all its Members

subject to the qualification that the penalty of suspension, when imposed, should not exceed
sixty days in unavailing, as it appears to be quite distinct from the suspension spoken of in
Section 13 of RA 3019, which is not a penalty but a preliminary, preventive measure,
prescinding from the fact that the latter is not being imposed on petitioner for misbehavior
as a Member of the House of Representatives.
The doctrine of separation of powers by itself may not be deemed to have effectively
excluded Members of Congress from Republic Act No. 3019 nor from its sanctions. The
maxim simply recognizes each of the three co-equal and independent, albeit coordinate,
branches of the government the Legislative, the Executive and the Judiciary has exclusive
prerogatives and cognizance within its own sphere of influence and effectively prevents one
branch from unduly intruding into the internal affairs of either branch.
Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the 1987
Constitution, empowers the Court to act not only in the settlement of actual controversies
involving rights which are legally demandable and enforceable, but also in the
determination of whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
government. The provision allowing the Court to look into any possible grave abuse of
discretion committed by any government instrumentality has evidently been couched in
general terms in order to make it malleable to judicial interpretation in the light of any
emerging milieu. In its normal concept, the term has been said to imply an arbitrary,
despotic, capricious or whimsical exercise of judgment amounting to lack or excess of
jurisdiction. When the question, however, pertains to an affair internal to either of Congress
or the Executive, the Court subscribes to the view that unless an infringement of any
specific Constitutional proscription thereby inheres the Court should not deign substitute its
own judgment over that of any of the other two branches of government. It is an
impairment or a clear disregard of a specific constitutional precept or provision that can
unbolt the steel door for judicial intervention. If any part of the Constitution is not, or ceases
to be, responsive to contemporary needs, it is the people, not the Court, who must promptly
react in the manner prescribed by the Charter itself.
Republic Act No. 3019 does not exclude from its coverage the members of Congress and
that, therefore, the Sandiganbayan did not err in thus decreeing the assailed preventive
suspension order.
Attention might be called to the fact that Criminal Case No. 16698 has been decided by the
First Division of the Sandiganbayan on 06 December 1999, acquitting herein petitioner. The
Court, nevertheless, deems it appropriate to render this decision for future guidance on the
significant issue raised by petitioner. (Santiago v. Sandiganbayan, 356 SCRA 636,
April 18, 2001, En Banc [Vitug])

282. What is the doctrine of forgiveness or condonation?

criminal cases?

Does it apply to pending

Held: 1. A public official cannot be removed for administrative misconduct committed

during a prior term, since his re-election to office operates as a condonation of the officers
previous misconduct to the extent of cutting off the right to remove him therefor. The
foregoing rule, however, finds no application to criminal cases pending against petitioner.
(Aguinaldo v. Santos, 212 SCRA 768, 773 [1992])
2. A reelected local official may not be held administratively accountable for misconduct
committed during his prior term of office. The rationale for this holding is that when the
electorate put him back into office, it is presumed that it did so with full knowledge of his life
and character, including his past misconduct. If, armed with such knowledge, it still reelects
him, then such reelection is considered a condonation of his past misdeeds. (Mayor Alvin
B. Garcia v. Hon. Arturo C. Mojica, et al., G.R. No. 139043, Sept. 10, 1999
[Quisumbing])
283.

What is the Doctrine of Condonation? Illustrative case.

Held: Petitioner contends that, per our ruling in Aguinaldo v. Santos (212 SCRA 768
[1992]), his reelection has rendered the administrative case filed against him moot and
academic. This is because his reelection operates as a condonation by the electorate of the
misconduct committed by an elective official during his previous term. Petitioner further
cites the ruling of this Court in Pascual v. Hon. Provincial Board of Nueva Ecija (106 Phil. 466,
472 [1959], citing Conant v. Brogan, 6 N.Y.S.R. 332 [1887], cited in 17 A.L.R. 281, 63, So.
559, 50 LRA [NS] 553), that
x x x When the people have elected a man to office, it must be assumed that they did this
with knowledge of his life and character, and that they disregarded or forgave his faults or
misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or
misconduct to practically overrule the will of the people.
Respondents, on the other hand, contend that while the contract in question was signed
during the previous term of petitioner, it was to commence or be effective only on
September 1998 or during his current term. It is the respondents submission that petitioner
went beyond the protective confines of jurisprudence when he agreed to extend his act to
his current term of office. Aguinaldo cannot apply, according to respondents, because what
is involved in this case is a misconduct committed during a previous term but to be effective
during the current term.
Respondents maintain that,
x x x petitioner performed two acts with respect to the contract: he provided for a
suspensive period making the supply contract commence or be effective during his
succeeding or current term and during his current term of office he acceded to the
suspensive period making the contract effective during his current term by causing the
implementation of the contract.
Hence, petitioner cannot take refuge in the fact of his reelection, according to
respondents.
Further, respondents point out that the contract in question was signed just four days
before the date of the 1998 election and so it could not be presumed that when the people
of Cebu City voted petitioner to office, they did so with full knowledge of petitioners
character.

On this point, petitioner responds that knowledge of an officials previous acts is

presumed and the court need not inquire whether, in reelecting him, the electorate was
actually aware of his prior misdeeds.
Petitioner cites our ruling in Salalima v. Guingona (257 SCRA 55 [1996]), wherein we
absolved Albay governor Ramon R. Salalima of his administrative liability as regards a
retainer agreement he signed in favor of a law firm during his previous term, although
disbursements of public funds to cover payments under the agreement were still being done
during his subsequent term. Petitioner argues that, following Salalima, the doctrine of
Aguinaldo applies even where the effects of the acts complained of are still evident during
the subsequent term of the reelected official. The implementation of the contract is a mere
incident of its execution. Besides, according to petitioner, the sole act for which he has
been administratively charged is the signing of the contract with F.E. Zuellig. The charge, in
his view, excludes the contracts execution or implementation, or any act subsequent to the
perfection of the contract.
In Salalima, we recall that the Solicitor General maintained that Aguinaldo did not
apply to that case because the administrative case against Governor Rodolfo Aguinaldo of
Cagayan was already pending when he filed his certificate of candidacy for his reelection
bid. Nevertheless, in Salalima, the Court applied the Aguinaldo doctrine, even if the
administrative case against Governor Salalima was filed after his reelection.
Xxx
We now come to the concluding inquiry. Granting that the Office of the Ombudsman
may investigate, for purposes provided for by law, the acts of petitioner committed prior to
his present term of office; and that it may preventively suspend him for a reasonable period,
can that office hold him administratively liable for said acts?
In a number of cases, we have repeatedly held that a reelected local official may not
be held administratively accountable for misconduct committed during his prior term of
office (Pascual v. Hon. Provincial Board of Nueva Ecija, 106 Phil. 466 [1959]; others omitted).
The rationale for this holding is that when the electorate put him back into office, it is
resumed that it did so with full knowledge of his life and character, including his past
misconduct. If, armed with such knowledge, it still reelects him, then such reelection is
considered a condonation of his past misdeeds.
However, in the present case, respondents point out that the contract entered into by
petitioner with F.E. Zuellig was signed just four days before the date of the elections. It was
not made an issue during the election, and so the electorate could not be said to have voted
for petitioner with knowledge of this particular aspect of his life and character.
For his part, petitioner contends that the only conclusive determining factor as
regards the peoples thinking on the matter is an election. On this point we agree with
petitioner. That the people voted for an official with knowledge of his character is presumed,
precisely to eliminate the need to determine, in factual terms, the extent of this knowledge.
Such an undertaking will obviously be impossible. Our rulings on the matter do not
distinguish the precise timing or period when the misconduct was committed, reckoned from
the date of the officials reelection, except that it must be prior to said date.
As held in Salalima,
The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are concerned,
is still a good law. Such a rule is not only founded on the theory that an officials reelection
expresses the sovereign will of the electorate to forgive or condone any act or omission

constituting a ground for administrative discipline which was committed during his previous
term. We may add that sound policy dictates it. To rule otherwise would open the
floodgates to exacerbating endless partisan contests between the reelected official and his
political enemies, who may not stop to hound the former during his new term with
administrative cases for acts alleged to have been committed during his previous term. His
second term may thus be devoted to defending himself in the said cases to the detriment of
public service x x x. (Emphasis added.) (Salalima v. Guingona, supra at 115)
The above ruling in Salalima applies to this case. Petitioner cannot anymore be held
administratively liable for an act done during his previous term, that is, his signing of the
contract with F.E. Zuellig.
The assailed retainer agreement in Salalima was executed sometime in 1990.
Governor Salalima was reelected in 1992 and payments for the retainer continued to be
made during his succeeding term. This situation is no different from the one in the present
case, wherein deliveries of the asphalt under the contract with F.E. Zuellig and the payments
therefor were supposed to have commenced on September 1998, during petitioners second
term.
However, respondents argue that the contract, although signed on May 7, 1998,
during petitioners prior term, is to be made effective only during his present term.
We fail to see any difference to justify a valid distinction in the result. The agreement
between petitioner (representing Cebu City) and F.E. Zuellig was perfected on the date the
contract was signed, during petitioners prior term. At that moment, petitioner already
acceded to the terms of the contract, including stipulations now alleged to be prejudicial to
the city government. Thus, any culpability petitioner may have in signing the contract
already became extant on the day the contract was signed. It hardly matters that the
deliveries under the contract are supposed to have been made months later.
While petitioner can no longer be held administratively liable for signing the contract
with F.E. Zuellig, however, this should not prejudice the filing of any case other than
administrative against petitioner. Our ruling in this case, may not be taken to mean the total
exoneration of petitioner for whatever wrongdoing, if any, might have been committed in
signing the subject contract. The ruling now is limited to the question of whether or not he
may be held administratively liable therefor, and it is our considered view that he may not.
(Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2nd Div. [Quisumbing])
284.

What are the situations covered by the law on nepotism?

Held: Under the definition of nepotism, one is guilty of nepotism if an appointment is issued
in favor of a relative within the third civil degree of consanguinity or affinity of any of the
following:
a)
b)
c)
d)

appointing authority;
recommending authority;
chief of the bureau or office; and
person exercising immediate supervision over the appointee.
Clearly, there are four situations covered. In the last two mentioned situations, it is
immaterial who the appointing or recommending authority is. To constitute a violation of the
law, it suffices that an appointment is extended or issued in favor of a relative within the
third civil degree of consanguinity or affinity of the chief of the bureau or office, or the
person exercising immediate supervision over the appointee. (CSC v. Pedro O. Dacoycoy,
G.R. No. 135805, April 29, 1999, En Banc [Pardo])

285.

What are the exemptions from the operation of the rules on nepotism?

Ans.: The following are exempted from the operation of the rules on nepotism: (a) persons
employed in a confidential capacity, (b) teachers, (c) physicians, and (d) members of the
Armed Forces of the Philippines.
The rules on nepotism shall likewise not be applicable to the case of a member of any
family who, after his or her appointment to any position in an office or bureau, contracts
marriage with someone in the same office or bureau, in which event the employment or
retention therein of both husband and wife may be allowed. (Sec. 59, Chap. 7, Subtitle A,
Title I, Bk. V, E.O. No. 292)
286.

Distinguish term of office from tenure of the incumbent.

Held: In the law of public officers, there is a settled distinction between term and
tenure. [T]he term of an office must be distinguished from the tenure of the incumbent.
The term means the time during which the officer may claim to hold office as of right, and
fixes the interval after which the several incumbents shall succeed one another. The tenure
represents the term during which the incumbent actually holds the office. The term of office
is not affected by the hold-over. The tenure may be shorter than the term for reasons within
or beyond the power of the incumbent. (Thelma P. Gaminde v. COA, G.R. No. 140335,
Dec. 13, 2000, En Banc [Pardo])
287. Discuss the operation of the rotational plan insofar as the term of office of the
Chairman and Members of the Constitutional Commissions is concerned.
Held: In Republic v. Imperial (96 Phil. 770 [1955]), we said that the operation of the
rotational plan requires two conditions, both indispensable to its workability: (1) that the
terms of the first three (3) Commissioners should start on a common date, and (2) that any
vacancy due to death, resignation or disability before the expiration of the term should only
be filled only for the unexpired balance of the term.
Consequently, the terms of the first Chairmen and Commissioners of the Constitutional
Commissions under the 1987 Constitution must start on a common date, irrespective of the
variations in the dates of appointments and qualifications of the appointees, in order that
the expiration of the first terms of seven, five and three years should lead to the regular
recurrence of the two-year interval between the expiration of the terms.
Applying the foregoing conditions x x x, we rule that the appropriate starting point of the
terms of office of the first appointees to the Constitutional Commissions under the 1987
Constitution must be on February 2, 1987, the date of the adoption of the 1987 Constitution.
In case of a belated appointment or qualification, the interval between the start of the term
and the actual qualification of the appointee must be counted against the latter. (Thelma
P. Gaminde v. COA, G.R. No. 140335, Dec. 13, 2000, En Banc [Pardo])
288.

What is the hold-over doctrine? What is its purpose?

Held: 1. The concept of holdover when applied to a public officer implies that the office
has a fixed term and the incumbent is holding onto the succeeding term. It is usually
provided by law that officers elected or appointed for a fixed term shall remain in office not
only for that term but until their successors have been elected and qualified. Where this
provision is found, the office does not become vacant upon the expiration of the term if
there is no successor elected and qualified to assume it, but the present incumbent will

carry over until his successor is elected and qualified, even though it be beyond the term
fixed by law.
Absent an express or implied constitutional or statutory provision to the contrary, an officer
is entitled to stay in office until his successor is appointed or chosen and has qualified. The
legislative intent of not allowing holdover must be clearly expressed or at least implied in
the legislative enactment, otherwise it is reasonable to assume that the law-making body
favors the same.
Indeed, the law abhors a vacuum in public offices, and courts generally indulge in the strong
presumption against a legislative intent to create, by statute, a condition which may result in
an executive or administrative office becoming, for any period of time, wholly vacant or
unoccupied by one lawfully authorized to exercise its functions. This is founded on obvious
considerations of public policy, for the principle of holdover is specifically intended to
prevent public convenience from suffering because of a vacancy and to avoid a hiatus in the
performance of government functions. (Lecaroz v. Sandiganbayan, 305 SCRA 397,
March 25, 1999, 2nd Div. [Bellosillo])
2. The rule is settled that unless holding over be expressly or impliedly prohibited, the
incumbent may continue to hold over until someone else is elected and qualified to assume
the office. This rule is demanded by the most obvious requirements of public policy, for
without it there must frequently be cases where, from a failure to elect or a refusal or
neglect to qualify, the office would be vacant and the public service entirely suspended.
Otherwise stated, the purpose is to prevent a hiatus in the government pending the time
when the successor may be chosen and inducted into office. (Galarosa v. Valencia, 227
SCRA 728, Nov. 11, 1993, En Banc [Davide, Jr.])
289.

What is resignation? What are the requisites of a valid resignation?

Held: 1. It is the act of giving up or the act of an officer by which he declines his office and
renounces the further right to use it. It is an expression of the incumbent in some form,
express or implied, of the intention to surrender, renounce, and relinquish the office and the
acceptance by competent and lawful authority. To constitute a complete and operative
resignation from public office, there must be: (a) an intention to relinquish a part of the
term; (b) an act of relinquishment; and (c) an acceptance by the proper authority. The last
one is required by reason of Article 238 of the Revised Penal Code. (Sangguniang Bayan
of San Andres, Catanduanes v. CA, 284 SCRA 276, Jan. 16, 1998)
2. Resignation x x x is a factual question and its elements are beyond quibble: there must
be an intent to resign and the intent must be coupled by acts of relinquishment (Gonzales v.
Hernandez, 2 SCRA 228 [1961]). The validity of a resignation is not governed by any formal
requirement as to form. It can be oral. It can be written. It can be express. It can be
implied. As long as the resignation is clear, it must be given legal effect. (Estrada v.
Desierto, G.R. Nos. 146710-15, March 2, 2001, en Banc [Puno])
290. What is abandonment of an office? What are its requisites? How is it distinguished
from resignation?
Held: Abandonment of an office has been defined as the voluntary relinquishment of an
office by the holder, with the intention of terminating his possession and control thereof.
Indeed, abandonment of office is a species of resignation; while resignation in general is a
formal relinquishment, abandonment is a voluntary relinquishment through nonuser.

Abandonment springs from and is accompanied by deliberation and freedom of choice. Its
concomitant effect is that the former holder of an office can no longer legally repossess it
even by forcible reoccupancy.
Clear intention to abandon should be manifested by the officer concerned. Such intention
may be express or inferred from his own conduct. Thus, the failure to perform the duties
pertaining to the office must be with the officers actual or imputed intention to abandon and
relinquish the office. Abandonment of an office is not wholly a matter of intention; it results
from a complete abandonment of duties of such continuance that the law will infer a
relinquishment. Therefore, there are two essential elements of abandonment; first, an
intention to abandon and, second, an overt or external act by which the intention is
carried into effect. (Sangguniang Bayan of San Andres, Catanduanes v. CA, 284
SCRA 276, Jan. 16, 1998)
291. Petitioner claims that Benipayo has no authority to remove her as Director IV of the
EID and reassign her to the Law Department. Petitioner further argues that only the
COMELEC, acting as a collegial body, can authorize such reappointment. Moreover,
petitioner maintains that a reassignment without her consent amounts to removal from
office without due process and therefore illegal.
Held: Petitioners posturing will hold water if Benipayo does not possess any color of
title to the office of Chairman of the COMELEC. We have ruled, however, that Benipayo is
the de jure COMELEC Chairman, and consequently he has full authority to exercise all the
powers of that office for so long as his ad interim appointment remains effective. X x x. The
Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own
authority to transfer or reassign COMELEC personnel in accordance with the Civil Service
Law. In the exercise of this power, the Chairman is not required by law to secure the
approval of the COMELEC en banc.
Petitioners appointment papers x x x indisputably show that she held her Director IV
position in the EID only in an acting or temporary capacity. Petitioner is not a Career
Executive Service (CES), and neither does she hold Career Executive Service Eligibility,
which are necessary qualifications for holding the position of Director IV as prescribed in the
Qualifications Standards (Revised 1987) issued by the Civil Service Commission. Obviously,
petitioner does not enjoy security of tenure as Director IV. X x x
Xxx
Having been appointed merely in a temporary or acting capacity, and not possessed
of the necessary qualifications to hold the position of Director IV, petitioner has no legal
basis in claiming that her reassignment was contrary to the Civil Service Law. X x x
Still, petitioner assails her reassignment, carried out during the election period, as a
prohibited act under Section 261 (h) of the Omnibus Election Code x x x.
Xxx

Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to
effect transfers or reassignments of COMELEC personnel during the election period.
Moreover, petitioner insists that the COMELEC en banc must concur to every transfer or
reassignment of COMELEC personnel during the election period.
Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No.
3300 dated November 6, 2000, exempting the COMELEC from Section 261 (h) of the
Omnibus Election Code. X x x
Xxx
The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any
transfer or reassignment can be made within thirty days prior to election day, refers only to
COMELEC field personnel and not to head office personnel like the petitioner. Under the
Revised Administrative Code (see Section 7 [4], Chapter 2, Subtitle C, Book V of the Revised
Administrative Code), the COMELEC Chairman is the sole officer specifically vested with the
power to transfer or reassign COMELEC personnel. The COMELEC Chairman will logically
exercise the authority to transfer or reassign COMELEC personnel pursuant to COMELEC
Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power because
that will mean amending the Revised Administrative Code, an act the COMELEC en banc
cannot legally do.
COMELEC Resolution No. 3300 does not require that every transfer or reassignment of
COMELEC personnel should carry the concurrence of the COMELEC as a collegial body.
Interpreting Resolution No. 3300 to require such concurrence will render the resolution
meaningless since the COMELEC en banc will have to approve every personnel transfer or
reassignment, making the resolution utterly useless. Resolution No. 3300 should be
interpreted for what it is, an approval to effect transfers and reassignments of personnel,
without need of securing a second approval from the COMELEC en banc to actually
implement such transfer or reassignment.
The COMELEC Chairman is the official expressly authorized by law to transfer or reassign
COMELEC personnel. The person holding that office, in a de jure capacity, is Benipayo. The
COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment
of COMELEC personnel during the election period. Thus, Benipayos order reassigning
petitioner from the EID to the Law Department does not violate Section 261 (h) of the
Omnibus Election Code. For the same reason, Benipayos order designating Cinco Officer-inCharge of the EID is legally unassailable. (Matibag v. Benipayo, 380 SCRA 49, April 2,
2002, En Banc [Carpio])
292. Is a government employee who has been ordered arrested and detained for a nonbailable offense and for which he was suspended for his inability to report for work until the
termination of his case, still required to file a formal application for leave of absence to
ensure his reinstatement upon his acquittal and thus protect his security of tenure?
Concomitantly, will his prolonged absence from office for more than one (1) year
automatically justify his being dropped from the rolls without prior notice despite his being

allegedly placed under suspension by his employer until the termination of his case, which
finally resulted in his acquittal for lack of evidence?
EUSEBIA R. GALZOTE was employed as a lowly clerk in the service of the City
Government of Makati City. With her meager income she was the lone provider for her
children. But her simple life was disrupted abruptly when she was arrested without warrant
and detained for more than three (3) years for a crime she did not commit. Throughout her
ordeal she trusted the city government that the suspension imposed on her was only until
the final disposition of her case. As she drew near her vindication she never did expect the
worst to come to her. On the third year of her detention the city government lifted her
suspension, dropped her from the rolls without prior notice and without her knowledge,
much less gave her an opportunity to forthwith correct the omission of an application for
leave of absence belatedly laid on her.
Upon her acquittal for lack of evidence and her release from detention she was
denied reinstatement to her position. She was forced to seek recourse in the Civil Service
Commission which ordered her immediate reinstatement with back wages from 19 October
1994, the date when she presented herself for reassumption of duties but was turned back
by the city government, up to the time of her actual reinstatement.
Xxx
Plainly, the case of petitioner City Government of Makati City revolves around a
rotunda of doubt, a dilemma concerning the legal status and implications of its suspension
of private respondent Eusebia R. Galzote and the automatic leave of absence espoused by
the Civil Service Commission. Against this concern is the punctilious adherence to
technicality, the requirement that private respondent should have filed an application for
leave of absence in proper form. The instant case is therefore a dispute between, at its
worst, private respondents substantial compliance with the standing rules, and the City
Governments insistence that the lowly clerk should have still gone through the formalities of
applying for leave despite her detention, of which petitioner had actual notice, and the
suspension order couched in simple language that she was being suspended until the final
disposition of her criminal case.
The meaning of suspension until the final disposition of her case is that should her
case be dismissed she should be reinstated to her position with payment of back wages.
She did not have to apply for leave of absence since she was already suspended by her
employer until her case would be terminated. We have done justice to the workingman in
the past; today we will do no less by resolving all doubts in favor of the humble employee in
faithful obeisance to the constitutional mandate to afford full protection to labor (Const., Art.
XIII, Sec. 3, par. 1; Art. II, Sec. 18)
Xxx
As may be gleaned from the pleadings of the parties, the issues are: (1) whether
private respondent Eusebia R. Galzote may be considered absent without leave; (b) whether

due process had been observed before she was dropped from the rolls; and, (3) whether she
may be deemed to have abandoned her position, hence, not entitled to reinstatement with
back salaries for not having filed a formal application for leave. Encapsulated, the issues
may be reduced to whether private respondent may be considered absent without leave or
whether she abandoned her job as to justify being dropped from the service for not filing a
formal application for leave.
Petitioner would have private respondent declared on AWOL and faults her for failing
to file an application for leave of absence under Secs. 20 (Now Sec. 52 of Rule XVI, Leave of
Absence, of Res. No. 91-1631 dated 27 December 1991, as amended by CSC MC No. 41, s.
1998) and 35 (Now Sec. 63 of Rule XVI, Leave of Absence, of Res. No. 91-1631 dated 27
December 1991, as amended by CSC MC Nos. 41, s. 1998 and 14, s. 1999) of the CSC Rules
and rejects the CSCs ruling of an automatic leave of absence for the period of her
detention since the current Civil Service Law and Rules do not contain any specific
provision on automatic leave of absence.
The Court believes that private respondent cannot be faulted for failing to file prior to
her detention an application for leave and obtain approval thereof. The records clearly show
that she had been advised three (3) days after her arrest, or on 9 September 1991, that
petitioner City government of Makati City had placed her under suspension until the final
disposition of her criminal case. This act of petitioner indubitably recognized private
respondents predicament and thus allowed her to forego reporting for work during the
pendency of her criminal case without the needless exercise of strict formalities. At the very
least, this official communication should be taken as an equivalent of a prior approved leave
of absence since it was her employer itself which placed her under suspension and thus
excused her from further formalities in applying for such leave. Moreover, the arrangement
bound the City Government to allow private respondent to return to her work after the
termination of her case, i.e., if acquitted of the criminal charge. This pledge sufficiently
served as legitimate reason for her to altogether dispense with the formal application for
leave; there was no reason to, as in fact it was not required, since she was for all practical
purposes incapacitated or disabled to do so.
Indeed, private respondent did not have the least intention to go on AWOL from her post as
Clerk III of petitioner, for AWOL means the employee leaving or abandoning his post without
justifiable reason and without notifying his employer. In the instant case, private respondent
had a valid reason for failing to report for work as she was detained without bail. Hence,
right after her release from detention, and when finally able to do so, she presented herself
to the Municipal Personnel Officer of petitioner City Government to report for work.
Certainly, had she been told that it was still necessary for her to file an application for leave
despite the 9 September 1991 assurance from petitioner, private respondent would have
lost no time in filing such piece of document. But the situation momentarily suspending her
from work persisted: petitioner City Government did not alter the modus vivendi with private
respondent and lulled her into believing that its commitment that her suspension was only
until the termination of her case was true and reliable. Under the circumstances private
respondent was in, prudence would have dictated petitioner, more particularly the
incumbent city executive, in patria potestas, to advise her that it was still necessary

although indeed unnecessary and a useless ceremony to file such application despite the
suspension order, before depriving her of her legitimate right to return to her position.
Patria potestas in piatate debet, non in atrocitate, consistere. Paternal power should consist
or be exercised in affection, not in atrocity.
It is clear from the records that private respondent Galzote was arrested and detained
without a warrant on 6 September 1991 for which reason she and her co-accused were
subjected immediately to inquest proceedings. This fact is evident from the instant petition
itself and its attachments x x x. Hence, her ordeal in jail began on 6 September 1991 and
ended only after her acquittal, thus leaving her no time to attend to the formality of filing a
leave of absence.
But petitioner City Government would unceremoniously set aside its 9 September
1991 suspension order claiming that it was superseded three (3) years later by a
memorandum dropping her from the rolls effective 21 January 1993 for absence for more
than one (1) year without official leave. Hence, the suspension order was void since there
was no pending administrative charge against private respondent so that she was not
excused from filing an application for leave.
We do not agree. In placing private respondent under suspension until the final
disposition of her criminal case, the Municipal Personnel Officer acted with competence, so
he presumably knew that his order of suspension was not akin to either suspension as
penalty or preventive suspension since there was no administrative case against private
respondent. As competence on the part of the MPO is presumed, any error on his part
should not prejudice private respondent, and that what he had in mind was to consider her
as being on leave of absence without pay and their employer-employee relationship being
merely suspended, not severed, in the meantime. This construction of the order of
suspension is actually more consistent with logic as well as fairness and kindness to its
author, the MPO. Significantly, the idea of a suspended employer-employee relationship is
widely accepted in labor law to account for situations wherein laborers would have no work
to perform for causes not attributable to them (see e.g., Visayan Stevedore Transportation
Company v. Court of Industrial Relations, No. L-21696, 25 February 1967, 19 SCRA 426;
Tomas Lao Construction v. NLRC, G.R. No. 116781, 5 September 1997, 278 SCRA 716). We
find no basis for denying the application of this principle to the instant case which also
involves a lowly worker in the public service.
Moreover, we certainly cannot nullify the City Governments order of suspension, as
we have no reason to do so, much less retroactively apply such nullification to deprive
private respondent of a compelling and valid reason for not filing the leave application. For
as we have held, a void act though in law a mere scrap of paper nonetheless confers
legitimacy upon past acts or omissions done in reliance thereof (De Agbayani v. Philippine
National Bank, G.R. No. 231127, 29 April 1971, 38 SCRA 429; Municipality of Malabang v.
Benito, G.R No. 28113, 28 March 1969, 27 SCRA 545). Consequently, the existence of a
statute or executive order prior to its being adjudged void is an operative fact to which legal
consequences are attached (De Agbayani, supra, p. 435). It would indeed be ghastly unfair

to prevent private respondent from relying upon the order of suspension in lieu of a formal
leave application.
At any rate, statements are, or should be, construed against the one responsible for
the confusion; otherwise stated, petitioner must assume full responsibility for the
consequences of its own act, hence, he should be made to answer for the mix-up of private
respondent as regards the leave application. At the very least, it should be considered
estopped from claiming that its order of suspension is void or that it did not excuse private
respondent from filing an application for leave on account of her incarceration. It is a fact
that she relied upon this order, issued barely three (3) days from the date of her arrest, and
assumed that when the criminal case would be settled she could return to work without
need of any prior act. X x x
Xxx
The holding of the Civil Service Commission that private respondent was on
automatic leave of absence during the period of her detention must be sustained. The CSC
is the constitutionally mandated central personnel agency of the Government tasked to
establish a career service and adopt measures to promote morale, efficiency, integrity,
responsiveness, progressiveness and courtesy in the civil service (Const., Art. IX-B, Sec. 3)
and strengthen the merit and rewards system, integrate all human resources development
programs for all levels and ranks, and institutionalize a management climate conducive to
public accountability. (Ibid.) Besides, the Administrative Code of 1987 further empowers
the CSC to prescribe, amend, and enforce rules and regulations for carrying into effect the
provisions of the Civil Service Law and other pertinent laws, (Bk. V, I (A), Ch. 3, Sec. 12) and
for matters concerning leaves of absence, the Code specifically vests the CSC to ordain
Sec. 60. Leave of absence. Officers and employees in the Civil Service shall be entitled to
leave of absence, with or without pay, as may be provided by law and the rules and
regulations of the Civil Service Commission in the interest of the service.
Pursuant thereto the CSC promulgated Resolution No. 91-1631 dated 27 December
1991 entitled Rules Implementing Book V of Executive Order No. 292 and Other Pertinent
Civil Service Laws which it has several times amended through memorandum circulars. It
devotes Rule XVI to leaves of absence. Petitioner City Government relies upon Secs. 20 and
35 to debunk the CSC ruling of an automatic leave of absence. Significantly, these
provisions have been amended so that Sec. 20 of the Civil Service Rules is now Sec. 52 of
Rule XVI, on Leave of Absence, of Resolution No. 91-1631 dated 27 December 1991 as
amended by CSC MC No. 41, s. 1998, and Sec. 35 is now Sec. 63 as amended by CSC MC
Nos. 41, s. 1998 and 14, s. 1999.
Xxx
As a general rule, Secs. 20 and 52, as well as Secs. 35 and 63, require an approved
leave of absence to avoid being an AWOL. However, these provisions cannot be interpreted
as exclusive and referring only to one mode of securing the approval of a leave of absence

which would require an employee to apply for it, formalities and all, before exceeding thirty
(30) days of absence in order to avoid from being dropped from the rolls. There are, after
all, other means of seeking and granting an approved leave of absence, one of which is the
CSC recognized rule of automatic leave of absence under specified circumstances. X x x
Xxx
As properly noted, the CSC was only interpreting its own rules on leave of absence
and not a statutory provision (As a matter of fact, Sec. 60 of the Administrative Code does
not provide for any rule on leave of absence other than that civil servants are entitled to
leave of absence) in coming up with this uniform rule. Undoubtedly, the CSC like any other
agency has the power to interpret its own rules and any phrase contained in them
(Norwegian Nitrogen Products Co. v. United States of America, 288 SCRA 294, 325, 77 Led.
796, 812 [1933]) with its interpretation significantly becoming part of the rules themselves.
Xxx
Xxx
Under RA 6656 (An Act to Protect the Security of Tenure of Civil Service Officers and
Employees in the Implementation of Government Reorganization) and RA 7160 (The Local
Government Code of 1991), civil servants who are found illegally dismissed or retrenched
are entitled to full pay for the period of their separation.
Our final point. An efficient and honest bureaucracy is never inconsistent with the
emphasis on and the recognition of the basic rights and privileges of our civil servants or, for
that matter, the constitutional mandates of the Civil Service Commission. In fact only from
an enlightened corps of government workers and an effective CSC grows the
professionalization of the bureaucracy. Indeed the government cannot be left in the lurch;
but neither could we decree that government personnel be separated from their jobs
indiscriminately regardless of fault. The fine line between these concerns may be difficult to
clearly draw but if we only exerted extra effort to rebel against the allure of legal oversimplification, justice would have been done where it is truly due. (City Government of
Makati City v. Civil Service Commission, 376 SCRA 248, Feb. 6, 2002, En Banc
[Bellosillo])
293.

What is abandonment of office? What are its essential elements?

Held: Abandonment of an office is the voluntary relinquishment of an office by the holder,

with the intention of terminating his possession and control thereof (Sangguniang Bayan of
San Andres, Catanduanes v. Court of Appeals, 284 SCRA 276 [1998]). In order to constitute
abandonment of an office, it must be total and under such circumstances as clearly to
indicate an absolute relinquishment (Airoso v. De Guzman, 49 Phil. 371 [1926]). There must
be a complete abandonment of duties of such continuance that the law will infer a
relinquishment (67 C.J.S. Officers Sec. 100, citing Cosby v. Moore, 65 So.2d 178, 259 Ala.
41). Abandonment of duties is a voluntary act (Ibid., citing Steingruber v. San Antonio,
Comm. App., 220 S.W. 77, 78); it springs from and is accompanied by deliberation and
freedom of choice (Jorge v. Mayor, 10 SCRA 331 [1964], citing Teves v. Sindiong, 81 Ohil. 658
[1948]). There are, therefore, two essential elements of abandonment: first, an intention to

abandon and second, an overt or external act by which the intention is carried into effect
(67 C.J.S. Officers Sec. 100, citing Rainwater v. State ex rel. Strickland, 178 So. 484, 237 Ala.
482, 121 A.L.R. 981)
Generally speaking, a person holding a public office may abandon such office by nonuser or
acquiescence (Ibid., citing Herbert v. State Oil and Gas Bd., 250 So.2d 597, 287 Ala. 221).
Non-user refers to a neglect to use a right or privilege or to exercise an office (Sangguniang
Bayan of San Andres, Catanduanes v. Court of Appeals, supra). However, nonperformance
of the duties of an office does not constitute abandonment where such nonperformance
results from temporary disability or from involuntary failure to perform (67 C.J.S. Sec. 100,
citing Doris v. Heroux, 47 A.2d 633, 71 R.I. 491). Abandonment may also result from an
acquiescence by the officer in his wrongful removal or discharge, for instance, after a
summary removal, an unreasonable delay by an officer illegally removed in taking steps to
vindicate his rights may constitute an abandonment of the office (Ibid., citing Nicholas v.
U.S., Ct. Cl., 42 S.Ct. 7, 257 U.S. 71, 66 L. Ed. 133). Where, while desiring and intending to
hold the office, and with no willful desire or intention to abandon it, the public officer vacates
it in deference to the requirements of a statute which is afterwards declared
unconstitutional, such a surrender will not be deemed an abandonment and the officer may
recover the effect. (Mechem, A Treatise on the Law of Public Offices and Officers, 1890
edition, p. 279, citing Turnipseed v. Hudson, 50 Miss. 429, 19 Am. Rep. 15) (Canonizado v.
Aguirre, 351 SCRA 659, 665-668, Feb. 15, 2001, En Banc [Gonzaga-Reyes])
294. By accepting another position in the government during the pendency of a case
brought precisely to assail the constitutionality of his removal - may a person be deemed to
have abandoned his claim for reinstatement?
Held: Although petitioners do not deny the appointment of Canonizado as Inspector
General, they maintain that Canonizados initiation and tenacious pursuance of the present
case would belie any intention to abandon his former office. Petitioners assert that
Canonizado should not be faulted for seeking gainful employment during the pendency of
this case. Furthermore, petitioners point out that from the time Canonizado assumed office
as Inspector General he never received the salary pertaining to such position x x x.
Xxx
By accepting the position of Inspector General during the pendency of the present
case brought precisely to assail the constitutionality of his removal from the NAPOLCOM
Canonizado cannot be deemed to have abandoned his claim for reinstatement to the latter
position. First of all, Canonizado did not voluntarily leave his post as Commissioner, but was
compelled to do so on the strength of Section 8 of RA 8551 x x x
In our decision of 25 January 2000, we struck down the abovequoted provision for
being violative of petitioners constitutionally guaranteed right to security of tenure. Thus,
Canonizado harbored no willful desire or intention to abandon his official duties. In fact,
Canonizado, together with petitioners x x x lost no time disputing what they perceived to be
an illegal removal; a few weeks after RA 8551 took effect x x x petitioners instituted the
current action x x x assailing the constitutionality of certain provisions of said law. The
removal of petitioners from their positions by virtue of a constitutionally infirm act
necessarily negates a finding of voluntary relinquishment. (Canonizado v. Aguirre, 351
SCRA 659, 665-668, Feb. 15, 2001, En Banc [Gonzaga-Reyes])
295. What is the effect of acceptance of an incompatible office to a claim for
reinstatement?

Held: The next issue is whether Canonizados appointment to and acceptance of the
position of Inspector General should result in an abandonment of his claim for reinstatement
to the NAPOLCOM. It is a well-settled rule that he who, while occupying one office, accepts
another incompatible with the first, ipso facto vacates the first office and his title is thereby
terminated without any other act or proceeding (Mechem, A Treatise on the Law of Public
Offices and Officers, 1890 edition, p. 267). Public policy considerations dictate against
allowing the same individual to perform inconsistent and incompatible duties (Ibid.). The
incompatibility contemplated is not the mere physical impossibility of one persons
performing the duties of the two offices due to a lack of time or the inability to be in two
places at the same moment, but that which proceeds from the nature and relations of the
two positions to each other as to give rise to contrariety and antagonism should one person
attempt to faithfully and impartially discharge the duties of one toward the incumbent of the
other. (Ibid.)
There is no question that the positions of NAPOLCOM Commissioner and Inspector
General of the IAS are incompatible with each other. As pointed out by respondents, RA
8551 prohibits any personnel of the IAS from sitting in a committee charged with the task of
deliberating on the appointment, promotion, or assignment of any PNP personnel, whereas
the NAPOLCOM has the power of control and supervision over the PNP. However, the rule
on incompatibility of duties will not apply to the case at bar because at no point did
Canonizado discharge the functions of the two offices simultaneously. Canonizado was
forced out of his first office by the enactment of Section 8 of RA 8551. Thus, when
Canonizado was appointed as Inspector General x x x he had ceased to discharge his official
functions as NAPOLCOM Commissioner. X x x. Thus, to reiterate, the incompatibility of
duties rule never had a chance to come into play for petitioner never occupied the two
positions, of Commissioner and Inspector General, nor discharged their respective functions,
concurrently.
Xxx
As in the Tan (Tan v. Gimenez, 107 Phil. 17 [1960]) and Gonzales (Gonzales v. Hernandez, 2
SCRA 228 [1961]) cases, Canonizado was compelled to leave his position as Commissioner,
not by an erroneous decision, but by an unconstitutional provision of law. Canonizado, like
the petitioners in the above mentioned cases, held a second office during the period that his
appeal was pending. As stated in the Comment filed by petitioners, Canonizado was
impelled to accept this subsequent position by a desire to continue serving the country, in
whatever capacity. Surely, this selfless and noble aspiration deserves to be placed on at
least equal footing with the worthy goal of providing for oneself and ones family, either of
which are sufficient to justify Canonizados acceptance of the position of Inspector General.
A Contrary ruling would deprive petitioner of his right to live, which contemplates not only a
right to earn a living, as held in previous cases, but also a right to lead a useful and
productive life. Furthermore, prohibiting Canonizado from accepting a second position
during the pendency of his petition would be to unjustly compel him to bear the
consequences of an unconstitutional act which under no circumstance can be attributed to
him. However, before Canonizado can re-assume his post as Commissioner, he should first
resign as Inspector General of the IAS-PNP. (Canonizado v. Aguirre, 351 SCRA 659, Feb.
15, 2001, En Banc [Gonzaga-Reyes])

296. May the appointment of a person assuming a position in the civil service under a
completed appointment be validly recalled or revoked?
Held: It has been held that upon the issuance of an appointment and the appointees
assumption of the position in the civil service, he acquires a legal right which cannot be
taken away either by revocation of the appointment or by removal except for cause and with
previous notice and hearing. (Mauna v. Civil Service Commission, 232 SCRA 388,
398 [1994]) Moreover, it is well-settled that the person assuming a position in the civil
service under a completed appointment acquires a legal, not just an equitable, right to the
position. This right is protected not only by statute, but by the Constitution as well, which
right cannot be taken away by either revocation of the appointment, or by removal, unless
there is valid cause to do so, provided that there is previous notice and hearing. (Aquino v.
Civil Service Commission, 208 SCRA 240, 248 [1992])
Petitioner admits that his very first official act upon assuming the position of town mayor
was to issue Office Order No. 95-01 which recalled the appointments of the private
respondents. There was no previous notice, much less a hearing accorded to the latter.
Clearly, it was petitioner who acted in undue haste to remove the private respondents
without regard for the simple requirements of due process of law. While he argues that the
appointing power has the sole authority to revoke said appointments, there is no debate that
he does not have blanket authority to do so. Neither can he question the CSCs jurisdiction
to affirm or revoke the recall.
Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised Administrative
Code specifically provides that an appointment accepted by the appointee cannot be
withdrawn or revoked by the appointing authority and shall remain in force and in effect until
disapproved by the Commission. Thus, it is the CSC that is authorized to recall an
appointment initially approved, but only when such appointment and approval are proven to
be in disregard of applicable provisions of the civil service law and regulations (Debulgado
v. Civil Service Commission, 237 SCRA 184, 200 [1994]).
Moreover, Section 10 of the same rule provides:
Sec. 10. An appointment issued in accordance with pertinent laws and rules shall take
effect immediately upon its issuance by the appointing authority, and if the appointee has
assumed the duties of the position, he shall be entitled to receive his salary at once without
awaiting the approval of his appointment by the Commission. The appointment shall remain
effective until disapproved by the Commission. In no case shall an appointment take effect
earlier than the date of its issuance.
Section 20 of Rule VI also provides:
Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled
on any of the following grounds:
e
f
g
h

Non-compliance with the procedures/criteria provided in the agencys Merit Promotion Plan;
Failure to pass through the agencys Selection/Promotion Board;
Violation of the existing collective agreement between management and employees relative
to promotion; or
Violation of other existing civil service law, rules and regulations.
Accordingly, the appointments of the private respondents may only be recalled on the
above-cited grounds. And yet, the only reason advanced by the petitioner to justify the
recall was that these were midnight appointments. The CSC correctly ruled, however, that

the constitutional prohibition on so-called midnight appointments, specifically those made

within two (2) months immediately prior to the next presidential elections, applies only to
the President or Acting President. (De Rama v. Court of Appeals, 353 SCRA 94, Feb.
28, 2001, En Banc [Ynares-Santiago])
297.

When may unconsented transfers be considered anathema to security of tenure?

Held: As held in Sta. Maria v. Lopez (31 SCRA 637, 653 citing Ibanez v. Commission on
Elections, L-26558, April 27, 1967, 19 SCRA 1002, 1012 and Section 12 of the Tax Code).
"x x x the rule that outlaws unconsented transfers as anathema to security of tenure applies
only to an officer who is appointed - not merely assigned - to a particular station. Such a
rule does not pr[o]scribe a transfer carried out under a specific statute that empowers the
head of an agency to periodically reassign the employees and officers in order to improve
the service of the agency. x x x"
The guarantee of security of tenure under the Constitution is not a guarantee of perpetual
employment. It only means that an employee cannot be dismissed (or transferred) from the
service for causes other than those provided by law and after due process is accorded the
employee. What it seeks to prevent is capricious exercise of the power to dismiss. But
where it is the law-making authority itself which furnishes the ground for the transfer of a
class of employees, no such capriciousness can be raised for so long as the remedy
proposed to cure a perceived evil is germane to the purposes of the law. (Agripino A. De
Guzman, Jr., et al. v. COMELEC, G.R. No. 129118, July 19, 2000, En Banc
[Purisima])
298.

Discuss Abolition of Office?

Held: The creation and abolition of public offices is primarily a legislative function. It is
acknowledged that Congress may abolish any office it creates without impairing the officer's
right to continue in the position held and that such power may be exercised for various
reasons, such as the lack of funds or in the interest of economy. However, in order for the
abolition to be valid, it must be made in good faith, not for political or personal reasons, or in
order to circumvent the constitutional security of tenure of civil service employees.
An abolition of office connotes an intention to do away with such office wholly and
permanently, as the word "abolished" denotes. Where one office is abolished and replaced
with another office vested with similar functions, the abolition is a legal nullity. Thus, in U.P.
Board of Regents v. Rasul (200 SCRA 685 [1991]) we said:
It is true that a valid and bona fide abolition of an office denies to the incumbent the right to
security of tenure (De la Llana v. Alba, 112 SCRA 294 [1982]). However, in this case, the
renaming and restructuring of the PGH and its component units cannot give rise to a valid
and bona fide abolition of the position of PGH Director. This is because where the abolished
office and the offices created in its place have similar functions, the abolition lacks good
faith (Jose L. Guerrero v. Hon. Antonio V. Arizabal, G.R. No. 81928, June 4, 1990, 186 SCRA
108 [1990]). We hereby apply the principle enunciated in Cezar Z. Dario v. Hon. Salvador M.
Mison (176 SCRA 84 [1989]) that abolition which merely changes the nomenclature of
positions is invalid and does not result in the removal of the incumbent.
The above notwithstanding, and assuming that the abolition of the position of the PGH
Director and the creation of a UP-PGH Medical Center Director are valid, the removal of the
incumbent is still not justified for the reason that the duties and functions of the two
positions are basically the same.

This was also our ruling in Guerrero v. Arizabal (186 SCRA 108 [1990]), wherein we declared
that the substantial identity in the functions between the two offices was indicia of bad faith
in the removal of petitioner pursuant to a reorganization. (Alexis C. Canonizado, et al. v.
Hon. Alexander P. Aguirre, et al., G.R. No. 133132, Jan. 25, 2000, En Banc
[Gonzaga-Reyes])
299.

What is reorganization? When is it valid? When is it invalid?

Held: 1. Reorganization takes place when there is an alteration of the existing structure of
government offices or units therein, including the lines of control, authority and
responsibility between them. It involves a reduction of personnel, consolidation of offices, or
abolition thereof by reason of economy or redundancy of functions. Naturally, it may result
in the loss of one's position through removal or abolition of an office. However, for a
reorganization to be valid, it must also pass the test of good faith, laid down in Dario v.
Mison (176 SCRA 84 [1989]):
x x x As a general rule, a reorganization is carried out in "good faith" if it is for the purpose
of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of
dismissal) or separation actually occurs because the position itself ceases to exist. And in
that case, security of tenure would not be a Chinese wall. Be that as it may, if the
"abolition" which is nothing else but a separation or removal, is done for political reasons or
purposely to defeat security of tenure, or otherwise not in good faith, no valid "abolition"
takes place and whatever "abolition" is done, is void ab initio. There is an invalid "abolition"
as where there is merely a change of nomenclature of positions, or where claims of economy
are belied by the existence of ample funds.
(Alexis C. Canonizado, et al. v. Hon. Alexander P. Aguirre, et al., G.R. No. 133132,
Jan. 25, 2000, En Banc [Gonzaga-Reyes])
2. While the Presidents power to reorganize can not be denied, this does not mean
however that the reorganization itself is properly made in accordance with law. Well-settled
is the rule that reorganization is regarded as valid provided it is pursued in good faith. Thus,
in Dario v. Mison, this Court has had the occasion to clarify that:
As a general rule, a reorganization is carried out in good faith if it is for the purpose of
economy or to make the bureaucracy more efficient. In that event no dismissal or
separation actually occurs because the position itself ceases to exist. And in that case the
security of tenure would not be a Chinese wall. Be that as it may, if the abolition which is
nothing else but a separation or removal, is done for political reasons or purposely to defeat
security of tenure, or otherwise not in good faith, no valid abolition takes place and whatever
abolition done is void ab initio. There is an invalid abolition as where there is merely a
change of nomenclature of positions or where claims of economy are belied by the existence
of ample funds. (176 SCRA 84)
(Larin v. Executive Secretary, 280 SCRA 713, Oct. 16, 1997)
300. What are the circumstances evidencing bad faith in the removal of employees as a
result of reorganization and which may give rise to a claim for reinstatement or
reappointment)?
Held:
1)

Where there is a significant increase in the number of positions in the new

staffing pattern of the department or agency concerned;
2)
Where an office is abolished and another performing substantially the same
functions is created;

3)

Where incumbents are replaced by those less qualified in terms of status of

appointment, performance and merit;
4)
Where there is a reclassification of offices in the department or agency concerned
and the reclassified offices perform substantially the same functions as the original offices;
5)
Where the removal violates the order of separation provided in Section 3 hereof.
(Sec. 2, R.A. No. 6656; Larin v. Executive Secretary, 280 SCRA 713, Oct. 16, 1997)
ELECTION LAWS
301.

Discuss the Right of Suffrage, and its substantive and procedural requirements.

Held: In a representative democracy such as ours, the right of suffrage, although

accorded a prime niche in the hierarchy of rights embodied in the fundamental law, ought to
be exercised within the proper bounds and framework of the Constitution and must properly
yield to pertinent laws skillfully enacted by the Legislature, which statutes for all intents and
purposes, are crafted to effectively insulate such so cherished right from ravishment and
preserve the democratic institutions our people have, for so long, guarded against the spoils
of opportunism, debauchery and abuse.
To be sure, the right of suffrage x x x is not at all absolute. Needless to say, the
exercise of the right of suffrage, as in the enjoyment of all other rights, is subject to existing
substantive and procedural requirements embodied in our Constitution, statute books and
other repositories of law. Thus, as to the substantive aspect, Section 1, Article V of the
Constitution provides:
SECTION 1. SUFFRAGE MAY BE EXERCISED BY ALL CITIZENS OF THE PHILIPPINES
NOT OTHERWISE DISQUALIFIED BY LAW, WHO ARE AT LEAST EIGHTEEN YEARS OF AGE, AND
WHO SHALL HAVE RESIDED IN THE PHILIPPINES FOR AT LEAST ONE YEAR AND IN THE PLACE
WHEREIN THEY PROPOSE TO VOTE FOR AT LAST SIX MONTHS IMMEDIATELY PRECEDING THE
ELECTION. NO LITERACY, PROPERTY, OR OTHER SUBSTANTIVE REQUIREMENT SHALL BE
IMPOSED ON THE EXERCISE OF SUFFRAGE.
As to the procedural limitation, the right of a citizen to vote is necessarily conditioned
upon certain procedural requirements he must undergo: among others, the process of
registration. Specifically, a citizen in order to be qualified to exercise his right to vote, in
addition to the minimum requirements set by the fundamental charter, is obliged by law to
register, at present, under the provisions of Republic Act No. 8189, otherwise known as the
Voters Registration Act of 1996. (Akbayan-Youth v. COMELEC, 355 SCRA 318, Mar.
26, 2001, En Banc [Buena])
302.
Discuss the reason behind the principle of ballot secrecy. May the conduct of exit
polls transgress the sanctity and the secrecy of the ballot to justify its prohibition?
Held: The reason behind the principle of ballot secrecy is to avoid vote buying through
voter identification. Thus, voters are prohibited from exhibiting the contents of their official
ballots to other persons, from making copies thereof, or from putting distinguishing marks
thereon so as to be identified. Also proscribed is finding out the contents of the ballots cast
by particular voters or disclosing those of disabled or illiterate voters who have been
assisted. Clearly, what is forbidden is the association of voters with their respective votes,
for the purpose of assuring that the votes have been cast in accordance with the instructions
of a third party. This result cannot, however, be achieved merely through the voters verbal
and confidential disclosure to a pollster of whom they have voted for.

In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the
revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may
also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be
prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct
of exit polls, without transgressing the fundamental rights of our people. (ABS-CBN
Broadcasting Corporation v. COMELEC, G.R. No. 133486, Jan. 28, 2000, En Banc
[Panganiban])
303.

Discuss the meaning and purpose of residency requirement in Election Law.

Held: 1. The meaning and purpose of the residency requirement were explained recently
in our decision in Aquino v. Comelec (248 SCRA 400, 420-421 [1995]), as follows:
X x x [T]he place where a party actually or constructively has his permanent home, where
he, no matter where he may be found at any given time, eventually intends to return and
remain, i.e., his domicile, is that to which the Constitution refers when it speaks of residence
for the purposes of election law. The manifest purpose of this deviation from the usual
conceptions of residency in law as explained in Gallego v. Vera is to exclude strangers or
newcomers unfamiliar with the conditions and needs of the community from taking
advantage of favorable circumstances existing in that community for electoral gain. While
there is nothing wrong with the practice of establishing residence in a given area for meeting
election law requirements, this nonetheless defeats the essence of representation, which is
to place through the assent of voters those most cognizant and sensitive to the needs of a
particular district, if a candidate falls short of the period of residency mandated by law for
him to qualify. That purpose could be obviously best met by individuals who have either had
actual residence in the area for a given period or who have been domiciled in the same area
either by origin or by choice.
(Marcita Mamba Perez v. COMELEC, G.R. No. 133944, Oct. 28, 1999, En Banc
[Mendoza])
2. The Constitution and the law requires residence as a qualification for seeking and
holding elective public office, in order to give candidates the opportunity to be familiar with
the needs, difficulties, aspirations, potentials for growth and all matters vital to the welfare
of their constituencies; likewise, it enables the electorate to evaluate the office seekers
qualifications and fitness for the job they aspire for. Inasmuch as Vicente Y. Emano has
proven that he, together with his family, (1) had actually resided in a house he bought in
1973 in Cagayan de Oro City; (2) had actually held office there during his three terms as
provincial governor of Misamis Oriental, the provincial capitol being located therein; and (3)
has registered as voter in the city during the period required by law, he could not be deemed
a stranger or newcomer when he ran for and was overwhelmingly voted as city mayor.
Election laws must be liberally construed to give effect to the popular mandate. (Torayno,
Sr. v. COMELEC, 337 SCRA 574, Aug. 9, 2000, En Banc [Panganiban])
3. Generally, in requiring candidates to have a minimum period of residence in the area in
which they seek to be elected, the Constitution or the law intends to prevent the possibility
of a stranger or newcomer unacquainted with the conditions and needs of a community and
not identified with the latter from [seeking] an elective office to serve that community.
Such provision is aimed at excluding outsiders from taking advantage of favorable
circumstances existing in that community for electoral gain. Establishing residence in a
community merely to meet an election law requirement defeats the purpose of
representation: to elect through the assent of voters those most cognizant and sensitive to
the needs of the community. This purpose is best met by individuals who have either had
actual residence in the area for a given period or who have been domiciled in the same area
either by origin or by choice. (Torayno, Sr. v. COMELEC, 337 SCRA 574, Aug. 9, 2000,
En Banc [Panganiban])

304. Does the fact that a person is registered as a voter in one district proof that he is not
domiciled in another district?
Held: The fact that a person is registered as a voter in one district is not proof that he is not
domiciled in another district. Thus, in Faypon v. Quirino (96 Phil. 294 [1954]), this Court held
that the registration of a voter in a place other than his residence of origin is not sufficient to
consider him to have abandoned or lost his residence. (Marcita Mamba Perez v.
COMELEC, G.R. No. 133944, Oct. 28, 1999, En Banc [Mendoza])
305.

Discuss the nature of Voters Registration.

Held: Stated differently, the act of registration is an indispensable precondition to

the right of suffrage. For registration is part and parcel of the right to vote and an
indispensable element in the election process. Thus, x x x registration cannot and should
not be denigrated to the lowly stature of a mere statutory requirement. Proceeding from the
significance of registration as a necessary requisite to the right to vote, the State
undoubtedly, in the exercise of its inherent police power, may then enact laws to safeguard
and regulate the act of voters registration for the ultimate purpose of conducting honest,
orderly and peaceful election, to the incidental yet generally important end, that even preelection activities could be performed by the duly constituted authorities in a realistic and
orderly manner one which is not indifferent and so far removed from the pressing order of
the day and the prevalent circumstances of the times. (Akbayan-Youth v. COMELEC, 355
SCRA 318, Mar. 26, 2001, En Banc [Buena])
306.

What is the Lone Candidate Law? What are its salient provisions?

Answer: The Lone Candidate Law is Republic Act No. 8295, enacted on June 6, 1997.
Section 2 thereof provides that Upon the expiration of the deadline for the filing of the
certificate of candidacy in a special election called to fill a vacancy in an elective position
other than for President and Vice-President, when there is only one (1) qualified candidate
for such position, the lone candidate shall be proclaimed elected to the position by proper
proclaiming body of the Commission on Elections without holding the special election upon
certification by the Commission on Elections that he is the only candidate for the office and
is thereby deemed elected.
Section 3 thereof provides that the lone candidate so proclaimed shall assume office not
earlier than the scheduled election day, in the absence of any lawful ground to deny due
course or cancel the certificate of candidacy in order to prevent such proclamation, as
provided for under Sections 69 and 78 of Batas Pambansa Bilang 881 also known as the
Omnibus Election Code.
307.

Who are disqualified to run in a special election under the Lone Candidate Law?

Answer:
Section 4 of the Lone Candidate Law provides that In addition to the
disqualifications mentioned in Sections 12 and 68 of the Omnibus Election Code and Section
40 of Republic Act No. 7160, otherwise known as the Local Government Code, whenever the
evidence of guilt is strong, the following persons are disqualified to run in a special election
called to fill the vacancy in an elective office, to wit:
a)

Any elective official who has resigned from his office by accepting an appointive
office or for whatever reason which he previously occupied but has caused to become
vacant due to his resignation; and

b)

Any person who, directly or indirectly, coerces, bribes, threatens, harasses,

intimidates or actually causes, inflicts or produces any violence, injury, punishment, torture,
damage, loss or disadvantage to any person or persons aspiring to become a candidate or
that of the immediate member of his family, his honor or property that is meant to eliminate
all other potential candidate.
308. What is the purpose of the law in requiring the filing of certificate of candidacy and in
fixing the time limit therefor?
Held: The evident purpose of the law in requiring the filing of certificate of candidacy and
in fixing the time limit therefor are: (a) to enable the voters to know, at least sixty days
before the regular election, the candidates among whom they are to make the choice, and
(b) to avoid confusion and inconvenience in the tabulation of the votes cast. For if the law
did not confine the choice or election by the voters to the duly registered candidates, there
might be as many persons voted for as there are voters, and votes might be cast even for
unknown or fictitious persons as a mark to identify the votes in favor of a candidate for
another office in the same election. (Miranda v. Abaya, G.R. No. 136351, July 28,
1999)
309. May a disqualified candidate and whose certificate of candidacy was denied due
course and/or canceled by the Comelec be validly substituted?
Held: Even on the most basic and fundamental principles, it is readily understood that the
concept of a substitute presupposes the existence of the person to be substituted, for how
can a person take the place of somebody who does not exist or who never was. The Court
has no other choice but to rule that in all instances enumerated in Section 77 of the
Omnibus Election Code, the existence of a valid certificate of candidacy seasonably filed is a
requisite sine qua non.
All told, a disqualified candidate may only be substituted if he had a valid certificate of
candidacy in the first place because, if the disqualified candidate did not have a valid and
seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person
was not a candidate, he cannot be substituted under Section 77 of the Code. (Miranda v.
Abaya, G.R. No. 136351, July 28, 1999, en Banc [Melo])
310. Should the votes cast for the substituted candidate be considered votes for the
substitute candidate?
Answer: Republic Act No. 9006, otherwise known as the Fair Election Act, provides in
Section 12 thereof: In case of valid substitutions after the official ballots have been printed,
the votes cast for the substituted candidates shall be considered as stray votes but shall not
invalidate the whole ballot. For this purpose, the official ballots shall provide spaces where
the voters may write the name of the substitute candidates if they are voting for the latter:
Provided, however, That if the substitute candidate is of the same family name, this
provision shall not apply.
311.

What is the effect of the filing of certificate of candidacy by elective officials?

Answer: COMELEC Resolution No. 3636, promulgated March 1, 2001, implementing the
Fair Election Act (R.A. No. 9006) provides in Section 26 thereof: any elective official,
whether national or local, who has filed a certificate of candidacy for the same or any other
office shall not be considered resigned from his office.
Note that Section 67 of the Omnibus Election Code and the first proviso in the third
paragraph of Section 11 of Republic Act No. 8436 which modified said Section 67, were

expressly repealed and rendered ineffective, respectively, by Section 14 (Repealing Clause)

of The Fair Election Act (R.A. No. 9006).
312. What kind of material misrepresentation is contemplated by Section 78 of the
Omnibus Election Code as a ground for disqualification of a candidate? Does it include the
use of surname?
Held: Therefore, it may be concluded that the material misrepresentation contemplated by
Section 78 of the (Omnibus Election) Code refers to qualifications for elective office. This
conclusion is strengthened by the fact that the consequences imposed upon a candidate
guilty of having made a false representation in his certificate of candidacy are grave to
prevent the candidate from running or, if elected, from serving, or to prosecute him for
violation of the election laws. It could not have been the intention of the law to deprive a
person of such a basic and substantial political right to be voted for a public office upon just
any innocuous mistake.
[A]side from the requirement of materiality, a false representation under Section 78 must
consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise
render a candidate ineligible. In other words, it must be made with an intention to deceive
the electorate as to ones qualifications for public office. The use of a surname, when not
intended to mislead or deceive the public as to ones identity, is not within the scope of the
provision. (Victorino Salcedo II v. COMELEC, G.R. No. 135886, Aug. 16, 1999, En
Banc [Gonzaga-Reyes])
313. Who has authority to declare failure of elections and the calling of special election?
What are the three instances where a failure of election may be declared?
Held: The COMELECs authority to declare failure of elections is provided in our election
laws. Section 4 of RA 7166 provides that the Comelec sitting en banc by a majority vote of
its members may decide, among others, the declaration of failure of election and the calling
of special election as provided in Section 6 of the Omnibus Election Code. X x x
There are three instances where a failure of election may be declared, namely, (a) the
election in any polling place has not been held on the date fixed on account of force
majeure, violence, terrorism, fraud or other analogous causes; (b) the election in any polling
place has been suspended before the hour fixed by law for the closing of the voting on
account of force majeure, violence, terrorism, fraud or other analogous causes; or (c) after
the voting and during the preparation and transmission of the election returns or in the
custody or canvass thereof, such election results in a failure to elect on account of force
majeure, violence, terrorism, fraud or other analogous causes. In these instances, there is a
resulting failure to elect. This is obvious in the first two scenarios, where the election was
not held and where the election was suspended. As to the third scenario, where the
preparation and the transmission of the election returns give rise to the consequence of
failure to elect, it must x x x, be interpreted to mean that nobody emerged as a winner.
(Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31, 2000, En Banc [Quisumbing])
314. What are the two conditions that must concur before the COMELEC can act on a
verified petition seeking to declare a afailure of election?
Held: Before the COMELEC can act on a verified petition seeking to declare a failure of
election two conditions must concur, namely: (1) no voting took place in the precinct or

precincts on the date fixed by law, or even if there was voting, the election resulted in a
failure to elect; and (2) the votes not cast would have affected the result of the election.
Note that the cause of such failure of election could only be any of the following: force
majeure, violence, terrorism, fraud or other analogous causes.
Thus, in Banaga, Jr. v. COMELEC (336 SCRA 701, July 31, 2000, En Banc [Quisumbing]),
the SC held:
We have painstakingly examined the petition filed by petitioner Banaga before the
Comelec. But we found that petitioner did not allege at all that elections were either not
held or suspended. Neither did he aver that although there was voting, nobody was elected.
On the contrary, he conceded that an election took place for the office of vice-mayor of
Paranaque City, and that private respondent was, in fact, proclaimed elected to that post.
While petitioner contends that the election was tainted with widespread anomalies, it must
be noted that to warrant a declaration of failure of election the commission of fraud must be
such that it prevented or suspended the holding of an election, or marred fatally the
preparation and transmission, custody and canvass of the election returns. These essential
facts ought to have been alleged clearly by the petitioner below, but he did not.
315.

Cite instances when Comelec may or may not validly declare failure of elections.

Held: In Mitmug v. COMELEC (230 SCRA 54 [1994]), petitioner instituted with the COMELEC
an action to declare failure of election in forty-nine precincts where less than a quarter of the
electorate were able to cast their votes. He also lodged an election protest with the
Regional Trial Court disputing the result of the election in all precincts in his municipality.
The Comelec denied motu proprio and without due notice and hearing the petition to declare
failure of election despite petitioners argument that he has meritorious grounds in support
thereto, that is, massive disenfranchisement of voters due to terrorism. On review, we ruled
that the Comelec did not gravely abuse its discretion in denying the petition. It was not
proven that no actual voting took place. Neither was it shown that even if there was voting,
the results thereon would be tantamount to failure to elect. Considering that there is no
concurrence of the conditions seeking to declare failure of election, there is no longer need
to receive evidence on alleged election irregularities.
In Sardea v. COMELEC (225 SCRA 374 [1993]), all election materials and paraphernalia with
the municipal board of canvassers were destroyed by the sympathizers of the losing
mayoralty candidate. The board then decided to use the copies of election returns furnished
to the municipal trial court. Petitioner therein filed a petition to stop the proceedings of the
board of canvassers on the ground that it had no authority to use said election returns
obtained from the municipal trial court. The petition was denied. Next, he filed a petition
assailing the composition of the board of canvassers. Despite that petition, the board of
canvassers proclaimed the winning candidates. Later on, petitioner filed a petition to
declare a failure of election alleging that the attendant facts would justify declaration of
such failure.
On review, we ruled that petitioners first two actions involved preproclamation controversies which can no longer be entertained after the winning candidates
have been proclaimed. Regarding the petition to declare a failure of election, we held that

the destruction and loss of copies of election returns intended for the municipal board of
canvassers on account of violence is not one of the causes that would warrant the
declaration of failure of election. The reason is that voting actually took place as scheduled
and other valid election returns still existed. Moreover, the destruction or loss did not affect
the result of the election. We also declared that there is failure of elections only when the
will of the electorate has been muted and cannot be ascertained. If the will of the people is
determinable, the same must as far as possible be respected.
Xxx
In Loong v. COMELEC (257 SCRA 1 [1996]), the petition for annulment of election results or
to declare failure of elections in Parang, Sulu, on the ground of statistical improbability and
massive fraud was granted by the COMELEC. Even before the technical examination of
election documents was conducted, the Comelec already observed badges of fraud just by
looking at the election results in Parang. Nevertheless, the Comelec dismissed the petition
for annulment of election results or to declare failure of elections in the municipalities of
Tapul, Panglima Estino, Pata, Siasi and Kalinggalang Calauag. The COMELEC dismissed the
latter action on ground of untimeliness of the petition, despite a finding that the same
badges of fraud evident from the results of the election based on the certificates of canvass
of votes in Parang, are also evident in the election results of the five mentioned
municipalities. We ruled that Comelec committed grave abuse of discretion in dismissing
the petition as there is no law which provides for a reglementary period to file annulment of
elections when there is yet no proclamation. The election resulted in a failure to elect on
account of fraud. Accordingly, we ordered the Comelec to reinstate the aforesaid petition.
Those circumstances, however, are not present in this case, so that reliance on Loong by
petitioner Banaga is misplaced. (Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31, 2000,
En Banc [Quisumbing])
316. What acts of a Division of the COMELEC may be subject of a motion for
reconsideration of the COMELEC en banc?
Held: Section 5, Rule 19 of the COMELEC Rules of Procedure, provides:
SEC. 5. How Motion for Reconsideration Disposed of. - Upon the filing of a motion to
reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned
shall, within twenty-four (24) hours from the filing thereof, notify the presiding
Commissioner. The latter shall within two (2) days thereafter certify the case to the
Commission en banc.
Under the above-quoted rule, the acts of a Division that are subject of a motion for
reconsideration must have a character of finality before the same can be elevated to the
COMELEC en banc. The elementary rule is that an order is final in nature if it completely
disposes of the entire case. But if there is something more to be done in the case after its
issuance, that order is interlocutory.
As correctly pointed out by public respondent in its assailed order of November 29,
1999, the October 11, 1999 did not dispose of the case completely as there is something
more to be done which is to decide the election protest. As such, it is the herein public
respondent (Second Division of the COMELEC) which issued the interlocutory order of
October 11, 1999 that should resolve petitioners motion for reconsideration, not the

COMELEC en banc (Bulaong v. COMELEC, First Division, 220 SCRA 745, 749 [1993]).
Accordingly, the applicable rule on the subject is Section 5(c), Rule 3 of the COMELEC Rules
of Procedure, which states:
Rule 3, Section 5(c). Any motion to reconsider a decision, resolution, order or ruling of a
Division shall be resolved by the Commission en banc except motions on interlocutory
orders of the division, which shall be resolved by the divisions which issued the order.
That only final orders of a Division may be raised before the COMELEC en banc is in
accordance with Article IX-C, Section 3 of the Constitution which mandates that only motions
for reconsideration of final decisions shall be decided by the Commission on Elections en
banc, thus:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of
procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such
election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be
decided by the Commission en banc.
It bears stressing that under this constitutional provision, the COMELEC en banc shall
decide motions for reconsideration only of decisions of a Division, meaning those acts of
final character. Clearly, the assailed order denying petitioner's demurrer to evidence, being
interlocutory, may not, be resolved by the COMELEC en banc (Ambil, Jr. v. Commission on
elections, G.R. No. 143398, Oct. 25, 2000, 344 SCRA 358). (Gementiza v. Commission on
Elections, 353 SCRA 724, March 6, 2001, En Banc [Sandoval-Gutierrez])
317. Is a petition to declare failure of election different from a petition to annul the
election results?
Held: A prayer to declare failure of elections and a prayer to annul the election results x x x
are actually of the same nature. Whether an action is for declaration of failure of elections
or for annulment of election results, based on allegations of fraud, terrorism, violence or
analogous, the Omnibus Election Code denominates them similarly. (Banaga, Jr. v.
COMELEC, 336 SCRA 701, July 31, 2000, En Banc [Quisumbing])
318. What conditions must concur before the Comelec can act on a verified petition
seeking to declare a failure of election? Is low turn-out of voters enough basis to grant the
petition?
Held: Before COMELEC can act on a verified petition seeking to declare a failure of
election, two (2) conditions must concur: first, no voting has taken place in the precinct or
precincts on the date fixed by law or, even if there was voting, the election nevertheless
results in failure to elect; and, second, the votes not cast would affect the result of the
election.
There can be failure of election in a political unit only if the will of the majority has been
defiled and cannot be ascertained. But, if it can be determined, it must be accorded
respect. After all, there is no provision in our election laws which requires that a majority of
registered voters must cast their votes. All the law requires is that a winning candidate must
be elected by a plurality of valid votes, regardless of the actual number of ballots cast.
Thus, even if less than 25% of the electorate in the questioned precincts cast their votes, the
same must still be respected. (Mitmug v. COMELEC, 230 SCRA 54, Feb. 10, 1994, En
Banc [Bellosillo])

319.

Distinguish a petition to declare failure of elections from an election protest.

Held: While petitioner may have intended to institute an election protest by praying that
said action may also be considered an election protest, in our view, petitioners action is a
petition to declare a failure of elections or annul election results. It is not an election
protest.
First, his petition before the Comelec was instituted pursuant to Section 4 of Republic Act No.
7166 in relation to Section 6 of the Omnibus Election Code. Section 4 of RA 7166 refers to
postponement, failure of election and special elections while Section 6 of the Omnibus
Election Code relates to failure of election. It is simply captioned as Petition to Declare
Failure of Elections and/or For Annulment of Elections.
Second, an election protest is an ordinary action while a petition to declare a failure of
elections is a special action under the 1993 Comelec Rules of Procedure as amended. An
election protest is governed by Rule 20 on ordinary actions, while a petition to declare failure
of elections is covered by Rule 26 under special actions.
In this case, petitioner filed his petition as a special action and paid the corresponding fee
therefor. Thus, the petition was docketed as SPA-98-383. This conforms to petitioners
categorization of his petition as one to declare a failure of elections or annul election results.
In contrast, an election protest is assigned a docket number starting with EPC, meaning
election protest case.
Third, petitioner did not comply with the requirements for filing an election protest. He
failed to pay the required filing fee and cash deposits for an election protest. Failure to pay
filing fees will not vest the election tribunal jurisdiction over the case. Such procedural lapse
on the part of a petitioner would clearly warrant the outright dismissal of his action.
Fourth, an en banc decision of Comelec in an ordinary action becomes final and executory
after thirty (30) days from its promulgation, while an en banc decision in a special action
becomes final and executory after five (5) days from promulgation, unless restrained by the
Supreme Court (Comelec Rules of Procedure, Rule 18, Section 13 [a], [b]). For that reason, a
petition cannot be treated as both an election protest and a petition to declare failure of
elections.
Fifth, the allegations in the petition decisively determine its nature. Petitioner alleged that
the local elections for the office of vice-mayor in Paranaque City held on May 11, 1998,
denigrates the true will of the people as it was marred with widespread anomalies on
account of vote buying, flying voters and glaring discrepancies in the election returns. He
averred that those incidents warrant the declaration of a failure of elections.
Given these circumstances, public respondent cannot be said to have gravely erred in
treating petitioners action as a petition to declare failure of elections or to annul election
results. (Banaga, Jr. v. COMELEC, 336 SCRA 701, July 31, 2000, En Banc
[Quisumbing])
320. What are pre-proclamation cases, and exceptions thereto?
jurisdiction over pre-proclamation cases?

What Court has

Held: As a general rule, candidates and registered political parties involved in an election
are allowed to file pre-proclamation cases before the Comelec. Pre-proclamation cases refer
to any question pertaining to or affecting the proceedings of the board of canvassers which
may be raised by any candidate or by any registered political party or coalition of political

parties before the board or directly with the Commission, or any matter raised under
Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody
and appreciation of election returns (Section 241, Omnibus Election Code). The Comelec has
exclusive jurisdiction over all pre-proclamation controversies (Section 242, supra). As an
exception, however, to the general rule, Section 15 of Republic Act 7166 prohibits
candidates in the presidential, vice-presidential, senatorial and congressional elections from
filing pre-proclamation cases. It states:
Sec. 15. Pre-Proclamation Cases Not Allowed in Elections for President, Vice-President,
Senator, and Members of the House of Representatives. - For purposes of the elections for
President, Vice-President, Senator and Member of the House of Representatives, no preproclamation cases shall be allowed on matters relating to the preparation, transmission,
receipt, custody and appreciation of election returns or the certificates of canvass, as the
case may be. However, this does not preclude the authority of the appropriate canvassing
body motu proprio or upon written complaint of an interested person to correct manifest
errors in the certificate of canvass or election returns before it.
The prohibition aims to avoid delay in the proclamation of the winner in the election, which
delay might result in a vacuum in these sensitive posts. The law, nonetheless, provides an
exception to the exception. The second sentence of Section 15 allows the filing of petitions
for correction of manifest errors in the certificate of canvass or election returns even in
elections for president, vice-president and members of the House of Representatives for the
simple reason that the correction of manifest error will not prolong the process of canvassing
nor delay the proclamation of the winner in the election. The rule is consistent with and
complements the authority of the Comelec under the Constitution to "enforce and
administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum and recall" (Section 2[1], Article IX-C, 1987 Constitution) and its power
to "decide, except those involving the right to vote, all questions affecting elections."
(Section 2[3], Article IX-C, supra) (Federico S. Sandoval v. COMELEC, G.R. No. 133842,
Jan. 26, 2000 [Puno])
321. Who has authority to rule on petitions for correction of manifest error in the
certificate of canvass or election returns?
Held: The authority to rule on petitions for correction of manifest error is vested in the
Comelec en banc. Section 7 of Rule 27 of the 1993 COMELEC Rules of Procedure (took effect
on February 15, 1993) provides that if the error is discovered before proclamation, the board
of canvassers may motu proprio, or upon verified petition by any candidate, political party,
organization or coalition of political parties, after due notice and hearing, correct the errors
committed. The aggrieved party may appeal the decision of the board to the Commission
and said appeal shall be heard and decided by the Commission en banc. Section 5,
however, of the same rule states that a petition for correction of manifest error may be filed
directly with the Commission en banc provided that such errors could not have been
discovered during the canvassing despite the exercise of due diligence and proclamation of
the winning candidate had already been made. (Federico S. Sandoval v. COMELEC, G.R.
No. 133842, Jan. 26, 2000 [Puno])
322.

Distinguish Election Protest from Petition for Quo Warranto.

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

the plurality of the legal votes and therefore is entitled to hold the office. (Dumayas, Jr. v.
COMELEC, G.R. Nos. 141952-53, April 20, 2001, En Banc [Quisumbing])
323.

What is a counter-protest? When should it be filed?

Held: Under the Comelec Rules of Procedure, the protestee may incorporate in his answer a
counter-protest. It has been said that a counter-protest is tantamount to a counterclaim in a
civil action and may be presented as a part of the answer within the time he is required to
answer the protest, i.e., within five (5) days upon receipt of the protest, unless a motion for
extension is granted, in which case it must be filed before the expiration of the extended
time.
As early as in the case of Arrieta v. Rodriguez (57 Phil. 717), the SC had firmly settled the
rule that the counter-protest must be filed within the period provided by law, otherwise, the
forum loses its jurisdiction to entertain the belatedly filed counter-protest.
(Kho v.
COMELEC, 279 SCRA 463, Sept. 25, 1997, En Banc [Torres])
324. What is the effect of death of a party in an election protest? Should it warrant the
dismissal of the protest?
Held: An election protest involves both the private interests of the rival candidates and the
public interest in the final determination of the real choice of the electorate, and for this
reason, an election contest necessarily survives the death of the protestant or the protestee.
It is true that a public office is personal to the public officer and is not a property
transmissible to his heirs upon death, thus, upon the death of the incumbent, no heir of his
may be allowed to continue holding his office in his place. But while the right to a public
office is personal and exclusive to the public officer, an election protest is not purely
personal and exclusive to the protestant or to the protestee such that after the death of
either would oust the court of all authority to continue the protest proceedings. An election
contest, after all, involves not merely conflicting private aspirations but is imbued with
paramount public interests. The death of the protestant neither constitutes a ground for the
dismissal of the contest nor ousts the trial court of its jurisdiction to decide the election
contest. (De Castro v. COMELEC, 267 SCRA 806, Feb. 7, 1997)
325. Does the fact that one or a few candidates in an election got zero votes in one or a
few precincts adequately support a finding that the election returns are statistically
improbable?
Held: From experiences in past elections, it is possible for one candidate or even a few
candidates to get zero votes in one or a few precincts.
Standing alone and without more, the bare fact that a candidate for public office received
zero votes in one or two precincts can not adequately support a finding that the subject
election returns are statistically improbable. A no-vote for a particular candidate in election
returns is but one strand in the web of circumstantial evidence that those election returns
were prepared under duress, force and intimidation. In the case of Una Kibad v. Comelec
(23 SCRA 588 [1968]), the SC warned that the doctrine of statistical improbability must be
viewed restrictively, the utmost care being taken lest in penalizing the fraudulent and
corrupt practices, innocent voters become disenfranchised, a result which hardly commends
itself. Moreover, the doctrine of statistical improbability involves a question of fact and a
more prudential approach prohibits its determination ex parte. (Arthur V. Velayo v.
COMELEC, G.R. No. 135613, March 9, 2000, En Banc [Puno])
326. What Court has jurisdiction over election protests and quo warranto proceedings
involving Sangguniang Kabataan (SK) elections?

Held: Any contest relating to the election of members of the Sangguniang Kabataan
(including the chairman) whether pertaining to their eligibility or the manner of their
election is cognizable by MTCs, MCTCs, and MeTCs. Section 6 of Comelec Resolution No.
2824 which provides that cases involving the eligibility or qualification of SK candidates shall
be decided by the City/Municipal Election Officer whose decision shall be final, applies only
to proceedings before the election. Before proclamation, cases concerning eligibility of SK
officers and members are cognizable by the Election Officer. But after the election and
proclamation, the same cases become quo warranto cases cognizable by MTCs, MCTCs, and
MeTCs. The distinction is based on the principle that it is the proclamation which marks off
the jurisdiction of the courts from the jurisdiction of election officials.
The case of Jose M. Mercado v. Board of Election Supervisors (243 SCRA 423, G.R. No.
109713, April 6, 1995), in which this Court ruled that election protests involving SK elections
are to be determined by the Board of Election Supervisors was decided under the aegis of
Comelec Resolution No. 2499, which took effect on August 27, 1992. However, Comelec
Resolution No. 2824, which took effect on February 6, 1996 and was passed pursuant to R.A.
7808, in relation to Arts. 252-253 of the Omnibus Election Code, has since transferred the
cognizance of such cases from the Board of Election Supervisors to the MTCs, MCTCs and
MeTCs. Thus, the doctrine of Mercado is no longer controlling. (Francis King L. Marquez
v. COMELEC, G.R. No. 127318, Aug. 25, 1999, En Banc [Purisima])
327. What acts of a Division of the COMELEC may be subject of a motion for
reconsideration of the COMELEC en banc?
Held: Section 5, Rule 19 of the COMELEC Rules of Procedure, provides:
SEC. 5. How Motion for Reconsideration Disposed of. - Upon the filing of a motion to
reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned
shall, within twenty-four (24) hours from the filing thereof, notify the presiding
Commissioner. The latter shall within two (2) days thereafter certify the case to the
Commission en banc.
Under the above-quoted rule, the acts of a Division that are subject of a motion for
reconsideration must have a character of finality before the same can be elevated to the
COMELEC en banc. The elementary rule is that an order is final in nature if it completely
disposes of the entire case. But if there is something more to be done in the case after its
issuance, that order is interlocutory.
As correctly pointed out by public respondent in its assailed order of November 29,
1999, the October 11, 1999 did not dispose of the case completely as there is something
more to be done which is to decide the election protest. As such, it is the herein public
respondent (Second Division of the COMELEC) which issued the interlocutory order of
October 11, 1999 that should resolve petitioners motion for reconsideration, not the
COMELEC en banc (Bulaong v. COMELEC, First Division, 220 SCRA 745, 749 [1993]).
Accordingly, the applicable rule on the subject is Section 5(c), Rule 3 of the COMELEC Rules
of Procedure, which states:
Rule 3, Section 5(c). Any motion to reconsider a decision, resolution, order or ruling of a
Division shall be resolved by the Commission en banc except motions on interlocutory
orders of the division, which shall be resolved by the divisions which issued the order.
That only final orders of a Division may be raised before the COMELEC en banc is in
accordance with Article IX-C, Section 3 of the Constitution which mandates that only motions

for reconsideration of final decisions shall be decided by the Commission on Elections en

banc, thus:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of
procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such
election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be
decided by the Commission en banc.
It bears stressing that under this constitutional provision, the COMELEC en banc shall
decide motions for reconsideration only of decisions of a Division, meaning those acts of
final character. Clearly, the assailed order denying petitioner's demurrer to evidence, being
interlocutory, may not, be resolved by the COMELEC en banc (Ambil, Jr. v. Commission on
elections, G.R. No. 143398, Oct. 25, 2000, 344 SCRA 358). (Gementiza v. Commission on
Elections, 353 SCRA 724, March 6, 2001, En Banc [Sandoval-Gutierrez])

THE LAW OF PUBLIC CORPORATIONS

328.

What is an autonomous region?

Answer:
An autonomous region consists of provinces, cities, municipalities, and
geographical areas sharing common and distinctive historical and cultural heritage,
economic and social structures, and other relevant characteristics within the framework of
the Constitution and the national sovereignty as well as the territorial integrity of the
Republic of the Philippines. (Sec. 15, Art. X, 1987 Constitution)
329. What are administrative regions? Are they considered territorial and political
subdivisions of the State? Who has the power to create administrative regions?
Held: Administrative regions are mere groupings of contiguous provinces for administrative
purposes.
They are not territorial and political subdivisions like provinces, cities,
municipalities and barangays. While the power to merge administrative regions is not
expressly provided for in the Constitution, it is a power which has traditionally been lodged
with the President to facilitate the exercise of the power of general supervision over local
governments. (Abbas v. COMELEC, 179 SCRA 287, Nov. 10, 1989, En Banc [Cortes])
329. Is there a conflict between the power of the President to merge administrative
regions with the constitutional provision requiring a plebiscite in the merger of local
government units?
Held: There is no conflict between the power of the President to merge administrative
regions with the constitutional provision requiring a plebiscite in the merger of local
government units because the requirement of a plebiscite in a merger expressly applies only
to provinces, cities, municipalities or barangays, not to administrative regions. (Abbas v.
COMELEC, 179 SCRA 287, Nov. 10, 1989, En Banc [Cortes])
330. What is the Metropolitan Manila Development Authority (MMDA)? Is it a local
government unit or public corporation endowed with legislative power? May it validly
exercise police power? How is it distinguished from the former Metro Manila Council (MMC)
created under PD No. 824?

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

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

units technical assistance in the preparation of local development plans. Any semblance of
legislative power it had was confined to a review [of] legislation proposed by the local
legislative assemblies to ensure consistency among local governments and with the
comprehensive development plan of Metro Manila, and to advise the local governments
accordingly.
When R.A. No. 7924 took effect, Metropolitan Manila became a special development and
administrative region and the MMDA a special development authority whose functions
were without prejudice to the autonomy of the affected local government units. The
character of the MMDA was clearly defined in the legislative debates enacting its charter.
Xxx
Clearly, the MMDA is not a political unit of government. The power delegated to the MMDA
is that given to the Metro Manila Council to promulgate administrative rules and regulations
in the implementation of the MMDAs functions. There is no grant of authority to enact
ordinances and regulations for the general welfare of the inhabitants of the metropolis. This
was explicitly stated in the last Committee deliberations prior to the bills presentation to
Congress. X x x
It is thus beyond doubt that the MMDA is not a local government unit or a public corporation
endowed with legislative power. It is not even a special metropolitan political subdivision
as contemplated in Section 11, Article X of the Constitution. The creation of a special
metropolitan political subdivision requires the approval by a majority of the votes cast in a
plebiscite in the political units directly affected. R.A. No. 7924 was not submitted to the
inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official
elected by the people, but appointed by the President with the rank and privileges of a
cabinet member. In fact, part of his function is to perform such other duties as may be
assigned to him by the President, whereas in local government units, the President merely
exercises supervisory authority. This emphasizes the administrative character of the MMDA.
Clearly then, the MMC under P.D. No. 824 is not the same entity as the MMDA under R.A. No.
7924. Unlike the MMC, the MMDA has no power to enact ordinances for the welfare of the
community. It is the local government units, acting through their respective legislative
councils, that possess legislative power and police power.
In the case at bar, the
Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution ordering
the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal x x
x. (MMDA v. Bel-Air Village Association, Inc., 328 SCRA 836, March 27, 2000, 1 st
Div. [Puno])
331.

Discuss the concept of local autonomy.

Held: Autonomy is either decentralization of administration or decentralization of power.

There is decentralization of administration when the central government delegates
administrative powers to political subdivisions in order to broaden the base of government
and in the process to make local governments more responsive and accountable, and ensure
their fullest development as self-reliant communities and make them more effective partners
in the pursuit of national development and social progress. At the same time, it relieves the
central government of the burden of managing local affairs and enables it to concentrate on
national concerns. The President exercises general supervision over them, but only to
ensure that local affairs are administered according to law. He has no control over their acts
in the sense that he can substitute their judgments with his own.
Decentralization of power, on the other hand, involves an abdication of political power in
favor of local government units declared autonomous. In that case, the autonomous

government is free to chart its own destiny and shape its own future with minimum
intervention from central authorities. According to a constitutional author, decentralization
of power amounts to self-immolation, since in that event, the autonomous government
becomes accountable not to the central authorities but to its constituency. (Limbona v.
Mangelin, 170 SCRA 786, Feb. 28, 1989, En Banc [Sarmiento])
332. What kind of local autonomy is contemplated by the Constitution? What about the
kind of autonomy contemplated insofar as the autonomous regions are concerned?
Held: 1. The principle of local autonomy under the 1987 Constitution simply means
decentralization. It does not make local governments sovereign within the state or an
imperium in imperio. Remaining to be an intra sovereign subdivision of one sovereign
nation, but not intended, however, to be an imperium in imperio, the local government unit
is autonomous in the sense that it is given more powers, authority, responsibilities and
resources. Power which used to be highly centralized in Manila, is thereby deconcentrated,
enabling especially the peripheral local government units to develop not only at their own
pace and discretion but also with their own resources and assets. (Alvarez v. Guingona,
Jr., 252 SCRA 695, Jan. 31, 1996, En Banc [Hermosisima])
2. The constitutional guarantee of local autonomy in the Constitution refers to the
administrative autonomy of local government units or, cast in more technical language, the
decentralization of government authority.
On the other hand, the creation of autonomous regions in Muslim Mindanao and the
Cordilleras, which is peculiar to the 1987 Constitution, contemplates the grant of political
autonomy and not just administrative autonomy to these regions. Thus, the provision in the
Constitution for an autonomous regional government with a basic structure consisting of an
executive department and a legislative assembly and special courts with personal, family
and property law jurisdiction in each of the autonomous regions. (Cordillera Broad
Coalition v. COA, 181 SCRA 495, Jan. 29, 1990, En Banc [Cortes])
333. Whether or not the Internal Revenue allotments (IRAs) are to be included in the
computation of the average annual income of a municipality for purposes of its conversion
into an independent component city?
Held: Yes. The IRAs are items of income because they form part of the gross accretion of
the funds of the local government unit. The IRAs regularly and automatically accrue to the
local treasury without need of any further action on the part of the local government unit.
They thus constitute income which the local government can invariably rely upon as the
source of much needed funds.
Xxx
[T]o reiterate, IRAs are a regular, recurring item of income; nil is there a basis, too, to
classify the same as a special fund or transfer, since IRAs have a technical definition and
meaning all its own as used in the Local Government Code that unequivocally makes it
distinct from special funds or transfers referred to when the Code speaks of funding support
from the national government, its instrumentalities and government-owned or controlled
corporations.
Thus, Department of Finance Order No. 35-93 correctly encapsulizes the full import of the
above disquisition when it defined ANNUAL INCOME to be revenues and receipts realized by
provinces, cities and municipalities from regular sources of the Local General Fund including
the internal revenue allotment and other shares provided for in Sections 284, 290 and 291
of the Code, but exclusive of non-recurring receipts, such as other national aids, grants,

financial assistance, loan proceeds, sales of fixed assets, and similar others. Such order,
constituting executive or contemporaneous construction of a statute by an administrative
agency charged with the task of interpreting and applying the same, is entitled to full
respect and should be accorded great weight by the courts, unless such construction is
clearly shown to be in sharp conflict with the Constitution, the governing statute, or other
laws. (Alvarez v. Guingona, Jr., 252 SCRA 695, Jan. 31, 1996, En Banc
[Hermosisima, Jr., J.])
334. State the importance of drawing with precise strokes the territorial boundaries of a
local government unit.
Held: The importance of drawing with precise strokes the territorial boundaries of a local
unit of government cannot be overemphasized. The boundaries must be clear for they
define the limits of the territorial jurisdiction of a local government unit. It can legitimately
exercise powers of government only within the limits of its territorial jurisdiction. Beyond
these limits, its acts are ultra vires. Needless to state, any uncertainty in the boundaries of
local government units will sow costly conflicts in the exercise of governmental powers
which ultimately will prejudice the peoples welfare.
This is the evil sought to be avoided
by the Local Government Code in requiring that the land area of a local government unit
must be spelled out in metes and bounds, with technical descriptions. (Mariano, Jr. v.
COMELEC, 242 SCRA 211, 217-219, Mar. 7, 1995, En Banc [Puno])
335. R.A. 7854 was enacted converting the Municipality of Makati into a highly urbanized
city. Section 2 thereof did not provide for a cadastral type of description of its boundary but
merely provided that the boundary of the new city of Makati shall be the boundary of the
present municipality of Makati. Petitioners contended in a petition brought the SC that R.A.
7854 was defective because it did not comply with the requirement in the Local Government
Code that the territorial jurisdiction of newly created or converted cities should be
described by metes and bounds, with technical descriptions. Note that at the time the law
was enacted, there was a pending boundary dispute between Makati and one of its
neighbors, Taguig, before the regular court. Should the contention be upheld?
Held: Given the facts of the cases at bench, we cannot perceive how this evil (uncertainty
in the boundaries of local government units will sow costly conflicts in the exercise of
government powers which ultimately will prejudice the peoples welfare) can be brought
about by the description made in Section 2 of R.A. No. 7854. Petitioners have not
demonstrated that the delineation of the land area of the proposed City of Makati will cause
confusion as to its boundaries. We note that said delineation did not change even by an
inch the land area previously covered by Makati as a municipality. Section 2 did not add,
subtract, divide, or multiply the established land area of Makati. In language that cannot be
any clearer, Section 2 stated that the citys land area shall comprise the present territory of
the municipality.
The deliberations of Congress will reveal that there is a legitimate reason why the land area
of the proposed City of Makati was not defined by metes and bounds, with technical
descriptions. At the time of the consideration of R.A. No. 7854, the territorial dispute
between the municipalities of Makati and Taguig over Fort Bonifacio was under court
litigation. Out of a becoming sense of respect to a co-equal department of government, the
legislators felt that the dispute should be left to the courts to decide. They did not want to
foreclose the dispute by making a legislative finding of fact which could decide the issue.
This would have ensued if they defined the land area of the proposed city by its exact metes
and bounds, with technical descriptions. We take judicial notice of the fact that Congress
has also refrained from using the metes and bounds description of the land area of other
local government units with unsettled boundary disputes.

We hold that the existence of a boundary dispute does not per se present an insurmountable
difficulty which will prevent Congress from defining with reasonable certitude the territorial
jurisdiction of a local government unit. In the cases at bench, Congress maintained the
existing boundaries of the proposed City of Makati but as an act of fairness, made them
subject to the ultimate resolution by the courts. Considering these peculiar circumstances,
we are not prepared to hold that Section 2 of R.A. No. 7854 is unconstitutional. We sustain
the submission of the Solicitor General in this regard, viz:
Going now to Sections 7 and 450 of the Local Government Code, it is beyond cavil that the
requirement started therein, viz: the territorial jurisdiction of newly created or converted
cities should be described by metes and bounds, with technical descriptions was made in
order to provide a means by which the area of said cities may be reasonably ascertained. In
other words, the requirement on metes and bounds was meant merely as a tool in the
establishment of local government units. It is not an end in itself. Ergo, so long as the
territorial jurisdiction of a city may be reasonably ascertained, i.e., by referring to common
boundaries with neighboring municipalities, as in this case, then, it may be concluded that
the legislative intent behind the law has been sufficiently served.
Certainly, Congress did not intend that laws creating new cities must contain therein
detailed technical descriptions similar to those appearing in Torrens titles, as petitioners
seem to imply. To require such description in the law as a condition sine qua non for its
validity would be to defeat the very purpose which the Local Government Code seeks to
serve. The manifest intent of the Code is to empower local government units and to give
them their rightful due. It seeks to make local governments more responsive to the needs of
their constituents while at the same time serving as a vital cog in national development. To
invalidate R.A. No. 7854 on the mere ground that no cadastral type of description was used
in the law would serve the letter but defeat the spirit of the Code. It then becomes a case of
the master serving the slave, instead of the other way around. This could not be the
intendment of the law. X x x
(Mariano, Jr. v. COMELEC, 242 SCRA 211, 217-219, Mar. 7, 1995, En Banc [Puno])
336.

What is the meaning of "devolution"?

Answer: The term "devolution" refers to the act by which the National government confers
power and authority upon the various local government units to perform specific functions
and responsibilities. (Sec. 17[e], 2nd par., Local Government Code)
337. Have the powers of the Land Transportation Office (LTO) to register, tricycles in
particular, as well as to issue licenses for the driving thereof, been devolved likewise to local
government units?
Held: Only the powers of the Land Transportation Franchising Regulatory Board (LTFRB) to
regulate the operation of tricycles-for-hire and to grant franchises for the operation thereof
have been devolved to local governments under the Local Government Code. Clearly
unaffected by the Local Government Code are the powers of the LTO under R.A. No. 4136
requiring the registration of all kinds of motor vehicles used or operated on or upon any
public highway in the country. This can be gleaned from the explicit language of the
statute itself, as well as the corresponding guidelines issued by the DOTC. In fact, even the
power of LGUs to regulate the operation of tricycles and to grant franchises for the operation
thereof is still subject to the guidelines prescribed by the DOTC. (LTO v. City of Butuan,
G.R. No. 131512, Jan. 20, 2000, 3rd Div. [Vitug])
338. Distinguish the power to grant a license or permit to do business and the power to
issue a license to engage in the practice of a particular profession.

Held: Distinction must be made between the grant of a license or permit to do business
and the issuance of a license to engage in the practice of a particular profession. The first is
usually granted by the local authorities and the second is issued by the Board or
Commission tasked to regulate the particular profession. A business permit authorizes the
person, natural or otherwise, to engage in business or some form of commercial activity. A
professional license, on the other hand, is the grant of authority to a natural person to
engage in the practice or exercise of his or her profession.
In the case at bar, what is sought by petitioner (Acebedo Optical Company, Inc.) from
respondent City Mayor is a permit to engage in the business of running an optical shop. It
does not purport to seek a license to engage in the practice of optometry as a corporate
body or entity, although it does have in its employ, persons who are duly licensed to practice
optometry by the Board of Examiners in Optometry.
Xxx
In the present case, the objective of the imposition of subject conditions on petitioners
business permit could be attained by requiring the optometrists in petitioners employ to
produce a valid certificate of registration as optometrists, from the Board of Examiners in
Optometry. A business permit is issued primarily to regulate the conduct of business and
the City Mayor cannot, through the issuance of such permit, regulate the practice of a
profession, like that of optometry. Such a function is within the exclusive domain of the
administrative agency specifically empowered by law to supervise the profession, in this
case the Professional Regulations Commission and the Board of Examiners in Optometry.
(Acebedo Optical Company, Inc. v. CA, 329 SCRA 314, March 31, 2000, En Banc
[Purisima])
339. May a local government unit validly authorize an expropriation of private property
through a mere resolution of its lawmaking body?
Held: The Local Government Code expressly and clearly requires an ordinance or a local
law for that purpose. A resolution that merely expresses the sentiment or opinion of the
Municipal Council will not suffice. The case of Province of Camarines Sur v. Court of Appeals
which held that a mere resolution may suffice to support the exercise of eminent domain by
a local government unit is not in point because the applicable law at that time was B.P. 337,
the previous Local Government Code, which had provided that a mere resolution would
enable an LGU to exercise eminent domain. In contrast, R.A. 7160, the present Local
Government Code, explicitly required an ordinance for this purpose. (Municipality of
Paranaque v. V.M. Realty Corp., 292 SCRA 678, July 20, 1998 [Panganiban])
340. What are the requisites before a Local Government Unit can validly exercise the
power of eminent domain?
Held:
1)

An ordinance is enacted by the local legislative council authorizing the local chief
executive, in behalf of the LGU, to exercise the power of eminent domain or pursue
expropriation proceedings over a particular private property;
2)
The power of eminent domain is exercised for public use, purpose or welfare, or
for the benefit of the poor and the landless;
3)
There is payment of just compensation, as required under Section 9, Article III of
the Constitution, and other pertinent laws;
4)
A valid and definite offer has been previously made to the owner of the property
sought to be expropriated, but said offer was not accepted.

(Municipality of Paranaque v. V.M. Realty Corp., 292 SCRA 678, July 20, 1998
[Panganiban])
341. May the Sangguniang Panlalawigan validly disapprove a resolution or ordinance of a
municipality calling for the expropriation of private property to be made site of a Farmers
Center and Other Government Sports Facilities on the ground that said expropriation is
unnecessary considering that there are still available lots of the municipality for the
establishment of a government center?
Held: Under the Local Government Code, the Sangguniang Panlalawigan is granted the
power to declare a municipal resolution invalid on the sole ground that it is beyond the
power of the Sangguniang Bayan or Mayor to issue. As held in Velazco v. Blas (G.R. No. L30456, July 30, 1982, 115 SCRA 540, 544-545), The only ground upon which a provincial
board may declare any municipal resolution, ordinance or order invalid is when such
resolution, ordinance, or order is beyond the powers conferred upon the council or president
making the same. A strictly legal question is before the provincial board in its consideration
of a municipal resolution, ordinance, or order. The provincial boards disapproval of any
resolution, ordinance, or order must be premised specifically upon the fact that such
resolution, ordinance, or order is outside the scope of the legal powers conferred by law. If a
provincial board passes these limits, it usurps the legislative functions of the municipal
council or president. Such has been the consistent course of executive authority. (Moday
v. CA, 268 SCRA 586, Feb. 20, 1997)
342. Under Section 8, Article X of the Constitution, "[T]he term of office of elective local
officials x x x shall be three years and no such official shall serve for more than three
consecutive terms." How is this term limit for elective local officials to be interpreted?
Held: The term limit for elective local officials must be taken to refer to the right to be
elected as well as the right to serve in the same elective position. Consequently, it is not
enough that an individual has served three consecutive terms in an elective local office, he
must also have been elected to the same position for the same number of times before the
disqualification can apply. (Borja, Jr. v. COMELEC and Capco, Jr., G.R. No. 133495,
Sept. 3, 1998, 295 SCRA 157, En Banc [Mendoza])
Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of the
incumbent. Six months before the next election, he resigns and is twice elected thereafter.
Can he run again for mayor in the next election?
Answer: Yes, because although he has already first served as mayor by succession and
subsequently resigned from office before the full term expired, he has not actually served
three full terms in all for the purpose of applying the term limit. Under Art. X, Sec. 8,
voluntary renunciation of the office is not considered as an interruption in the continuity of
his service for the full term only if the term is one for which he was elected. Since A is
only completing the service of the term for which the deceased and not he was elected, A
cannot be considered to have completed one term.
His resignation constitutes an
interruption of the full term.
Case No. 2. Suppose B is elected Mayor and, during his first term, he is twice suspended
for misconduct for a total of 1 year. If he is twice reelected after that, can he run for one
more term in the next election?
Answer: Yes, because he has served only two full terms successively.
In both cases, the mayor is entitled to run for reelection because the two conditions for the
application of the disqualification provisions have not concurred, namely, that the local

official concerned has been elected three consecutive times and that he has fully served
three consecutive terms. In the first case, even if the local official is considered to have
served three full terms notwithstanding his resignation before the end of the first term, the
fact remains that he has not been elected three times. In the second case, the local official
has been elected three consecutive times, but he has not fully served three consecutive
terms.
Case No. 3. The case of vice-mayor C who becomes mayor by succession involves a total
failure of the two conditions to concur for the purpose of applying Art. X, Sec. 8. Suppose he
is twice elected after that term, is he qualified to run again in the next election?
Answer: Yes, because he was not elected to the office of mayor in the first term but simply
found himself thrust into it by operation of law. Neither had he served the full term because
he only continued the service, interrupted by the death, of the deceased mayor. (Borja, Jr.
v. COMELEC and Capco, Jr., G.R. No. 133495, Sept. 3, 1998, 295 SCRA 157, En Banc
[Mendoza])
343. What are the policies embodied in the constitutional provision barring elective local
officials, with the exception of barangay officials, from serving more than three consecutive
terms?
Held: To prevent the establishment of political dynasties is not the only policy embodied in
the constitutional provision in question (barring elective local officials, with the exception of
barangay officials, from serving more than three consecutive terms). The other policy is that
of enhancing the freedom of choice of the people. To consider, therefore, only stay in office
regardless of how the official concerned came to that office whether by election or by
succession by operation of law would be to disregard one of the purposes of the
constitutional provision in question. (Borja, Jr. v. COMELEC and Capco, Jr., G.R. No.
133495, Sept. 3, 1998, 295 SCRA 157, En Banc [Mendoza])
344.
Lonzanida was previously elected and served two consecutive terms as mayor of
San Antonio, Zambales prior to the May 1995 mayoral elections. In the May 1995 elections
he again ran for mayor of San Antonio, Zambales and was proclaimed winner. He assumed
office and discharged the rights and duties of mayor until March 1998 when he was ordered
to vacate the post by reason of the COMELEC decision on the election protest against him
which declared his opponent Juan Alvez the duly elected mayor. Alvez served the remaining
portion of the 1995-1998 mayoral term. Is Lonzanida still qualified to run for mayor of San
Antonio, Zambales in the May 1998 local elections?
Held: The two requisites for the application of the three term rule was absent. First,
Lonzanida cannot be considered as having been duly elected to the post in the May 1995
elections, and second, he did not fully serve the 1995-1998 mayoral term by reason of
involuntary relinquishment of office. After a re-appreciation and revision of the contested
ballots the COMELEC itself declared by final judgment that Lonzanida lost in the May 1995
mayoral elections and his previous proclamation as winner was declared null and void. His
assumption of office as mayor cannot be deemed to have been by reason of a valid election
but by reason of a void proclamation. It has been repeatedly held by the SC that a
proclamation subsequently declared void is no proclamation at all and while a proclaimed
candidate may assume office on the strength of the proclamation of the Board of Canvassers
he is only a presumptive winner who assumes office subject to the final outcome of the
election protest. Lonzanida did not serve a term as mayor of San Antonio, Zambales from
May 1995 to March 1998 because he was not duly elected to the post; he merely assumed
office as presumptive winner, which presumption was later overturned by the COMELEC
when it decided with finality that Lonzanida lost in the May 1995 mayoral elections.

Second, Lonzanida cannot be deemed to have served the May 1995 to 1998 term because
he was ordered to vacate his post before the expiration of the term. His opponents'
contention that Lonzanida should be deemed to have served one full term from May 19951998 because he served the greater portion of that term has no legal basis to support it; it
disregards the second requisite for the application of the disqualification, i.e., that he has
fully served three consecutive terms. The second sentence of the constitutional provision
under scrutiny states, "Voluntary renunciation of office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which he was
elected." The clear intent of the framers of the Constitution to bar any attempt to
circumvent the three-term limit by a voluntary renunciation of office and at the same time
respect the people's choice and grant their elected official full service of a term is evident in
this provision. Voluntary renunciation of a term does not cancel the renounced term in the
computation of the three term limit; conversely, involuntary severance from office for any
length of time short of the full term provided by law amounts to an interruption of continuity
of service. Lonzanida vacated his post a few months before the next mayoral elections, not
by voluntary renunciation but in compliance with the legal process of writ of execution
issued by the COMELEC to that effect. Such involuntary severance from office is an
interruption of continuity of service and thus, Lonzanida did not fully serve the 1995-1998
mayoral term.
In sum, Lonzanida was not the duly elected mayor and that he did not hold office for the full
term; hence, his assumption of office from May 1995 to March 1998 cannot be counted as a
term for purposes of computing the three term limit. (Lonzanida v. COMELEC, 311 SCRA
602, July 28, 1999, En Banc [Gonzaga-Reyes])
345. May the President validly withhold a portion of the internal revenue allotments of
Local Government Units legally due them by administrative fiat?
Held: The Constitution vests the President with the power of supervision, not control, over
local government units (LGUs). Such power enables him to see to it that LGUs and their
officials execute their tasks in accordance with law. While he may issue advisories and seek
their cooperation in solving economic difficulties, he cannot prevent them from performing
their tasks and using available resources to achieve their goals. He may not withhold or
alter any authority or power given them by the law. Thus, the withholding of a portion of
internal revenue allotments legally due them cannot be directed by administrative fiat.
Xxx
Section 4 of AO 372 cannot x x x be upheld. A basic feature of local fiscal autonomy is the
automatic release of the shares of LGUs in the National internal revenue. This is mandated
by no less than the Constitution. The Local Government Code (Sec. 286[a]) specifies further
that the release shall be made directly to the LGU concerned within five (5) days after every
quarter of the year and shall not be subject to any lien or holdback that may be imposed by
the national government for whatever purpose. As a rule, the term shall is a word of
command that must be given a compulsory meaning.
The provision is, therefore,
imperative.
Section 4 of AO 372, however, orders the withholding, effective January 1, 1998, of 10
percent of the LGUs IRA pending the assessment and evaluation by the Development
Budget Coordinating Committee of the emerging fiscal situation in the country. Such
withholding clearly contravenes the Constitution and the law. Although, temporary, it is
equivalent to a holdback, which means something held back or withheld. Often
temporarily. Hence, the temporary nature of the retention by the national government
does not matter. Any retention is prohibited.

In sum, while Section 1 of AO 372 may be upheld as an advisory effected in times of national
crisis, Section 4 thereof has no color of validity at all. The latter provision effectively
encroaches on the fiscal autonomy of local governments. Concededly, the President was
well-intentioned in issuing his Order to withhold the LGUs IRA, but the rule of law requires
that even the best intentions must be carried out within the parameters of the Constitution
and the law. Verily, laudable purposes must be carried out by legal methods. (Pimentel,
Jr. v. Aguirre, G.R. No. 132988, 336 SCRA 201, July 19, 2000, En Banc
[Panganiban])
346. What is meant by fiscal autonomy of Local Governments? Does it rule out in any
manner national government intervention by way of supervision in order to ensure that local
programs are consistent with national goals?
Held: Under existing law, local government units, in addition to having administrative
autonomy in the exercise of their functions, enjoy fiscal autonomy as well. Fiscal autonomy
means that local governments have the power to create their own sources of revenue in
addition to their equitable share in the national taxes released by the national government,
as well as the power to allocate their resources in accordance with their own priorities. It
extends to the preparation of their budgets, and local officials in turn have to work within the
constraints thereof. They are not formulated at the national level and imposed on local
governments, whether they are relevant to local needs and resources or not. Hence, the
necessity of a balancing of viewpoints and the harmonization of proposals from both local
and national officials, who in any case are partners in the attainment of national goals.
Local fiscal autonomy does not, however, rule out any manner of national government
intervention by way of supervision, in order to ensure that local programs, fiscal and
otherwise, are consistent with national goals. Significantly, the President, by constitutional
fiat, is the head of the economic and planning agency of the government (Section 9, Article
XII of the Constitution), primarily responsible for formulating and implementing continuing,
coordinated and integrated social and economic policies, plans and programs (Section 3,
Chapter 1, Subtitle C, Title II, Book V, EO 292 [Administrative Code of 1987]) for the entire
country. However, under the Constitution, the formulation and the implementation of such
policies and programs are subject to consultations with the appropriate public agencies,
various private sectors, and local government units.
The President cannot do so
unilaterally. (Pimentel, Jr. v. Aguirre, 336 SCRA 201, July 19, 2000, En Banc
[Panganiban])
347.

What are the requisites before the President may interfere in local fiscal matters?

Held: x x x [T]he Local Government Code provides (Sec. 284. See also Art. 379 of the Rules
and Regulations Implementing the Local Government Code of 1991):
x x x [I]n the event the national government incurs an unmanaged public sector deficit, the
President of the Philippines is hereby authorized, upon the recommendation of [the]
Secretary of Finance, Secretary of the Interior and Local Government and Secretary of
Budget and Management, and subject to consultation with the presiding officers of both
Houses of Congress and the presidents of the liga, to make the necessary adjustments in the
internal revenue allotment of local government units but in no case shall the allotment be
less than thirty percent (30%) of the collection of national internal revenue taxes of the third
fiscal year preceding the current fiscal year x x x
There are therefore several requisites before the President may interfere in local fiscal
matters: (1) an unmanaged public sector deficit of the national government; (2)
consultations with the presiding officers of the Senate and the House of Representatives and
the presidents of the various local leagues; and (3) the corresponding recommendation of

the secretaries of the Department of Finance, Interior and Local Government, and Budget
and Management. Furthermore, any adjustment in the allotment shall in no case be less
than thirty percent (30%) of the collection of national internal revenue taxes of the third
fiscal year preceding the current one. (Pimentel, Jr. v. Aguirre, 336 SCRA 201, July 19,
2000, En Banc [Panganiban])
348.

Distinguish an ordinance from a mere resolution.

Held: A municipal ordinance is different from a resolution. An ordinance is a law, but a

resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a
specific matter. An ordinance possesses a general and permanent character, but a
resolution is temporary in nature. Additionally, the two are enacted differently a third
reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a
majority of all the Sanggunian members. (Municipality of Paranaque v. V.M. Realty
Corporation, 292 SCRA 678, July 20, 1998 [Panganiban])
349. On its first regular session, may the Sanggunian transact business other than the
matter of adopting or updating its existing rules or procedure?
Held: We cannot infer the mandate of the (Local Government) Code that no other business
may be transacted on the first regular session except to take up the matter of adopting or
updating rules. All that the law requires is that on the first regular session x x x the
sanggunian concerned shall adopt or update its existing rules or procedures. There is
nothing in the language thereof that restricts the matters to be taken up during the first
regular session merely to the adoption or updating of the house rules. If it were the intent of
Congress to limit the business of the local council to such matters, then it would have done
so in clear and unequivocal terms. But as it is, there is no such intent.
Moreover, adopting or updating of house rules would necessarily entail work beyond the day
of the first regular session. Does this mean that prior thereto, the local council's hands were
tied and could not act on any other matter? That would certainly be absurd for it would
result in a hiatus and a paralysis in the local legislature's work which could not have been
intended by the law. (Malonzo v. Zamora, 311 SCRA 224, July 27, 1999, En Banc
[Romero])
350. May an incumbent Vice-Governor, while concurrently the Acting Governor, continue
to preside over the sessions of the Sangguniang Panlalawigan (SP)? If no, who may preside
in the meantime?
Held: Being the acting governor, the Vice-governor cannot continue to simultaneously
exercise the duties of the latter office, since the nature of the duties of the Provincial
Governor calls for a full-time occupant to discharge them. Such is not only consistent with
but also appears to be the clear rationale of the new (Local Government) Code wherein the
policy of performing dual functions in both offices has already been abandoned. To repeat,
the creation of a temporary vacancy in the office of the Governor creates a corresponding
vacancy in the office of the Vice-Governor whenever the latter acts as Governor by virtue of
such temporary vacancy. This event constitutes an inability on the part of the regular
presiding officer (Vice-Governor) to preside during the SP sessions, which thus calls for the
operation of the remedy set in Article 49(b) of the Local Government Code concerning the
election of a temporary presiding officer. The continuity of the Acting Governors (ViceGovernor) powers as presiding officer of the SP is suspended so long as he is in such
capacity. Under Section 49(b), in the event of the inability of the regular presiding officer to
preside at the sanggunian session, the members present and constituting a quorum shall
elect from among themselves a temporary presiding officer. (Gamboa, Jr. v. Aguirre, Jr.,
G.R. No. 134213, July 20, 1999, En Banc [Ynares-Santiago])

351.

What is recall?

Held: Recall is a mode of removal of a public officer by the people before the end of his
term of office. The people's prerogative to remove a public officer is an incident of their
sovereign power and in the absence of constitutional restraint, the power is implied in all
governmental operations. Such power has been held to be indispensable for the proper
administration of public affairs.
Not undeservedly, it is frequently described as a
fundamental right of the people in a representative democracy. (Garcia v. COMELEC, 227
SCRA 108, Oct. 5, 1993, En Banc [Puno])
352.

What is the ground for recall? Is this subject to judicial inquiry?

Held: Former Senator Aquilino Pimentel, Jr., a major author of the subject law in his book
The Local Government Code of 1991: The Key to National Development, stressed the same
reason why the substantive content of a vote of lack of confidence is beyond any inquiry,
thus:
There is only one ground for recall of local government officials: loss of confidence. This
means that the people may petition or the Preparatory Recall Assembly may resolve to recall
any local elective official without specifying any particular ground except loss of confidence.
There is no need for them to bring up any charge of abuse or corruption against the local
elective officials who are subject of any recall petition.
In the case of Evardone v. Commission on Elections, et al., 204 SCRA 464, 472 (1991), the
Court ruled that loss of confidence as a ground for recall is a political question. In the
words of the Court, 'whether or not the electorate of the municipality of Sulat has lost
confidence in the incumbent mayor is a political question.
(Garcia v. COMELEC, 227 SCRA 108, Oct. 5, 1993, En Banc [Puno])
353. The members of the Preparatory Recall Assembly (PRA) of the province of Bataan
adopted a resolution calling for the recall of Governor Garcia. It was admitted, however, by
the proponents of the recall resolution that only those members of the assembly inclined to
agree were notified of the meeting where said resolution was adopted as a matter of
strategy and security. They justified these selective notices on the ground that the law
(Local Government Code) does not specifically mandate the giving of notice. Should this
submission be sustained?
Held: We reject this submission of the respondents. The due process clause of the
Constitution requiring notice as an element of fairness is inviolable and should always be
considered part and parcel of every law in case of its silence. The need for notice to all the
members of the assembly is also imperative for these members represent the different
sectors of the electorate of Bataan. To the extent that they are not notified of the meeting
of the assembly, to that extent is the sovereign voice of the people they represent nullified.
The resolution to recall should articulate the majority will of the members of the assembly
but the majority will can be genuinely determined only after all the members of the
assembly have been given a fair opportunity to express the will of their constituents.
Needless to stress, the requirement of notice is mandatory for it is indispensable in
determining the collective wisdom of the members of the Preparatory Recall Assembly. Its
non-observance is fatal to the validity of the resolution to recall petitioner Garcia as
Governor of the province of Bataan. (Garcia v. COMELEC, G.R. No. 111511, Sept. 21,
1993; 227 SCRA 100, Oct. 5, 1993, En Banc [Puno]
354. The members of the Preparatory Recall Assembly (PRA) of Puerto Princesa City met
and adopted a resolution calling for the recall of incumbent Mayor Dennis Victorino M.

Socrates on the ground of loss of confidence on July 2, 2002. Mayor Socrates argued that
they have no authority to adopt said Recall Resolution because a majority of PRA members
were seeking a new electoral mandate in the barangay elections scheduled on July 15, 2002.
Should his contention be sustained?
Held: This argument deserves scant consideration considering that when the PRA
members adopted the Recall Resolution their terms of office had not yet expired. They were
all de jure sangguniang barangay members with no legal disqualification to participate in the
recall assembly under Section 70 of the Local Government Code. (Victorino Dennis M.
Socrates v. The Commission on Elections, G.R. No. 154512, Nov. 12, 2002, En Banc
[Carpio])
355. Whether or not an elective official who became City Mayor by legal succession can
be the subject of a recall election by virtue of a Preparatory Recall Assembly Resolution
which was passed or adopted when the said elective official was still the Vice-Mayor.
Held: The specific purpose of the Preparatory Recall Assembly was to remove
Amelita S. Navarro as the elected Vice-Mayor of Santiago City since PRA Resolution No. 1
dated July 12, 1999 expressly states that x x x it is hereby resolved to invoke the rescission
of the electoral mandate of the incumbent City Vice-Mayor Amelita S. Navarro for loss of
confidence through a recall election to be set by the Commission on Election as provided for
under Section 71 of the Local Government Code of 1991. However, the said PRA Resolution
No. 1 is no longer applicable to her inasmuch as she had already vacated the office of ViceMayor on October 11, 1999 when she assumed the position of City Mayor of Santiago City.
Even if the Preparatory Recall Assembly were to reconvene to adopt another
resolution for the recall of Amelita Navarro, this time as Mayor of Santiago City, the same
would still not prosper in view of Section 74 (b) of the Local Government Code of 1991 which
provides that No recall shall take place within one (1) year from the date of the officials
assumption of office or one (1) year immediately preceding a regular election. There is no
more allowable time in the light of that law within which to hold recall elections for that
purpose. The then Vice-Mayor Amelita S. Navarro assumed office as Mayor of Santiago City
on October 11, 1999. One year after her assumption of office as Mayor will be October 11,
2000 which is already within the one (1) year prohibited period immediately preceding the
next regular election in May 2001. (Afiado v. Commission on Elections, 340 SCRA 600,
Sept. 18, 2000, En Banc [De Leon]
356. Mayor Edward S. Hagedorn of Puerto Princesa City was elected for three consecutive
times in the 1992, 1995 and 1998 elections and served in full his three consecutive terms as
Mayor. In the 2001 elections, he ran for Governor of the Province of Palawan and lost.
Socrates ran and won as Mayor of Puerto Princesa in that election. On July 2, 2002, the
Preparatory Recall Assembly (PRA) of Puerto Princesa City adopted a Resolution calling for
the recall of incumbent Mayor Socrates. The COMELEC scheduled a Special Recall Election
for Mayor of that City on September 24, 2002. Is Mayor Hagedorn qualified to run again for
Mayor in that Special Recall Election considering the circumstances?
Held: The three-term limit rule for elective local officials is found in Section
8, Article X of the Constitution x x x.

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

September 24, 2002 which broke the continuity or consecutive character of Hagedorns
service as mayor.
X x x In Hagedorns case, the nearly 15-month period he was out of office, although short of
a full term of three years, constituted an interruption in the continuity of his service as
mayor. The Constitution does not require the interruption or hiatus to be a full term of three
years. The clear intent is that interruption for any length of time, as long as the cause is
involuntary, is sufficient to break an elective local officials continuity of service. (Victorino
Dennis M. Socrates v. The Commission on Elections, G.R. No. 154512, Nov. 12,
2002, En Banc [Carpio])

357. What acts of a Division of the COMELEC may be subject of a motion for
reconsideration of the COMELEC en banc?
Held: Section 5, Rule 19 of the COMELEC Rules of Procedure, provides:
SEC. 5. How Motion for Reconsideration Disposed of. - Upon the filing of a motion to
reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned
shall, within twenty-four (24) hours from the filing thereof, notify the presiding
Commissioner. The latter shall within two (2) days thereafter certify the case to the
Commission en banc.
Under the above-quoted rule, the acts of a Division that are subject of a motion for
reconsideration must have a character of finality before the same can be elevated to the
COMELEC en banc. The elementary rule is that an order is final in nature if it completely
disposes of the entire case. But if there is something more to be done in the case after its
issuance, that order is interlocutory.
As correctly pointed out by public respondent in its assailed order of November 29,
1999, the October 11, 1999 did not dispose of the case completely as there is something
more to be done which is to decide the election protest. As such, it is the herein public
respondent (Second Division of the COMELEC) which issued the interlocutory order of
October 11, 1999 that should resolve petitioners motion for reconsideration, not the
COMELEC en banc (Bulaong v. COMELEC, First Division, 220 SCRA 745, 749 [1993]).
Accordingly, the applicable rule on the subject is Section 5(c), Rule 3 of the COMELEC Rules
of Procedure, which states:
Rule 3, Section 5(c). Any motion to reconsider a decision, resolution, order or ruling of a
Division shall be resolved by the Commission en banc except motions on interlocutory
orders of the division, which shall be resolved by the divisions which issued the order.
That only final orders of a Division may be raised before the COMELEC en banc is in
accordance with Article IX-C, Section 3 of the Constitution which mandates that only motions
for reconsideration of final decisions shall be decided by the Commission on Elections en
banc, thus:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of
procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such
election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be
decided by the Commission en banc.

It bears stressing that under this constitutional provision, the COMELEC en banc shall
decide motions for reconsideration only of decisions of a Division, meaning those acts of
final character. Clearly, the assailed order denying petitioner's demurrer to evidence, being
interlocutory, may not, be resolved by the COMELEC en banc (Ambil, Jr. v. Commission on
elections, G.R. No. 143398, Oct. 25, 2000, 344 SCRA 358). (Gementiza v. Commission on
Elections, 353 SCRA 724, March 6, 2001, En Banc [Sandoval-Gutierrez])
358. Will it be proper for the Commission on Elections to act on a petition for recall signed
by just one person?
Held: A petition for recall signed by just one person is in violation of the statutory 25%
minimum requirement as to the number of signatures supporting any petition for recall.
Sec. 69(d) of the Local Government Code of 1991 expressly provides that 'recall of any
elective x x x municipal x x x official may also be validly initiated upon petition of at least
twenty-five percent (25%) of the total number of registered voters in the local government
unit concerned during the election in which the local official sought to be recalled was
elected.' The law is plain and unequivocal as to what constitutes recall proceedings: only a
petition of at least 25% of the total number of registered voters may validly initiate recall
proceedings. (Angobung v. COMELEC, G.R. No. 126576, March 5, 1997)
359. Section 74 of the Local Government Code provides that no recall shall take place
within one year x x x immediately preceding a regular local election. What does the term
regular local election, as used in this section, mean?
Held: The term regular local election under Sec. 74 of the Local Government Code of
1991 which provides that no recall shall take place within one (1) year x x x immediately
preceding a regular local election refers to one where the position of the official sought to
be recalled is to be actually contested and filled by the electorate (Paras v. Comelec, G.R.
No. 123169, Nov. 4, 1996). The one-year time bar will not apply where the local official
sought to be recalled is a Mayor and the approaching election is a barangay election.
(Angobung v. COMELEC, G.R. No. 126576, March 5, 1997)
360. Does the word Recall in paragraph (b) of Section 74 of the Local Government Code
include the convening of the Preparatory Recall Assembly and the filing by it of a recall
resolution? Discuss.
Held: Petitioner contends that the term recall in Sec. 74 (b) refers to a process, in
contrast to the term recall election found in Sec. 74 (a), which obviously refers to an
election. He claims that when several barangay chairmen met and convened on May 19,
1999 and unanimously resolved to initiate the recall, followed by the taking of votes by the
PRA on May 29, 1999 for the purpose of adopting a resolution to initiate the recall of Jovito
Claudio as Mayor of Pasay City for loss of confidence, the process of recall began and,
since May 29, 1999 was less than a year after he had assumed office, the PRA was illegally
convened and all proceedings held thereafter, including the filing of the recall petition on
July 2, 1999, were null and void.
The COMELEC, on the other hand, maintains that the process of recall starts with the filing of
the petition for recall and ends with the conduct of the recall election, and that, since the
petition for recall in this case was filed on July 2, 1999, exactly one year and a day after
petitioners assumption of office, the recall was validly initiated outside the one-year
prohibited period.
Both petitioner Claudio and the COMELEC thus agree that the term recall as used in Sec.
74 refers to a process. They disagree only as to when the process starts for purpose of the
one-year limitation in paragraph (b) of Sec. 74.

We can agree that recall is a process which begins with the convening of the preparatory
recall assembly or the gathering of the signatures at least 25% of the registered voters of a
local government unit, and then proceeds to the filing of a recall resolution or petition with
the COMELEC, the verification of such resolution or petition, the fixing of the date of the
recall election, and the holding of the election on the scheduled date. However, as used in
paragraph (b) of Sec. 74, recall refers to the election itself by means of which voters
decide whether they should retain their local official or elect his replacement.
Xxx
To sum up, the term recall in paragraph (b) refers to the recall election and not to the
preliminary proceedings to initiate recall
1)

Because Sec. 74 speaks of limitations on recall which, according to Sec. 69, is a

power which shall be exercised by the registered voters of a local government unit. Since
the voters do not exercise such right except in an election, it is clear that the initiation of
recall proceedings is not prohibited within the one-year period provided in paragraph (b);
2)
Because the purpose of the first limitation in paragraph (b) is to provide voters a
sufficient basis for judging an elective local official, and final judging is not done until the
day of the election; and
3)
Because to construe the limitation in paragraph (b) as including the initiation of
recall proceedings would unduly curtail freedom of speech and of assembly guaranteed in
the Constitution.
(Jovito O. Claudio v. COMELEC, G.R. No. 140560, May 4, 2000, En Banc [Mendoza])
361.

Who has the legal authority to represent a municipality in lawsuits?

Held:
Only the provincial fiscal, provincial attorney, and municipal attorney should
represent a municipality in its lawsuits. Only in exceptional instances may a private attorney
be hired by a municipality to represent it in lawsuits. (Ramos v. CA, 269 SCRA 34, March
3, 1997)
362. What are the exceptional instances when a private attorney may be validly hired by
a municipality in its lawsuits?
Held: In Alinsug v. RTC Br. 58, San Carlos City, Negros Occidental (225 SCRA 553, Aug. 23,
1993), it was held that the law allows a private counsel to be hired by a municipality only
when the municipality is an adverse party in a case involving the provincial government or
another municipality or city within the province. This provision has its apparent origin in De
Guia v. The Auditor General (44 SCRA 169, March 29, 1979) where the Court held that the
municipalitys authority to employ a private attorney is expressly limited only to situations
where the provincial fiscal would be disqualified to serve and represent it. (Ramos v. CA,
269 SCRA 34, March 3, 1997)
363. Cite instances when the provincial fiscal may be disqualified to represent in court a
particular municipality.
Held: As held in Enriquez, Sr. v. Gimenez (107 Phil. 932 [1960]), the provincial fiscal may be
disqualified to represent in court a particular municipality in the following instances:
1)

If and when original jurisdiction of case involving the municipality is vested in the
Supreme Court;
2)
When the municipality is a party adverse to the provincial government or to some
other municipality in the same province; and

3)

When, in a case involving the municipality, he, or his wife, or child, is pecuniarily
involved, as heir, legatee, creditor or otherwise.
(Ramos v. CA, 269 SCRA 34, March 3, 1997)
364. May a municipality be represented by a private law firm which had volunteered its
services gratis, in collaboration with the municipal attorney and the fiscal?
Held: No. Such representation will be violative of Section 1983 of the old Administrative
Code. This strict coherence to the letter of the law appears to have been dictated by the
fact that the municipality should not be burdened with expenses of hiring a private lawyer
and that the interests of the municipality would be best protected if a government lawyer
handles its litigations.
Private lawyers may not represent municipalities on their own. Neither may they do so even
in collaboration with authorized government lawyers. This is anchored on the principle that
only accountable public officers may act for and in behalf of public entities and that public
funds should not be expended to hire private lawyers. (Ramos v. CA, 269 SCRA 34,
March 3, 1997)
365. May a municipality adopt the work already performed in good faith by a private
lawyer, which work proved beneficial to it?
Held: Although a municipality may not hire a private lawyer to represent it in litigations, in
the interest of substantial justice, however, it was held that a municipality may adopt the
work already performed in good faith by such private lawyer, which work is beneficial to it
(1) provided that no injustice is thereby heaped on the adverse party and (2) provided
further that no compensation in any guise is paid therefor by said municipality to the private
lawyer. Unless so expressly adopted, the private lawyers work cannot bind the municipality.
(Ramos v. CA, 269 SCRA 34, March 3, 1997)
366. May the Punong Barangay validly appoint or remove the barangay treasurer, the
barangay secretary, and other appointive barangay officials without the concurrence of the
majority of all the members of the Sangguniang Barangay?
Held: The Local Government Code explicitly vests on the punong barangay, upon approval
by a majority of all the members of the sangguniang barangay, the power to appoint or
replace the barangay treasurer, the barangay secretary, and other appointive barangay
officials. Verily, the power of appointment is to be exercised conjointly by the punong
barangay and a majority of all the members of the sangguniang barangay. Without such
conjoint action, neither an appointment nor a replacement can be effectual.
Applying the rule that the power to appoint includes the power to remove, the questioned
dismissal from office of the barangay officials by the punong barangay without the
concurrence of the majority of all the members of the Sangguniang Barangay cannot be
legally justified. To rule otherwise could also create an absurd situation of the Sangguniang
Barangay members refusing to give their approval to the replacements selected by the
punong barangay who has unilaterally terminated the services of the incumbents. It is likely
that the legislature did not intend this absurdity to follow from its enactment of the law.
(Ramon Alquizola, Sr. v. Gallardo Ocol, G.R. No. 132413, Aug. 27, 1999, 3 rd Div.
[Vitug])
367. What acts of a Division of the COMELEC may be subject of a motion for
reconsideration of the COMELEC en banc?
Held: Section 5, Rule 19 of the COMELEC Rules of Procedure, provides:

SEC. 5. How Motion for Reconsideration Disposed of. - Upon the filing of a motion to
reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned
shall, within twenty-four (24) hours from the filing thereof, notify the presiding
Commissioner. The latter shall within two (2) days thereafter certify the case to the
Commission en banc.
Under the above-quoted rule, the acts of a Division that are subject of a motion for
reconsideration must have a character of finality before the same can be elevated to the
COMELEC en banc. The elementary rule is that an order is final in nature if it completely
disposes of the entire case. But if there is something more to be done in the case after its
issuance, that order is interlocutory.
As correctly pointed out by public respondent in its assailed order of November 29,
1999, the October 11, 1999 did not dispose of the case completely as there is something
more to be done which is to decide the election protest. As such, it is the herein public
respondent (Second Division of the COMELEC) which issued the interlocutory order of
October 11, 1999 that should resolve petitioners motion for reconsideration, not the
COMELEC en banc (Bulaong v. COMELEC, First Division, 220 SCRA 745, 749 [1993]).
Accordingly, the applicable rule on the subject is Section 5(c), Rule 3 of the COMELEC Rules
of Procedure, which states:
Rule 3, Section 5(c). Any motion to reconsider a decision, resolution, order or ruling of a
Division shall be resolved by the Commission en banc except motions on interlocutory
orders of the division, which shall be resolved by the divisions which issued the order.
That only final orders of a Division may be raised before the COMELEC en banc is in
accordance with Article IX-C, Section 3 of the Constitution which mandates that only motions
for reconsideration of final decisions shall be decided by the Commission on Elections en
banc, thus:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of
procedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such
election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be
decided by the Commission en banc.
It bears stressing that under this constitutional provision, the COMELEC en banc shall
decide motions for reconsideration only of decisions of a Division, meaning those acts of
final character. Clearly, the assailed order denying petitioner's demurrer to evidence, being
interlocutory, may not, be resolved by the COMELEC en banc (Ambil, Jr. v. Commission on
elections, G.R. No. 143398, Oct. 25, 2000, 344 SCRA 358). (Gementiza v. Commission on
Elections, 353 SCRA 724, March 6, 2001, En Banc [Sandoval-Gutierrez])
368. Is a contract entered into by the city mayor involving the expenditure of public funds
by the local government without prior appropriation by the city council valid and binding?
Held: If we are to limit our disquisition to the cited provisions of Presidential Decree No.
1445, or the Auditing Code of the Philippines, in conjunction with Section 177 (b) of Batas
Pambansa Blg. 337, or the Local Government Code of 1983, which empowered the
Sangguniang Panlungsod to appropriate funds for expenses of the city government, and fix
the salaries of its officers and employees according to law, there would be no debate that

prior appropriation by the city council and a certification that funds are available therefore is
indeed mandatorily required.
Xxx
However, the very same Presidential Decree No. 1445, which is the cornerstone of
petitioners arguments, does not provide that the absence of an appropriation law ipso facto
makes a contract entered into by a local government unit null and void. Section 84 of the
statute specifically provides:
Revenue funds shall not be paid out of any public treasury or depository except in pursuance
of an appropriation law or other specific statutory authority.
Consequently, public funds may be disbursed not only pursuant to an appropriation
law, but also in pursuance of other specific statutory authority, i.e., Section 84 of PD 1445.
Thus, when a contract is entered into by a city mayor pursuant to specific statutory
authority, the law, i.e., PD 1445 allows the disbursement of funds from any public treasury or
depository therefor. It can thus be plainly seen that the law invoked by petitioner Quezon
City itself provides that an appropriation law is not the only authority upon which public
funds shall be disbursed.
Furthermore, then Mayor Brigido Simon, Jr. did not enter into the subject contract
without legal authority. The Local Government Code of 1983, or B.P. Blg. 337, which was
then in force, specifically and exclusively empowered the city mayor to represent the city in
its business transactions, and sign all warrants drawn on the city treasury and all bonds,
contracts and obligations of the city. Such power granted to the city mayor by B.P. Blg. 337
was not qualified nor restricted by any prior action or authority of the city council. We note
that while the subsequent Local Government Code of 1991, which took effect after the
execution of the subject contracts, provides that the mayors representation must be upon
authority of the sangguniang panlungsod or pursuant to law or ordinance, there was no
such qualification under the old code. (Citations omitted)
We must differentiate the provisions of the old Local Government Code of 1983, B.P.
Blg. 337, which was then in force, from that of the Local Government Code of 1991, R.A. No.
7160, which now requires that the mayors representation of the city in its business
transactions must be upon authority of the sangguniang panlungsod or pursuant to law or
ordinance (Section 455 [vi]. No such prior authority was required under B.P. Blg. 337. This
restriction, therefore, cannot be imposed on the city mayor then since the two contracts
were entered into before R.A. No. 7160 was even enacted.
Under B.P. Blg. 337, while the city mayor has no power to appropriate funds to
support the contracts, neither does said law prohibit him from entering into contracts unless
and until funds are appropriated therefor. In fact, it is his bounden duty to so represent the
city in all its business transactions. On the other hand, the city council must provide for the
depositing, leaving or throwing of garbage and to appropriate funds for such expenses.
(Section 177 [b]). It cannot refuse to so provide and appropriate public funds for such

services which are very vital to the maintenance of cleanliness of the city and the good
health of its inhabitants.
By entering into the two contracts, Mayor Simon did not usurp the city councils
power to provide for the proper disposal of garbage and to appropriate funds therefor. The
execution of contracts to address such a need is his statutory duty, just as it is the city
councils duty to provide for said services. There is no provision in B.P. Blg. 337, however,
that prohibits the city mayor from entering into contracts for the public welfare, unless and
until there is prior authority from the city council. This requirement was imposed much later
by R.A. No. 7160, long after the contracts had already been executed and implemented.
Even the very Charter of Quezon City, more particularly Section 9(f), Section
12(a)and Section 12(m) thereof, simply provide that the mayor shall exercise general powers
and duties, such as signing all warrants drawn on the city treasurer and all bonds,
contracts, and obligations of the city, even as it grants the City Council the power, by
ordinance or resolution, to make all appropriations for the expenses of the government of
the city, as well as to prohibit the throwing or depositing of offal, garbage, refuse, or other
offensive matter in the same, and to provide for its collection and disposition x x x.
(Citations omitted)
While the powers and duties of the Mayor and the City Council are clearly delineated,
there is nothing in the cited provisions, nor even in the statute itself, that requires prior
authorization by the city council by proper enactment of an ordinance before the City
Mayor can enter into contracts.
Private respondent Lexber asserts that the subject contract was entered into by
Mayor Simon in behalf of the Quezon City government pursuant to specific statutory
authority, more particularly the provisions of Executive Order No. 392 (Constituting the
Metro Manila Authority [MMA]). x x x (City of Quezon v. Lexber Incorporated, 354
SCRA 493, Mar. 15, 2001, 1st Div. [Ynares-Santiago])
369. Does the Presidents power of general supervision extend to the liga ng mga
barangay, which is not a local government unit?
Held: We rule in the affirmative. In Opinion No. 41, Series of 1995, the Department
of Justice ruled that the liga ng mga barangay is a government organization, being an
association, federation, league or union created by law or by authority of law, whose
members are either appointed or elected government officials. The Local Government Code
defines the liga ng mga barangay as an organization of all barangays for the primary
purpose of determining the representation of the liga in the sanggunians, and for ventilating,
articulating and crystallizing issues affecting barangay government administration and
securing, through proper and legal means, solutions thereto (Sec. 491, Local Government
Code). X x x
Xxx

The ligas are primarily governed by the provisions of the Local Government Code
(Book III, Title VI, Local Government Code). However, their respective constitution and bylaws shall govern other matters affecting internal organization of the liga not otherwise
provided for in the Local Government Code provided that the constitution and by-laws shall
be suppletory to the provisions of Book III, Title VI of the Local Government Code and shall
always conform to the provisions of the Constitution and existing laws (Sec. 507, Local
Government Code).
Having in mind the foregoing principles, we rule that Memorandum Circular No. 97193 of the DILG insofar as it authorizes the filing a Petition for Review of the BES with the
regular courts in a post proclamation electoral protest is of doubtful constitutionality. We
agree with both the petitioner and the Solicitor General that in authorizing the filing of the
petition for review of the decision of the BES with the regular courts, the DILG Secretary in
effect amended and modified the GUIDELINES promulgated by the National Liga Board and
adopted by the LIGA which provides that the decision of the BES shall be subject to review
by the National Liga Board. The amendment of the GUIDELINES is more than an exercise of
the power of supervision but is an exercise of the power of control, which the President does
not have over the LIGA. Although the DILG is given the power to prescribe rules, regulations
and other issuances, the Administrative Code limits its authority to merely monitoring
compliance by local government units of such issuances (Taule v. Santos, 200 SCRA 512,
523 [1991]). To monitor means to watch, observe or check and is compatible with the
power of supervision of the DILG Secretary over local governments, which is limited to
checking whether the local government unit concerned or the officers thereof perform their
duties as per statutory enactments (Ibid.). Besides, any doubt as to the power of the DILG
Secretary to interfere with local affairs should be resolved in favor of the greater autonomy
of the local government (Ibid.)
The public respondent judge therefore committed grave abuse of discretion
amounting to lack or excess of jurisdiction in not dismissing the respondents Petition for
Review for failure to exhaust all administrative remedies and for lack of jurisdiction. (BitoOnon v. Fernandez, 350 SCRA 732, Jan. 31, 2001, 3rd Div. [Gonzaga-Reyes])
370. Petitioners would seek the disqualification of respondent Leonardo B. Roman on the
ground of his having transgressed the three-term limit under Section 8, Article X, of the
1987 Constitution and Section 43 of Republic Act No. 7160 (Local Government Code). The
focal issue presented before the Court x x x would revolve on the question of whether or not
private respondent Roman exceeded the three-term limit for elective local officials,
expressed in the Constitution and the Local Government Code, when he again ran for the
position of Governor in the 14th of May 2001 elections, having occupied and served in that
position following the 1993 recall elections, as well as the 1995 and 1998 regular elections,
immediately prior to the 2001 elections. In fine, should respondents incumbency to the
post of Governor following the recall elections be included in determining the threeconsecutive term limit fixed by law?
Held: After due deliberation, the Court voted 8 to 7 to DISMISS the petition.

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

contended that respondent Romans election in 2001 cannot exempt him from the threeterm limit imposed by the Constitution.
In his Separate Opinion, Justice Vitug voted to dismiss the petition on the following
considerations:
In order that the three-consecutive term limit can apply, two conditions must concur,
i.e., (1) that the elective local official concerned has been elected for three consecutive
terms to the same local government position, and (2) that he has served three consecutive
full terms, albeit a voluntary renunciation of the office for any length of time shall not be
deemed to be an interruption in the continuity of the service for the full term for which he is
elected. The constitutional provision does not appear to be all that imprecise for and in its
application. Section 8, Article X, of the Constitution is explicit that the term of office of
elective local officials x x x shall be three years which phrase is forthwith followed by its
mandate that no such official shall serve for more than three consecutive terms, and that
[v]oluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he [is] elected. The
law evidently contemplates a continuous full three-year term before the proscription can
apply.
The Constitutional Commission, in its deliberations, referred to a full nine (9) years of
service for each elective local government official in the application of the prohibition,
envisioning at the same time a continuous and uninterrupted period of nine years by
providing for only one exception, i.e., when an incumbent voluntarily gives up the office.
Xxx
A winner who dislodges in a recall election an incumbent elective local official merely
serves the balance of the latters term of office; it is not a full three-year term. It also goes
without saying that an incumbent elective local official against whom a recall election is
initiated and who nevertheless wins in a recall election must be viewed as being a
continuing term of office and not as a break in reckoning his three consecutive terms. X x x
If involuntary severance from the service which results in the incumbents being
unable to finish his term of office because of his ouster through valid recall proceedings
negates one term for purposes of applying the three-term limit, as so intimated in
Lonzanida, it stands to reason that the balance of the term assumed by the newly elected
local official in a recall election should not also be held to be one term in reckoning the
three-term limit. In both situations, neither the elective local official who is unable to finish
his term nor the elected local official who only assumes the balance of the term of the
ousted local official following the recall election could be considered to have served a full
three-year term set by the Constitution.
This view is not inconsistent, but indeed in line, with the conclusion ultimately
reached in Socrates v. Commission on Elections, where the Court has considered
Hagedorn, following his three full terms of nine years, still qualified to run in a recall election
conducted about a year and a half after the most recent regular local elections. A recall

term then, not being a full three-year term, is not to be counted or used as a basis for
disqualification whether it is held prior or subsequent to the nine year full three-term limit.
This same issue has been passed and ruled upon by the Commission on Elections no
less than five times. Consistently, it has held that the term of a newcomer in recall elections
cannot be counted as a full term and may not thus be included in counting the three-term
limit prescribed under the law. The Commission on Elections, with its fact-finding facilities,
its familiarity with political realities, and its peculiar expertise in dealing with election
controversies, should be in a good vantage point to resolve issues of this nature.
Concededly, no ready made formulae are always extant to address occasional complex
issues, allowing time and experience to merely evolve and ultimately provide acceptable
solutions. In the administration of election laws, it would be unsound by an excessive zeal to
remove from the Commission on Elections the initiative it takes on such questions which, in
fact, by legal mandate properly belong to it (See Loong v. COMELEC, 305 SCRA 832,
Pangandaman v. COMELEC, 319 SCRA 283).
Nor should it be ignored that the law here involved is a limitation on the right of
suffrage not only on the candidate for office but also, and most importantly, on the
electorate. Respondent Roman has won the election to the post of Governor of Bataan with
a comfortable margin against his closest opponent. Where a candidate appears to be the
clear choice of the people, doubts on the candidates eligibility, even only as a practical
matter, must be so resolved as to respect and carry out, not defeat, the paramount will of
the electorate. While the Constitution would attempt to prevent the monopolization of
political power, indeed a wise rule, the precept of preserving the freedom of choice of the
people on who shall rightfully hold the reins of government for them is no less than
fundamental in looking at its overriding intent. (Melanio L. Mendoza and Mario E. Ibarra
v. Commission on Elections and Leonardo B. Roman, G.R. No. 149736, Dec. 17,
2002, En Banc)
371. On May 3, 2001, petitioner filed with the Provincial Election Supervisor in Pagadian
City a petition for the disqualification of respondent Sulong, pursuant to Sec. 40[b] of
Republic Act No. 7160 (Local Government Code), which disqualifies from running for any
elective local position those removed from office as a result of an administrative case. It
appears that respondent Sulong had previously won as mayor of Lapuyan on January 18,
1988. In the May 11, 1992, and again in the May 8, 1995 elections, he was reelected. In a
petition for disqualification, petitioner alleged that in 1991, during his first term as mayor of
Lapuyan, respondent Sulong, along with a municipal councilor of Lapuyan and several other
individuals, was administratively charged (AC No. 12-91) with various offenses, and that, on
February 4, 1992, the Sangguniang Panlalawigan of Zamboanga del Sur found him guilty of
the charges and ordered his removal from office. Petitioner claimed that this decision had
become final and executory, and consequently the then vice-mayor of Lapuyan, Vicente
Imbing, took his oath as mayor vice respondent Sulong on March 3, 1992.
Respondent Sulong denied that the decision in AC No. 12-91 had become final and
executory. He averred that after receiving a copy of the decision on February 17, 1992, he
filed a motion for reconsideration and/or notice of appeal thereof on February 18, 1992; that

on February 27, 1992, the Sangguniang Panlalawigan required Jim Lingating, the
complainant in AC No. 12-91, to comment on respondent Sulongs motion for
reconsideration and/or notice of appeal; that the said complainant had not yet complied
therewith and his (respondent Sulongs) motion had consequently remained pending.
Respondent Sulong denied he had been removed from office by virtue of the decision in AC
No. 12-91.
Held: Petitioner contends that the COMELEC en banc erred in applying the ruling in
Aguinaldo v. Commission on Elections (212 SCRA 768 [1992]) in holding that the reelection
of respondent Sulong in 1992 and 1995 as mayor of Lapuyan had the effect of condoning
the misconduct for which he was ordered dismissed by the Sangguniang Panlalawigan of
Zamboanga del Sur. Petitioner cites Reyes v. Commission on Elections (254 SCRA 514, 525526 [1996]) in which we held that an elective local executive officer, who is removed before
the expiration of the term for which he was elected, is disqualified from being a candidate
for a local elective position under Section 40[b] of the Local Government Code.
Xxx
However, Reyes cannot be applied to this case because it appears that the 1992 decision of
the Sangguniang Panlalawigan, finding respondent Sulong guilty of dishonesty, falsification
and malversation of public funds, has not until now become final. X x x The filing of his
motion for reconsideration prevented the decision of Sangguniang Panlalawigan from
becoming final.
While R.A. No. 7160 on disciplinary actions is silent on the filing of a motion for
reconsideration, the same cannot be interpreted as a prohibition against the filing of a
motion for reconsideration. x x x.
There is thus no decision finding respondent guilty to speak of. As Provincial
Secretary of Zamboanga del Sur Wilfredo Cimafranca attested, the Sangguniang
Panlalawigan simply considered the matter as having become moot and academic because
it was overtaken by the local elections of May [11], 1992.
Neither can the succession of the then vice-mayor of Lapuyan x x x and the highest
ranking municipal councilor of Lapuyan x x x to the offices of mayor and vice-mayor,
respectively, be considered proof that the decision in AC No. 12-91 had become final
because it appears to have been made pursuant to Sec. 68 of the Local Government Code,
which makes decisions in administrative cases immediately executory.
Indeed, considering the failure of the Sangguniang Panlalawigan to resolve
respondents motion, it is unfair to the electorate to be told after they have voted for
respondent Sulong that after all he is disqualified, especially since at the time of the
elections on May 14, 2001, the decision of the Sangguniang Panlalawigan had been rendered
nearly ten years ago. (Atty. Miguel M. Lingating v. Commission on Elections and
Cesar B. Sulong, G.R. No. 153475, Nov. 13, 2002, En Banc [Mendoza])

372. When may a permanent vacancy arise under Section 44 of the Local Government
Code?
Held: Under Section 44, a permanent vacancy arises when an elective official fills a
higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office,
voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of
his office. (Navarro v. Court of Appeals, 355 SCRA 672, Mar. 28, 2001, 1 st Div.
[Kapunan])
373. How is Section 45(b) of the Local Government Code to be interpreted? What is the
reason behind the right given to a political party to nominate a replacement where a
permanent vacancy occurs in the Sanggunian?
Held: What is crucial is the interpretation of Section 45(b) providing that x x x only
the nominee of the political party under which the Sanggunian member concerned has been
elected and whose elevation to the position next higher in rank created the last vacancy in
the Sanggunian shall be appointed in the manner hereinabove provided. The appointee
shall come from the political party as that of the Sanggunian member who caused the
vacancy x x x.
The reason behind the right given to a political party to nominate a replacement
where a permanent vacancy occurs in the Sanggunian is to maintain the party
representation as willed by the people in the election (Aquilino Pimentel, the Local
Government Code of 1991, The Key to National Development, p. 150).
With the elevation of petitioner Tamayo, who belonged to REFORMA-LM, to the
position of Vice-Mayor, a vacancy occurred in the Sanggunian that should be filled up with
someone who should belong to the political party of petitioner Tamayo. Otherwise,
REFORMA-LMs representation in the Sanggunian would be diminished. To argue that the
vacancy created was that formerly held by Rolando Lalas, a LAKAS-NUCD-Kampi member,
would result in the increase of that partys representation in the Sanggunian at the expense
of the REFORMA-LM. This interpretation is contrary to the letter and spirit of the law and
thus violative of a fundamental rule in statutory construction which is to ascertain and give
effect to the intent and purpose of the law (Manila Lodge No. 761 v. Court of Appeals, 73
SCRA 12 [1976]). As earlier pointed out, the reason behind par. (b), section 44 of the Local
Government Code is the maintenance of party representation in the Sanggunian in
accordance with the will of the electorate.
The last vacancy in the Sanggunian refers to that created by the elevation of the
member formerly occupying the next higher in rank which in turn also had become vacant
by any of the causes already enumerated. The term last vacancy is thus used in Sec. 45
(b) to differentiate it from the other vacancy previously created. The term by no means
refers to the vacancy in the No. 8 position which occurred with the elevation of Rolando
Lalas to the seventh position in the Sanggunian. Such construction will result in absurdity.
(Navarro v. Court of Appeals, 355 SCRA 672, Mar. 28, 2001, 1 st Div. [Kapunan])
374.

May local elective officials practice their profession or engage in any occupation?

Ans.: All governors, city and municipal mayors are prohibited from practicing their
profession or engaging in any occupation other than the exercise of their functions as local
chief executives. (Sec. 90[a], LGC)
Sanggunian members may practice their profession, engage in any occupation, or
teach in schools except during session hours. (Sec. 90[b], LGC)

Sanggunian members who are also members of the Bar shall not:
(a)

Appear as counsel before any court in any civil case wherein a local government
unit or any office, agency, or instrumentality of the government is the adverse party;
(b)
Appear as counsel in any criminal case wherein an officer or employee of the
national or local government is accused of an offense committed in relation to his office;
(c)
Collect any fee for their appearance in administrative proceedings involving the
local government unit of which he is an official; and
(d)
Use property and personnel of the government except when the sanggunian
member concerned is defending the interest of the Government. (Sec. 90[b], LGC)
375. Whether or not the plebiscites scheduled for the creation of Barangays Karangalan
and Napico should be suspended or cancelled in view of the pending boundary dispute
between the two local governments.
Held: To begin with, we agree with the position of the COMELEC that Civil Case No. 94-3006
involving the boundary dispute between the Municipality of Cainta and the City of Pasig
presents a prejudicial question which must first be decided before the plebiscites for the
creation of the proposed barangays may be held.
Xxx
In the case at bar, while the City of Pasig vigorously claims that the areas covered by the
proposed Barangays Karangalan and Napico are within its territory, it can not deny that
portions of the same area are included in the boundary dispute case pending before the
Regional Trial Court of Antipolo. Surely, whether the areas in controversy shall be decided as
within the territorial jurisdiction of the Municipality of Cainta or the City of Pasig has material
bearing to the creation of the proposed Barangays Karangalan and Napico. Indeed, a
requisite for the creation of a barangay is for its territorial jurisdiction to be properly
identified by metes and bounds or by more or less permanent natural boundaries (Sec.
386[b], R.A. No. 7160). Precisely because territorial jurisdiction is an issue raised in the
pending civil case, until and unless such issue is resolved with finality, to define the
territorial jurisdiction of the proposed barangays would only be an exercise in futility. Not
only that, we would be paving the way for potentially ultra vires acts of such barangays. X x
x
Moreover, considering the expenses entailed in the holding of plebiscites, it is far more
prudent to hold in abeyance the conduct of the same, pending final determination of
whether or not the entire area of the proposed barangays are truly within the territorial
jurisdiction of the City of Pasig.
Neither do we agree that merely because a plebiscite had already been held in the case of
the proposed Barangay Napico, the petition of the Municipality of Cainta has already been
rendered moot and academic. The issue raised by the Municipality of Cainta in its petition
before the COMELEC against the holding of the plebiscite for the creation of Barangay
Napico are still pending determination before the Antipolo Regional Trial Court.
Xxx
Therefore, the plebiscite on the creation of Barangay Karangalan should be held in abeyance
pending final resolution of the boundary dispute between the City of Pasig and the
Municipality of Cainta by the Regional Trial Court of Antipolo City. In the same vein, the
plebiscite held on March 15, 1997 to ratify the creation of Barangay Napico, Pasig City,

should be annulled and set aside. (City of Pasig v. COMELEC, 314 SCRA 179, Sept. 10,
1999, En Banc [Ynares-Santiago])

PUBLIC INTERNATIONAL LAW

376. Discuss the contemporary view on the rightful place of an Individual in International
Law? Does he remain a mere object of International Law, or is he now a proper subject
of International Law?
Held: Then came the long and still ongoing debate on what should be the subject of
international law. The 20th century saw the dramatic rise and fall of different types and hues
of authoritarianism the fascism of Italys Mussolini and Germanys Hitler, the militarism of
Japans Hirohito and the communism of Russias Stalin, etc. The sinking of these isms led to
the elevation of the rights of the individual against the state. Indeed, some species of
human rights have already been accorded universal recognition (See Universal Declaration
of Human Rights [1948], The International Covenant on Economic, Social and Cultural Rights
[1966] and The International Covenant on Civil and Political Rights [1966]). Today, the drive
to internationalize rights of women and children is also on high gear (The Convention on the
Elimination of All Forms of Discrimination Against Women [CEDAW] otherwise known as The
Bill
of
Rights
for
Women was adopted by the UN General Assembly in December 1979. As of November
1999, one hundred sixty seven [167] states including the Philippines have ratified or
acceded to it. See Statement of Angela King, Special Adviser to the Secretary General of
the UN on Gender Issues and Advancement of Women, Judicial Colloquium on the
Application of International Human Rights Law at the Domestic Level, Vienna, Austria,
October 27, 1999). The higher rating given to human rights on the hierarchy of values
necessarily led to the re-examination of the rightful place of the individual in international
law. Given the harshest eye is the moss-covered doctrine that international law deals only
with States and that individuals are not its subject. For its undesirable corollary is that subdoctrine that an individuals right in international law is a near cipher. Translated in
extradition law, the view that once commanded a consensus is that since a fugitive is a
mere object and not a subject of international law, he is bereft of rights. An extraditee, so it
was held, is a mere object transported from one state to the other as an exercise of the
sovereign will of the two states involved. (Blakesley and Lagodny, Finding Harmony Amidst
Disagreement Over Extradition, Jurisdiction, The Role of Human Rights and Issues of
Extraterritoriality Under International Criminal Law, Vanderbilt Journal of Transnational Law,
Vol. 24, No. 1, p. 44 [1991]) The re-examination consigned this pernicious doctrine to the
museum of ideas (See generally Kelsen, Principles of International Law, 2 nd ed. [1966];
Korowicz, The Problem of the International Personality of Individuals, 50 Am. J., Intl. Law 553
[1966]). The new thinkers of international law then gave a significant shape to the role and
rights of the individual in state-concluded treaties and other international agreements. X x x
(Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No.
125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])

377.

What is the doctrine of incorporation? How is it applied by local courts?

Held: Under the doctrine of incorporation, rules of international law form part of the law of
the land and no further legislative action is needed to make such rules applicable in the
domestic sphere.
The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are
confronted with situations in which there appears to be a conflict between a rule of
international law and the provisions of the Constitution or statute of the local state. Efforts
should first be exerted to harmonize them, so as to give effect to both since it is to be
presumed that municipal law was enacted with proper regard for the generally accepted
principles of international law in observance of the Incorporation Clause in Section 2, Article
II of the Constitution. In a situation however, where the conflict is irreconcilable and a choice
has to be made between a rule of international law and municipal law, jurisprudence
dictates that municipal law should be upheld by the municipal courts for the reason that
such courts are organs of municipal law and are accordingly bound by it in all circumstances.
The fact that international law has been made part of the law of the land does not pertain to
or imply the primacy of international law over national or municipal law in the municipal
sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of
international law are given equal standing with, but are not superior to, national legislative
enactments. Accordingly, the principle of lex posterior derogat priori takes effect a treaty
may repeal a statute and a statute may repeal a treaty. In states where the Constitution is
the highest law of the land, such as the Republic of the Philippines, both statutes and
treaties may be invalidated if they are in conflict with the Constitution. (Secretary of
Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc [Melo])
378. Is sovereignty really absolute and all-encompassing? If not, what are its restrictions
and limitations?
Held: While sovereignty has traditionally been deemed absolute and all-encompassing on
the domestic level, it is however subject to restrictions and limitations voluntarily agreed to
by the Philippines, expressly or impliedly, as a member of the family of nations. By the
doctrine of incorporation, the country is bound by generally accepted principles of
international law, which are considered to be automatically part of our own laws. One of the
oldest and most fundamental rules in international law is pacta sunt servanda international
agreements must be performed in good faith.
A state which has contracted valid
international obligations is bound to make in its legislations such modifications as may be
necessary to ensure the fulfillment of the obligations.
By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By
their voluntary act, nations may surrender some aspects of their state power in exchange for
greater benefits granted by or derived from a convention or pact. After all, states, like
individuals, live with coequals, and in pursuit of mutually covenanted objectives and
benefits, they also commonly agree to limit the exercise of their otherwise absolute rights.
Thus, treaties have been used to record agreements between States concerning such widely
diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the
termination of war, the regulation of conduct of hostilities, the formation of alliances, the
regulation of commercial relations, the settling of claims, the laying down of rules governing
conduct in peace and the establishment of international organizations. The sovereignty of a
state therefore cannot in fact and in reality be considered absolute. Certain restrictions
enter into the picture: (1) limitations imposed by the very nature of membership in the
family of nations and (2) limitations imposed by treaty stipulations. (Tanada v. Angara,
272 SCRA 18, May 2, 1997 [Panganiban])
379. What must a person who feels aggrieved by the acts of a foreign sovereign do to
espouse his cause?

Held: Private respondent is not left without any legal remedy for the redress of its
grievances. Under both Public International Law and Transnational Law, a person who feels
aggrieved by the acts of a foreign sovereign can ask his own government to espouse his
cause through diplomatic channels.
Private respondent can ask the Philippine government, through the Foreign Office, to
espouse its claims against the Holy See. Its first task is to persuade the Philippine
government to take up with the Holy See the validity of its claim. Of course, the Foreign
Office shall first make a determination of the impact of its espousal on the relations between
the Philippine government and the Holy See (Young, Remedies of Private Claimants Against
Foreign States, Selected Readings on Protection by Law of Private Foreign Investments 905,
919 [1964]). Once the Philippine government decides to espouse the claim, the latter
ceases to be a private cause.
According to the Permanent Court of International Justice, the forerunner of the
International Court of Justice:
By taking up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own rights its right to ensure, in the person of its subjects, respect for the rules of international law
(The Mavrommatis Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).
(Holy See, The v. Rosario, Jr., 238 SCRA 524, 538-539, Dec. 1, 1994, En Banc
[Quiason])
380.

Discuss the Status of the Vatican and the Holy See in International Law.

Held: Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch
and he, as the Holy See, was considered a subject of International Law. With the loss of the
Papal States and the limitation of the territory under the Holy See to an area of 108.7 acres,
the position of the Holy See in International Law became controversial.
In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the
exclusive dominion and sovereign jurisdiction of the Holy See over the Vatican City. It also
recognized the right of the Holy See to receive foreign diplomats, to send its own diplomats
to foreign countries, and to enter into treaties according to International Law.
The Lateran Treaty established the statehood of the Vatican City for the purpose of assuring
to the Holy See absolute and visible independence and of guaranteeing to it indisputable
sovereignty also in the field of international relations.
In view of the wordings of the Lateran Treaty, it is difficult to determine whether the
statehood is vested in the Holy See or in the Vatican City. Some writers even suggested that
the treaty created two international persons - the Holy See and Vatican City.
The Vatican City fits into none of the established categories of states, and the attribution to
it of sovereignty must be made in a sense different from that in which it is applied to other
states. In a community of national states, the Vatican City represents an entity organized
not for political but for ecclesiastical purposes and international objects. Despite its size and
object, the Vatican City has an independent government of its own, with the Pope, who is
also head of the Roman Catholic Church, as the Holy See or Head of State, in conformity with
its traditions, and the demands of its mission in the world. Indeed, the world-wide interests
and activities of the Vatican City are such as to make it in a sense an international state.

One authority wrote that the recognition of the Vatican City as a state has significant
implication - that it is possible for any entity pursuing objects essentially different from those
pursued by states to be invested with international personality.
Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the
Holy See and not in the name of the Vatican City, one can conclude that in the Pope's own
view, it is the Holy See that is the international person.
The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign.
The Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic representations
with the Philippine government since 1957. This appears to be the universal practice in
international relations. (Holy See, The v. Rosario, Jr., 238 SCRA 524, 533-534, Dec. 1,
1994, En Banc [Quiason])
381.

What are international organizations? Discuss their nature.

Held: International organizations are institutions constituted by international agreement

between two or more States to accomplish common goals. The legal personality of these
international organizations has been recognized not only in municipal law, but in
international law as well.
Permanent international commissions and administrative bodies have been created by the
agreement of a considerable number of States for a variety of international purposes,
economic or social and mainly non-political. In so far as they are autonomous and beyond
the control of any one State, they have distinct juridical personality independent of the
municipal law of the State where they are situated. As such, they are deemed to possess a
species of international personality of their own. (SEAFDEC-AQD v. NLRC, 206 SCRA
283, Feb. 14, 1992)
382. Discuss the basic immunities of international organizations and the reason for
affording them such immunities.
Held: One of the basic immunities of an international organization is immunity from local
jurisdiction, i.e., that it is immune from legal writs and processes issued by the tribunals of
the country where it is found. The obvious reason for this is that the subjection of such an
organization to the authority of the local courts would afford a convenient medium through
which the host government may interfere in their operations or even influence or control its
policies and decisions; besides, such subjection to local jurisdiction would impair the
capacity of such body to discharge its responsibilities impartially on behalf of its memberstates. (SEAFDEC-AQD v. NLRC, 206 SCRA 283, Feb. 4, 1992)
383.

Discuss the two conflicting concepts of sovereign immunity from suit.

Held: There are two conflicting concepts of sovereign immunity, each widely held and
firmly established. According to the classical or absolute theory, a sovereign cannot, without
its consent, be made a respondent in the courts of another sovereign. According to the
newer or restrictive theory, the immunity of the sovereign is recognized only with regard to
public acts or acts jure imperii of a state, but not with regard to private acts or acts jure
gestionis.
Some states passed legislation to serve as guidelines for the executive or judicial
determination when an act may be considered as jure gestionis. The United States passed
the Foreign Sovereign Immunities Act of 1976, which defines a commercial activity as either
a regular course of commercial conduct or a particular commercial transaction or act.
Furthermore, the law declared that the commercial character of the activity shall be

determined by reference to the nature of the course of conduct or particular transaction or

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

As held in United States of America v. Guinto (supra.):

There is no question that the United States of America, like any other state, will be deemed
to have impliedly waived its non-suability if it has entered into a contract in its proprietary or
private capacity. It is only when the contract involves its sovereign or governmental
capacity that no such waiver may be implied.
(Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])
386. May the Holy See be sued for selling the land it acquired by donation from the
Archdiocese of Manila to be made site of its mission or the Apostolic Nunciature in the
Philippines but which purpose cannot be accomplished as the land was occupied by
squatters who refused to vacate the area?
Held: In the case at bench, if petitioner (Holy See) has bought and sold lands in the
ordinary course of a real estate business, surely the said transaction can be categorized as
an act jure gestionis. However, petitioner has denied that the acquisition and subsequent
disposal of Lot 5-A were made for profit but claimed that it acquired said property for the site
of its mission or the Apostolic Nunciature in the Philippines. X x x
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The
donation was made not for commercial purpose, but for the use of petitioner to construct
thereon the official place of residence of the Papal Nuncio. The right of a foreign sovereign
to acquire property, real or personal, in a receiving state, necessary for the creation and
maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on
Diplomatic Relations. This treaty was concurred in by the Philippine Senate and entered into
force in the Philippines on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and
administrative jurisdiction of the receiving state over any real action relating to private
immovable property situated in the territory of the receiving state which the envoy holds on
behalf of the sending state for the purposes of the mission. If this immunity is provided for a
diplomatic envoy, with all the more reason should immunity be recognized as regards the
sovereign itself, which in this case is the Holy See.
The decision to transfer the property and the subsequent disposal thereof are likewise
clothed with a governmental character. Petitioner did not sell Lot 5-A for profit or gain. It
merely wanted to dispose off the same because the squatters living thereon made it almost
impossible for petitioner to use it for the purpose of the donation. (Holy See, The v.
Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])
387.

How is sovereign or diplomatic immunity pleaded in a foreign court?

Held: In Public International Law, when a state or international agency wishes to plead
sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of the
state where it is sued to convey to the court that said defendant is entitled to immunity.
In the United States, the procedure followed is the process of suggestion, where the
foreign state or the international organization sued in an American court requests the
Secretary of State to make a determination as to whether it is entitled to immunity. If the
Secretary of State finds that the defendant is immune from suit, he, in turn, asks the
Attorney General to submit to the court a suggestion that the defendant is entitled to
immunity. In England, a similar procedure is followed, only the Foreign Office issues a
certification to that effect instead of submitting a suggestion.

In the Philippines, the practice is for the foreign government or the international organization
to first secure an executive endorsement of its claim of sovereign or diplomatic immunity.
But how the Philippine Foreign Office conveys its endorsement to the courts varies. In
International Catholic Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary
of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment,
informing the latter that the respondent-employer could not be sued because it enjoyed
diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the
Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57
SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to request the
Solicitor General to make, in behalf of the commander of the United States Naval Base at
Olongapo City, Zambales, a suggestion to respondent Judge. The Solicitor General
embodied the suggestion in a Manifestation and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs
moved with this Court to be allowed to intervene on the side of petitioner. The Court
allowed the said Department to file its memorandum in support of petitioners claim of
sovereign immunity.
In some cases, the defense of sovereign immunity was submitted directly to the local courts
by the respondents through their private counsels. In cases where the foreign states bypass
the Foreign Office, the courts can inquire into the facts and make their own determination as
to the nature of the acts and transactions involved. (Holy See, The v. Rosario, Jr., 238
SCRA 524, Dec. 1, 1994, En Banc [Quiason])
388. Is the determination of the executive branch of the government that a state or
instrumentality is entitled to sovereign or diplomatic immunity subject to judicial review, or
is it a political question and therefore, conclusive upon the courts?
Held: The issue of petitioners (The Holy See) non-suability can be determined by the trial
court without going to trial in light of the pleadings x x x. Besides, the privilege of sovereign
immunity in this case was sufficiently established by the Memorandum and Certification of
the Department of Foreign Affairs. As the department tasked with the conduct of the
Philippines foreign relations, the Department of Foreign Affairs has formally intervened in
this case and officially certified that the Embassy of the Holy See is a duly accredited
diplomatic mission to the Republic of the Philippines exempt from local jurisdiction and
entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this
country.
The determination of the executive arm of government that a state or
instrumentality is entitled to sovereign or diplomatic immunity is a political question that is
conclusive upon the courts. Where the plea of immunity is recognized and affirmed by the
executive branch, it is the duty of the courts to accept this claim so as not to embarrass the
executive arm of the government in conducting the countrys foreign relations. As in
International Catholic Migration Commission and in World Health Organization, we abide by
the certification of the Department of Foreign Affairs. (Holy See, The v. Rosario, Jr., 238
SCRA 524, Dec. 1, 1994, En Banc [Quiason])
389.

Discuss the Status of the Vatican and the Holy See in International Law.

Held: Before the annexation of the Papal States by Italy in 1870, the Pope was the
monarch and he, as the Holy See, was considered a subject of International Law. With the
loss of the Papal States and the limitation of the territory under the Holy See to an area of
108.7 acres, the position of the Holy See in International Law became controversial (Salonga
and Yap, Public International Law 36-37 [1992]).
In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy
recognized the exclusive dominion and sovereign jurisdiction of the Holy See over the

Vatican City. It also recognized the right of the Holy See to receive foreign diplomats, to
send its own diplomats to foreign countries, and to enter into treaties according to
International Law (Garcia, Questions and Problems in International Law, Public and Private
81 [1948]).
The Lateran Treaty established the statehood of the Vatican City "for the purpose of
assuring to the Holy See absolute and visible independence and of guaranteeing to it
indisputable sovereignty also in the field of international relations" (O'Connell, I International
Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is difficult to determine whether the
statehood is vested in the Holy See or in the Vatican City. Some writers even suggested that
the treaty created two international persons - the Holy See and Vatican City (Salonga and
Yap, supra, 37).
The Vatican City fits into none of the established categories of states, and the
attribution to it of sovereignty must be made in a sense different from that in which it is
applied to other states (Fenwick, International Law 124-125 [1948]; Cruz, International Law
37 [1991]). In a community of national states, the Vatican City represents an entity
organized not for political but for ecclesiastical purposes and international objects. Despite
its size and object, the Vatican City has an independent government of its own, with the
Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in
conformity with its traditions, and the demands of its mission in the world. Indeed, the
world-wide interests and activities of the Vatican City are such as to make it in a sense an
international state (Fenwick, supra, 125; Kelsen, Principles of International Law 160
[1956]).
One authority wrote that the recognition of the Vatican City as a state has significant
implication - that it is possible for any entity pursuing objects essentially different from those
pursued by states to be invested with international personality (Kunz, The Status of the Holy
See in International Law, 46 The American Journal of International Law 308 [1952]).
Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions
as the Holy See and not in the name of the Vatican City, one can conclude that in the Pope's
own view, it is the Holy See that is the international person.
The Republic of the Philippines has accorded the Holy See the status of a foreign
sovereign. The Holy See, through its Ambassador, the Papal Nuncio, has had diplomatic
representations with the Philippine government since 1957. This appears to be the universal
practice in international relations. (Holy See, The v. Rosario, Jr., 238 SCRA 524, 533534, Dec. 1, 1994, En Banc [Quiason])
390.

What is extradition? To whom does it apply?

Held: It is the process by which persons charged with or convicted of crime against the
law of a State and found in a foreign State are returned by the latter to the former for trial or
punishment. It applies to those who are merely charged with an offense but have not been
brought to trial; to those who have been tried and convicted and have subsequently escaped
from custody; and those who have been convicted in absentia. It does not apply to persons
merely suspected of having committed an offense but against whom no charge has been
laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil
judgment. (Weston, Falk, D' Amato, International Law and Order, 2 nd ed., p. 630
[1990], cited in Dissenting Opinion, Puno, J., in Secretary of Justice v. Hon. Ralph
C. Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc)

391.

Discuss the basis for allowing extradition.

Held: Extradition was first practiced by the Egyptians, Chinese, Chaldeans and AssyroBabylonians but their basis for allowing extradition was unclear. Sometimes, it was granted
due to pacts; at other times, due to plain good will. The classical commentators on
international law thus focused their early views on the nature of the duty to surrender an
extraditee --- whether the duty is legal or moral in character. Grotius and Vattel led the
school of thought that international law imposed a legal duty called civitas maxima to
extradite criminals. In sharp contrast, Puffendorf and Billot led the school of thought that
the so-called duty was but an "imperfect obligation which could become enforceable only by
a contract or agreement between states.
Modern nations tilted towards the view of Puffendorf and Billot that under international law
there is no duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus,
the US Supreme Court in US v. Rauscher (119 US 407, 411, 7 S Ct. 234, 236, 30 L. ed. 425
[1886]), held: x x x it is only in modern times that the nations of the earth have imposed
upon themselves the obligation of delivering up these fugitives from justice to the states
where their crimes were committed, for trial and punishment. This has been done generally
by treaties x x x Prior to these treaties, and apart from them there was no well-defined
obligation on one country to deliver up such fugitives to another; and though such delivery
was often made it was upon the principle of comity x x x. (Dissenting Opinion, Puno, J.,
in Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Jan. 18, 2000, En
Banc)
392.

What is the nature of an extradition proceeding? Is it akin to a criminal proceeding?

Held: [A]n extradition proceeding is sui generis. It is not a criminal proceeding which will
call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin
with, the process of extradition does not involve the determination of the guilt or innocence
of an accused. His guilt or innocence will be adjudged in the court of the state where he will
be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the
guilt or innocence of an accused cannot be invoked by an extraditee especially by one
whose extradition papers are still undergoing evaluation. As held by the US Supreme Court
in United States v. Galanis:
An extradition proceeding is not a criminal prosecution, and the constitutional safeguards
that accompany a criminal trial in this country do not shield an accused from extradition
pursuant to a valid treaty. (Wiehl, Extradition Law at the Crossroads: The Trend Toward
Extending Greater Constitutional Procedural Protections To Fugitives Fighting Extradition
from the United States, 19 Michigan Journal of International Law 729, 741 [1998], citing
United States v. Galanis, 429 F. Supp. 1215 [D. Conn. 1977])
There are other differences between an extradition proceeding and a criminal proceeding.
An extradition proceeding is summary in natural while criminal proceedings involve a fullblown trial. In contradistinction to a criminal proceeding, the rules of evidence in an
extradition proceeding allow admission of evidence under less stringent standards. In terms
of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable
doubt for conviction while a fugitive may be ordered extradited upon showing of the
existence of a prima facie case. Finally, unlike in a criminal case where judgment becomes
executory upon being rendered final, in an extradition proceeding, our courts may adjudge
an individual extraditable but the President has the final discretion to extradite him. The
United States adheres to a similar practice whereby the Secretary of State exercises wide
discretion in balancing the equities of the case and the demands of the nation's foreign
relations before making the ultimate decision to extradite.

As an extradition proceeding is not criminal in character and the evaluation stage in an

extradition proceeding is not akin to a preliminary investigation, the due process safeguards
in the latter do not necessarily apply to the former. This we hold for the procedural due
process required by a given set of circumstances must begin with a determination of the
precise nature of the government function involved as well as the private interest that has
been affected by governmental action. The concept of due process is flexible for not all
situations calling for procedural safeguards call for the same kind of procedure.
(Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000, En
Banc [Puno])
393. Will the retroactive application of an extradition treaty violate the constitutional
prohibition against "ex post facto" laws?
Held: The prohibition against ex post facto law applies only to criminal legislation which
affects the substantial rights of the accused. This being so, there is no merit in the
contention that the ruling sustaining an extradition treatys retroactive application violates
the constitutional prohibition against ex post facto laws. The treaty is neither a piece of
criminal legislation nor a criminal procedural statute. (Wright v. CA, 235 SCRA 341, Aug.
15, 1994 [Kapunan])
394.

Discuss the rules in the interpretation of extradition treaties.

Held: [A]ll treaties, including the RP-US Extradition Treaty, should be interpreted in light of
their intent. Nothing less than the Vienna Convention on the Law of Treaties to which the
Philippines is a signatory provides that a treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in their context
and in light of its object and purpose. X x x. It cannot be gainsaid that today, countries like
the Philippines forge extradition treaties to arrest the dramatic rise of international and
transnational crimes like terrorism and drug trafficking. Extradition treaties provide the
assurance that the punishment of these crimes will not be frustrated by the frontiers of
territorial sovereignty. Implicit in the treaties should be the unbending commitment that the
perpetrators of these crimes will not be coddled by any signatory state.
It ought to follow that the RP-US Extradition Treaty calls for an interpretation that will
minimize if not prevent the escape of extraditees from the long arm of the law and expedite
their trial. X x x
[A]n equally compelling factor to consider is the understanding of the parties themselves to
the RP-US Extradition Treaty as well as the general interpretation of the issue in question by
other countries with similar treaties with the Philippines. The rule is recognized that while
courts have the power to interpret treaties, the meaning given them by the departments of
government particularly charged with their negotiation and enforcement is accorded great
weight. The reason for the rule is laid down in Santos III v. Northwest Orient Airlines, et al.
(210 SCRA 256, 261 [1992]), where we stressed that a treaty is a joint executive-legislative
act which enjoys the presumption that it was first carefully studied and determined to be
constitutional before it was adopted and given the force of law in the country. (Secretary
of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc
[Puno])
395. Is respondent Mark Jimenez entitled to bail during the pendency of the Extradition
Proceeding?
Held: We agree with petitioner. As suggested by the use of the word conviction, the
constitutional provision on bail x x x, as well as Section 4 of Rule 114 of the Rules of Court,

applies only when a person has been arrested and detained for violation of Philippine
criminal laws. It does not apply to extradition proceedings, because extradition courts do
not render judgments of conviction or acquittal.
Moreover, the constitutional right to bail flows from the presumption of innocence in
favor of every accused who should not be subjected to the loss of freedom as thereafter he
would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. (De la
Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, Jr. [later CJ]) It follows
that the constitutional provision on bail will not apply to a case like extradition, where the
presumption of innocence is not an issue.
The provision in the Constitution stating that the right to bail shall not be impaired even
when the privilege of the writ of habeas corpus is suspended does not detract from the rule
that the constitutional right to bail is available only in criminal proceedings. It must be
noted that the suspension of the privilege of the writ of habeas corpus finds application
only to persons judicially charged for rebellion or offenses inherent in or directly connected
with invasion. (Sec. 18, Article VII, Constitution) Hence, the second sentence in the
constitutional provision on bail merely emphasizes the right to bail in criminal proceedings
for the aforementioned offenses. It cannot be taken to mean that the right is available even
in extradition proceedings that are not criminal in nature.
That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument to
grant him one in the present case. To stress, extradition proceedings are separate and distinct from the trial for the
offenses for which he is charged. He should apply for bail before the courts trying the criminal cases against him,
not before the extradition court. (Government of the United States of America v. Hon. Guillermo Purganan, G.R.
No. 148571, Sept. 24, 2002, En Banc [Panganiban])
396.

What is the exception to the No Bail Rule in Extradition Proceedings?

Held: The rule x x x is that bail is not a matter of right in extradition cases. However, the
judiciary has the constitutional duty to curb grave abuse of discretion and tyranny, as well
as the power to promulgate rules to protect and enforce constitutional rights. Furthermore,
we believe that the right to due process is broad enough to include the grant of basic
fairness to extraditees. Indeed, the right to due process extends to the life, liberty or
property of every person. It is dynamic and resilient, adaptable to every situation calling
for its application. (I.A. Cruz, Constitutional Law, 1998 ed., p. 98)
Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee
has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only
upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to
the community; and (2) that there exist special, humanitarian and compelling circumstances including, as a matter of
reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition
cases therein.
Since this exception has no express or specific statutory basis, and since it is derived essentially from
general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement
with clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an executive, not a
judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it
partakes of the nature of police assistance amongst states, which is not normally a judicial prerogative. Hence, any
intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital
international and bilateral interests of our country will not be unreasonably impeded or compromised. In short,
while this Court is ever protective of the sporting idea of fair play, it also recognizes the limits of its own

prerogatives and the need to fulfill international obligations. (Government of the United States of America v. Hon.
Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])
397. Are there special circumstances compelling enough for the Court to grant Mark
Jimenezs request for provisional release on bail?
Held: Along this line, Jimenez contends that there are special circumstances that are
compelling enough for the Court to grant his request for provisional release on bail. We
have carefully examined these circumstances and shall now discuss them.
1. Alleged Disenfranchisement
While his extradition was pending, Respondent Jimenez was elected as a member of
the House of Representatives. On that basis, he claims that his detention will disenfranchise
his Manila district of 600,000 residents. We are not persuaded. In People v. Jalosjos (324
SCRA 689, February 3, 2000, per Ynares-Santiago, J.), the Court has already debunked the
disenfranchisement argument x x x.
It must be noted that even before private respondent ran for and won a congressional
seat in Manila, it was already of public knowledge that the United States was requesting his
extradition. Hence, his constituents were or should have been prepared for the
consequences of the extradition case against their representative, including his detention
pending the final resolution of the case. Premises considered and in line with Jalosjos, we
are constrained to rule against his claim that his election to public office is by itself a
compelling reason to grant him bail.
2. Anticipated Delay
Respondent Jimenez further contends that because the extradition proceedings are
lengthy, it would be unfair to confine him during the pendency of the case. Again we are not
convinced. We must emphasize that extradition cases are summary in nature. They are
resorted to merely to determine whether the extradition petition and its annexes conform to
the Extradition Treaty, not to determine his guilt or innocence. Neither is it, as a rule,
intended to address issues relevant to the constitutional rights available to the accused in a
criminal action.
We are not overruling the possibility that petitioner may, in bad faith, unduly delay
the proceedings. This is quite another matter that is not at issue here. Thus, any further
discussion of this point would be merely anticipatory and academic.
However, if the delay is due to maneuverings of respondent, with all the more reason
would the grant of bail not be justified. Giving premium to delay by considering it as a
special circumstance for the grant of bail would be tantamount to giving him the power to
grant bail to himself. It would also encourage him to stretch out and unreasonably delay the
extradition proceedings even more. This we cannot allow.

3. Not a Flight Risk?

Jimenez further claims that he is not a flight risk. To support this claim, he stresses
that he learned of the extradition request in June 1999; yet, he has not fled the country.
True, he has not actually fled during the preliminary stages of the request for his extradition.
Yet, this fact cannot be taken to mean that he will not flee as the process moves forward to
its conclusion, as he hears the footsteps of the requesting government inching closer and
closer. That he has not yet fled from the Philippines cannot be taken to mean that he will
stand his ground and still be within reach of our government if and when it matters; that is,
upon the resolution of the Petition for Extradition.
In any event, it is settled that bail may be applied for and granted by the trial court at
anytime after the applicant has been taken into custody and prior to judgment, even after
bail has been previously denied. In the present case, the extradition court may continue
hearing evidence on the application for bail, which may be granted in accordance with the
guidelines in this Decision. (Government of the United States of America v. Hon.
Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

398.

Discuss the Five Postulates of Extradition.

Held:
1. Extradition Is a Major Instrument for the Suppression of Crime.
First, extradition treaties are entered into for the purpose of suppressing crime by
facilitating the arrest and custodial transfer (Bassiouni, International Extradition, 1987 ed.,
p. 68) of a fugitive from one state to the other.
With the advent of easier and faster means of international travel, the flight of
affluent criminals from one country to another for the purpose of committing crime and
evading prosecution has become more frequent. Accordingly, governments are adjusting
their methods of dealing with criminals and crimes that transcend international boundaries.
Today, a majority of nations in the world community have come to look upon
extradition as the major effective instrument of international co-operation in the
suppression of crime. (Bassiouni, supra, p. 21) It is the only regular system that has been
devised to return fugitives to the jurisdiction of a court competent to try them in accordance
with municipal and international law (Id., p. 67).
Xxx
Indeed, in this era of globalization, easier and faster international travel, and an
expanding ring of international crimes and criminals, we cannot afford to be an isolationist
state. We need to cooperate with other states in order to improve our chances of
suppressing crime in our country.
2. The Requesting State Will Accord Due Process to the Accused.
Second, an extradition treaty presupposes that both parties thereto have examined,
and that both accept and trust, each others legal system and judicial process (Coquia, On

Implementation of the RP-US Extradition Treaty, The Lawyers Review, August 31, 2000, p.
4). More pointedly, our duly authorized representatives signature on an extradition treaty
signifies our confidence in the capacity and willingness of the other state to protect the basic
rights of the person sought to be extradited (See Bassiouni, p. 546; citing 221 US 508, 512
[1910]). That signature signifies our full faith that the accused will be given, upon
extradition to the requesting state, all relevant and basic rights in the criminal proceedings
that will take place therein; otherwise, the treaty would not have been signed, or would have
been directly attacked for its unconstitutionality.
3. The Proceedings Are Sui Generis.
Third, as pointed out in Secretary of Justice v. Lantion (Supra), extradition
proceedings are not criminal in nature. In criminal proceedings, the constitutional rights of
the accused are at fore; in extradition which is sui generis in a class by itself they are not.
Xxx
Given the foregoing, it is evident that the extradition court is not called upon to
ascertain the guilt or the innocence of the person sought to be extradited (Secretary of
Justice v. Lantion, supra.). Such determination during the extradition proceedings will only
result in needless duplication and delay. Extradition is merely a measure of international
judicial assistance through which a person charged with or convicted of a crime is restored
to a jurisdiction with the best claim to try that person. It is not part of the function of the
assisting authorities to enter into questions that are the prerogative of that jurisdiction
(Shearer, Extradition in International Law, 1971 ed., p. 157). The ultimate purpose of
extradition proceedings in court is only to determine whether the extradition request
complies with the Extradition Treaty, and whether the person sought is extraditable (Id., p.
545).
4

Compliance Shall Be in Good Faith.

Fourth, our executive branch of government voluntarily entered into the Extradition Treaty,
and our legislative branch ratified it. Hence, the Treaty carries the presumption that its
implementation will serve the national interest.
Fulfilling our obligations under the Extradition Treaty promotes comity (In line with the Philippine policy of
cooperation and amity with all nations set forth in Article II, Section 2, Constitution). On the other hand, failure to
fulfill our obligations thereunder paints at bad image of our country before the world community. Such failure
would discourage other states from entering into treaties with us, particularly an extradition treaty that hinges on
reciprocity.
Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations
under the Treaty (Secretary of Justice v. Lantion, supra.). This principle requires that we
deliver the accused to the requesting country if the conditions precedent to extradition, as
set forth in the Treaty, are satisfied. In other words, [t]he demanding government, when it
has done all that the treaty and the law require it to do, is entitled to the delivery of the
accused on the issue of the proper warrant, and the other government is under obligation to
make the surrender. (Wright v. Henkel, 190 U.S. 40, 62, March 23, 1903) Accordingly, the
Philippines must be ready and in a position to deliver the accused, should it be found proper.

There Is an Underlying Risk of Flight.

Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption
finds reinforcement in the experience of the executive branch: nothing short of confinement

can ensure that the accused will not flee the jurisdiction of the requested state in order to
thwart their extradition to the requesting state.
The present extradition case further validates the premise that persons sought to be
extradited have a propensity to flee. Indeed, extradition hearings would not even begin, if
only the accused were willing to submit to trial in the requesting country (Persily,
International Extradition and the Right to Bail, 34 Stan. J. Intl L. 407 [Summer 1988]).
Prior acts of herein respondent (1) leaving the requesting state right before the conclusion
of his indictment proceedings there; and (2) remaining in the requested state despite
learning that the requesting state is seeking his return and that the crimes he is charged
with are bailable eloquently speak of his aversion to the processes in the requesting state,
as well as his predisposition to avoid them at all cost. These circumstances point to an everpresent, underlying high risk of flight. He has demonstrated that he has the capacity and
the will to flee. Having fled once, what is there to stop him, given sufficient opportunity,
from fleeing a second time? (Government of the United States of America v. Hon.
Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])
399.

Discuss the Ten Points to consider in Extradition Proceedings?

Held: 1. The ultimate purpose of extradition proceedings is to determine whether the

request expressed in the petition, supported by its annexes and the evidence that may be
adduced during the hearing of the petition, complies with the Extradition Treaty and Law;
and whether the person sought is extraditable. The proceedings are intended merely to
assist the requesting state in bringing the accused or the fugitive who has illegally escaped
back to its territory, so that the criminal process may proceed therein.
2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust
in the reliability or soundness of the legal and judicial system of its treaty partner; as well as
in the ability and the willingness of the latter to grant basic rights to the accused in the
pending criminal case therein.
3. By nature then, extradition proceedings are not equivalent to a criminal case in which
guilt or innocence is determined. Consequently, an extradition case is not one in which the
constitutional rights of the accused are necessarily available. It is more akin, if at all, to a
courts request to police authorities for the arrest of the accused who is at large or has
escaped detention or jumped bail. Having once escaped the jurisdiction of the requesting
state, the reasonable prima facie presumption is that the person would escape again if given
the opportunity.
4. Immediately upon receipt of the petition for extradition and its supporting documents,
the judge shall make a prima facie finding whether the petition is sufficient in form and
substance, whether it complies with the Extradition Treaty and Law, and whether the person
sought is extraditable. The magistrate has discretion to require the petitioner to submit
further documentation, or to personally examine the affiants or witnesses. If convinced that
a prima facie case exists, the judge immediately issues a warrant for the arrest of the
potential extraditee and summons him or her to answer and to appear at scheduled
hearings on the petition.
5. After being taken into custody, potential extraditees may apply for bail. Since the
applicants have a history of absconding, they have the burden of showing that (a) there is

no flight risk and no danger to the community; and (b) there exist special, humanitarian or
compelling circumstances. The grounds used by the highest court in the requesting state for
the grant of bail therein may be considered, under the principle of reciprocity as a special
circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial
discretion in the context of the peculiar facts of each case.
6. Potential extraditees are entitled to the rights to due process and to fundamental
fairness. Due process does not always call for a prior opportunity to be heard. A
subsequent opportunity is sufficient due to the flight risk involved. Indeed, available during
the hearings on the petition and the answer is the full chance to be heard and to enjoy
fundamental fairness that is compatible with the summary nature of extradition.
7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark
of democracy and the conscience of society. But it is also well aware of the limitations of its
authority and of the need for respect for the prerogatives of the other co-equal and coindependent organs of government.
8. We realize that extradition is essentially an executive, not a judicial, responsibility arising
out of the presidential power to conduct foreign relations and to implement treaties. Thus,
the Executive Department of government has broad discretion in its duty and power of
implementation.
9. On the other hand, courts merely perform oversight functions and exercise review
authority to prevent or excise grave abuse and tyranny. They should not allow contortions,
delays and over-due process every little step of the way, lest these summary extradition
proceedings become not only inutile but also sources of international embarrassment due to
our inability to comply in good faith with a treaty partners simple request to return a
fugitive. Worse, our country should not be converted into a dubious haven where fugitives
and escapees can unreasonably delay, mummify, mock, frustrate, checkmate and defeat the
quest for bilateral justice and international cooperation.
10. At bottom, extradition proceedings should be conducted with all deliberate speed to
determine compliance with the Extradition Treaty and Law; and, while safeguarding basic
individual rights, to avoid the legalistic contortions, delays and technicalities that may
negate that purpose. (Government of the United States of America v. Hon.
Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

400.

What is a Treaty? Discuss.

Held: A treaty, as defined by the Vienna Convention on the Law of Treaties, is an

international instrument concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments, and whatever its particular designation. There are many other terms used for
a treaty or international agreement, some of which are: act, protocol, agreement,
compromis d' arbitrage, concordat, convention, declaration, exchange of notes, pact,
statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have pointed out

that the names or titles of international agreements included under the general term treaty
have little or no significance. Certain terms are useful, but they furnish little more than
mere description
Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1 regarding
the use of terms in the present Convention are without prejudice to the use of those terms,
or to the meanings which may be given to them in the internal law of the State. (BAYAN
[Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No.
138570, Oct. 10, 2000, En Banc [Buena])
401.

Discuss the binding effect of treaties and executive agreements in international law.

Held:
[I]n international law, there is no difference between treaties and executive
agreements in their binding effect upon states concerned, as long as the functionaries have
remained within their powers. International law continues to make no distinction between
treaties and executive agreements: they are equally binding obligations upon nations.
(BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora,
G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])
402. Does the Philippines recognize the binding effect of executive agreements even
without the concurrence of the Senate or Congress?
Held: In our jurisdiction, we have recognized the binding effect of executive agreements
even without the concurrence of the Senate or Congress. In Commissioner of Customs v.
Eastern Sea Trading (3 SCRA 351, 356-357 [1961]), we had occasion to pronounce:
x x x the right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest
days of our history we have entered into executive agreements covering such subjects as
commercial and consular relations, most-favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the settlement of claims.
The validity of these has never been seriously questioned by our courts. "
(BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora,
G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])
403.

What is a "protocol de cloture"? Will it require concurrence by the Senate?

Held: A final act, sometimes called protocol de cloture, is an instrument which records the
winding up of the proceedings of a diplomatic conference and usually includes a
reproduction of the texts of treaties, conventions, recommendations and other acts agreed
upon and signed by the plenipotentiaries attending the conference. It is not the treaty itself.
It is rather a summary of the proceedings of a protracted conference which may have taken
place over several years. It will not require the concurrence of the Senate. The documents
contained therein are deemed adopted without need for ratification. (Tanada v. Angara,
272 SCRA 18, May 2, 1997 [Panganiban])
404.

What is the most-favored-nation clause? What is its purpose?

Answer: 1. The most-favored-nation clause may be defined, in general, as a pledge by a

contracting party to a treaty to grant to the other party treatment not less favorable than
that which has been or may be granted to the most favored among other countries. The
clause has been commonly included in treaties of commercial nature.
There are generally two types of most-favored-nation clause, namely, conditional and
unconditional. According to the clause in its unconditional form, any advantage of whatever

kind which has been or may in future be granted by either of the contracting parties to a
third State shall simultaneously and unconditionally be extended to the other under the
same or equivalent conditions as those under which it has been granted to the third State.
(Salonga & Yap, Public International Law, 5th Edition, 1992, pp. 141-142)
2. The purpose of a most favored nation clause is to grant to the contracting party
treatment not less favorable than that which has been or may be granted to the "most
favored" among other countries. The most favored nation clause is intended to establish the
principle of equality of international treatment by providing that the citizens or subjects of
the contracting nations may enjoy the privileges accorded by either party to those of the
most favored nation (Commissioner of Internal Revenue v. S.C. Johnson and Son,
Inc., 309 SCRA 87, 107-108, June 25, 1999, 3 rd Div. [Gonzaga-Reyes])
405. What is the essence of the principle behind the "most-favored-nation" clause as
applied to tax treaties?
Held: The essence of the principle is to allow the taxpayer in one state to avail of more
liberal provisions granted in another tax treaty to which the country of residence of such
taxpayer is also a party provided that the subject matter of taxation x x x is the same as
that in the tax treaty under which the taxpayer is liable.
In Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87,
June 25, 1999, the SC did not grant the claim filed by S.C. Johnson and Son, Inc., a nonresident foreign corporation based in the USA, with the BIR for refund of overpaid
withholding tax on royalties pursuant to the most-favored-nation clause of the RP-US Tax
Treaty in relation to the RP-West Germany Tax Treaty. It held:
Given the purpose underlying tax treaties and the rationale for the most favored nation
clause, the concessional tax rate of 10 percent provided for in the RP-Germany Tax Treaty
should apply only if the taxes imposed upon royalties in the RP-US Tax Treaty and in the RPGermany Tax Treaty are paid under similar circumstances. This would mean that private
respondent (S.C. Johnson and Son, Inc.) must prove that the RP-US Tax Treaty grants similar
tax reliefs to residents of the United States in respect of the taxes imposable upon royalties
earned from sources within the Philippines as those allowed to their German counterparts
under the RP-Germany Tax Treaty.
The RP-US and the RP-West Germany Tax Treaties do not contain similar provisions on tax
crediting. Article 24 of the RP-Germany Tax Treaty x x x expressly allows crediting against
German income and corporation tax of 20% of the gross amount of royalties paid under the
law of the Philippines. On the other hand, Article 23 of the RP-US Tax Treaty, which is the
counterpart provision with respect to relief for double taxation, does not provide for similar
crediting of 20% of the gross amount of royalties paid. X x x
X x x The entitlement of the 10% rate by U.S. firms despite the absence of matching credit
(20% for royalties) would derogate from the design behind the most favored nation clause to
grant equality of international treatment since the tax burden laid upon the income of the
investor is not the same in the two countries. The similarity in the circumstances of
payment of taxes is a condition for the enjoyment of most favored nation treatment
precisely to underscore the need for equality of treatment.
406.

What is ratification? Discuss its function in the treaty-making process.

Held: Ratification is generally held to be an executive act, undertaken by the head of state
or of the government, as the case may be, through which the formal acceptance of the
treaty is proclaimed. A State may provide in its domestic legislation the process of

ratification of a treaty. The consent of the State to be bound by a treaty is expressed by

ratification when: (a) the treaty provides for such ratification, (b) it is otherwise established
that the negotiating States agreed that ratification should be required, (c) the representative
of the State has signed the treaty subject to ratification, or (d) the intention of the State to
sign the treaty subject to ratification appears from the full powers of its representative, or
was expressed during the negotiation. (BAYAN [Bagong Alyansang Makabayan] v.
Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc
[Buena])
407.

Explain the pacta sunt servanda rule.

Held: One of the oldest and most fundamental rules in international law is pacta sunt
servanda international agreements must be performed in good faith.
A treaty
engagement is not a mere moral obligation but creates a legally binding obligation on the
parties x x x. A state which has contracted valid international obligations is bound to make
in its legislations such modifications as may be necessary to ensure the fulfillment of the
obligations undertaken.
(Tanada v. Angara, 272 SCRA 18, May 2, 1997
[Panganiban])
408. Explain the "rebus sic stantibus" rule (i.e., things remaining as they are). Does it
operate automatically to render a treaty inoperative?
Held: According to Jessup, the doctrine constitutes an attempt to formulate a legal principle
which would justify non-performance of a treaty obligation if the conditions with relation to
which the parties contracted have changed so materially and so unexpectedly as to create a
situation in which the exaction of performance would be unreasonable. The key element of
this doctrine is the vital change in the condition of the contracting parties that they could
not have foreseen at the time the treaty was concluded.
The doctrine of rebus sic stantibus does not operate automatically to render the treaty
inoperative. There is a necessity for a formal act of rejection, usually made by the head of
state, with a statement of the reasons why compliance with the treaty is no longer required.
(Santos III v. Northwest Orient Airlines, 210 SCRA 256, June 23, 1992)
409.

What is the doctrine of effective nationality (genuine link doctrine)?

Held: This principle is expressed in Article 5 of the Hague Convention of 1930 on the
Conflict of Nationality Laws as follows:
Art. 5. Within a third State a person having more than one nationality shall be treated as if
he had only one. Without prejudice to the application of its law in matters of personal status
and of any convention in force, a third State shall, of the nationalities which any such person
possesses, recognize exclusively in its territory either the nationality of the country in which
he is habitually and principally resident or the nationality of the country with which in the
circumstances he appears to be in fact most closely connected. (Frivaldo v. COMELEC,
174 SCRA 245, June 23, 1989)
410. What are the conditions before foreign military bases, troops, or facilities may be
allowed in the Philippines?
Ans.: After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases, foreign military
bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly
concurred in by the Senate and, when the Congress so requires, ratified by a majority of the

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

To our mind, the fact that the President referred the VFA to the Senate under Section
21, Article VII, and that the Senate extended its concurrence under the same provision, is
immaterial. For in either case, whether under Section 21, Article VII or Section 25, Article
XVIII, the fundamental law is crystalline that the concurrence of the Senate is mandatory to
comply with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United States
troops and personnel visiting the Philippines. It provides for the guidelines to govern such
visits of military personnel, and further defines the rights of the United States and the
Philippine government in the matter of criminal jurisdiction, movement of vessels and
aircraft, importation and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving
foreign military bases, troops, or facilities, should apply in the instant case. To a certain
extent and in a limited sense, however, the provisions of Section 21, Article VII will find
applicability with regard to the issue and for the sole purpose of determining the number of
votes required to obtain the valid concurrence of the Senate x x x.
It is a finely-imbedded principle in statutory construction that a special provision or
law prevails over a general one. Lex specialis derogat generali. Thus, where there is in the
same statute a particular enactment and also a general one which, in its most
comprehensive sense, would include what is embraced in the former, the particular
enactment must be operative, and the general enactment must be taken to affect only such
cases within its general language which are not within the provision of the particular
enactment (Manila Railroad Co. v. Collector of Customs, 52 Phil. 950). (BAYAN [Bagong
Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570
and Companion Cases, Oct. 10, 2000, 342 SCRA 449, 481-492, En Banc [Buena])
412. Should the contention that since the VFA merely involved the temporary visits of
United States personnel engaged in joint military exercises and not a basing agreement,
therefore, Sec. 21, Art. VII of the 1987 Constitution, and not Sec. 25, Art. XVIII, should apply
to the VFA, be upheld?
Held: It is specious to argue that Section 25, Article XVIII is inapplicable to mere
transient agreements for the reason that there is no permanent placing of structure for the
establishment of a military base. On this score, the Constitution makes no distinction
between "transient" and "permanent". Certainly, we find nothing in Section 25, Article XVIII
that requires foreign troops or facilities to be stationed or placed permanently in the
Philippines.
It is a rudiment in legal hermeneutics that when no distinction is made by law, the
Court should not distinguish - Ubi lex non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is
not controlling since no foreign military bases, but merely foreign troops and facilities, are
involved in the VFA. Notably, a perusal of said constitutional provision revels that the
proscription covers "foreign military bases, troops, or facilities." Stated differently, this
prohibition is not limited to the entry of troops and facilities without any foreign bases being
established. The clause does not refer to foreign military bases, troops, or facilities"
collectively but treats them as separate and independent subjects. The use of comma and
disjunctive word "or" clearly signifies disassociation and independence of one thing from the
others included in the enumeration (Castillo-Co v. Barbers, 290 SCRA 717, 723 [1998]), such
that, the provision contemplates three different situations - a military treaty the subject of

which could be either (a) foreign bases (b) foreign troops, or (c) foreign facilities - any of the
three standing alone places it under the coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the
deliberations of the 1986 Constitutional Commission, is consistent with this interpretation x
x x.
Moreover, military bases established within the territory of another state is no longer
viable because of the alternatives offered by new means and weapons of warfare such as
nuclear weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea
even for months and years without returning to their home country. These military warships
are actually used as substitutes for a land-home base not only of military aircraft but also of
military personnel and facilities. Besides, vessels are mobile as compared to a land-based
military headquarters.
(BAYAN [Bagong Alyansang Makabayan] v. Executive
Secretary Ronaldo Zamora, G.R. No. 138570 and Companion Cases, Oct. 10, 2000,
342 SCRA 449, 481-492, En Banc [Buena])
413. Were the requirements of Sec. 25, Art. XVIII of the 1987 Constitution complied with
when the Senate gave its concurrence to the VFA?
Held: Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the
country, unless the following conditions are sufficiently met, viz: (a) it must be under a
treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by
Congress, ratified by a majority of the votes cast by the people in a national referendum;
and (c) recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA. The
concurrence handed by the Senate through Resolution No. 18 is in accordance with the
provisions of the Constitution, whether under the general requirement in Section 21, Article
VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter
article requiring ratification by a majority of the votes cast in a national referendum being
unnecessary since Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or
international agreement, to be valid and effective, must be concurred in by at least twothirds of all the members of the Senate. On the other hand, Section 25, Article XVIII simply
provides that the treaty be "duly concurred in by the Senate."
Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the
Senate is clearly required so that the concurrence contemplated by law may be validly
obtained and deemed present. While it is true that Section 25, Article XVIII requires, among
other things, that the treaty - the VFA, in the instant case - be "duly concurred in by the
Senate," it is very true however that said provision must be related and viewed in light of
the clear mandate embodied in Section 21, Article VII, which in more specific terms, requires
that the concurrence of a treaty, or international agreement, be made by a two-thirds vote
of all the members of the Senate. Indeed, Section 25, Article XVIII must not be treated in
isolation to Section 21, Article VII.
As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed
in relation to the provisions of Section 21, Article VII. In a more particular language, the
concurrence of the Senate contemplated under Section 25, Article XVIII means that at least
two-thirds of all the members of the Senate favorably vote to concur with the treaty - the
VFA in the instant case.
xxx

Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we shall now pass
upon and delve on the requirement that the VFA should be recognized as a treaty by the United States of America.
xxx
This Court is of the firm view that the phrase "recognized as a treaty" means that the other
contracting party accepts or acknowledges the agreement as a treaty (Ballantine's Legal
Dictionary, 1995). To require the other contracting state, The United States of America in
this case, to submit the VFA to the United States Senate for concurrence pursuant to its
Constitution, is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their
ordinary meaning except where technical terms are employed, in which case the
significance thus attached to them prevails. Its language should be understood in the sense
they have in common use (J.M. Tuason & Co., Inc. v. Land Tenure Association, 31 SCRA 413
[1970])
Moreover, it is inconsequential whether the United States treats the VFA only as an
executive agreement because, under international law, an executive agreement is as
binding as a treaty (Altman Co. v. United States, 224 US 263 [1942], cited in Coquia and
Defensor-Santiago, International Law, 1998 Ed. P. 497). To be sure, as long as the VFA
possesses the elements of an agreement under international law, the said agreement is to
be taken equally as a treaty.
xxx
The records reveal that the United States Government, through Ambassador Thomas C.
Hubbard, has stated that the United States government has fully committed to living up to
the terms of the VFA. For as long as the United States of America accepts or acknowledges
the VFA as a treaty, and binds itself further to comply with its obligations under the treaty,
there is indeed marked compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence
of the Senate should be taken as a clear and unequivocal expression of our nation's consent
to be bound by said treaty, with the concomitant duty to uphold the obligations and
responsibilities embodied thereunder.
xxx
With the ratification of the VFA, which is equivalent to final acceptance, and with the
exchange of notes between the Philippines and the United States of America, it now
becomes obligatory and incumbent on our part, under the principles of international law, to
be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the
Constitution, declares that the Philippines adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with all nations. (BAYAN [Bagong Alyansang
Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570 and
Companion Cases, Oct. 10, 2000, 342 SCRA 449, 481-492, En Banc [Buena])
414.

Are the Balikatan exercises covered by the Visiting Forces Agreement?

Held:
The holding of Balikatan 02-1 must be studied in the framework of
the treaty antecedents to which the Philippines bound itself. The first of these is the Mutual
Defense Treaty (MDT, for brevity). The MDT has been described as the core of the defense

relationship between the Philippines and its traditional ally, the United States. Its aim is to
enhance the strategic and technological capabilities of our armed forces through joint
training with its American counterparts; the Balikatan is the largest such training exercise
directly supporting the MDTs objectives. It is this treaty to which the VFA adverts and the
obligations thereunder which it seeks to reaffirm.
The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it
created a vacuum in US-Philippine defense relations, that is, until it was replaced by the
Visiting Forces Agreement. It should be recalled that on October 10, 2000, by a vote of
eleven to three, this Court upheld the validity of the VFA (BAYAN, et. Al. v. Zamora, et. al.,
342 SCRA 449 [2000]). The VFA provides the regulatory mechanism by which United
States military and civilian personnel [may visit] temporarily in the Philippines in connection
with activities approved by the Philippine Government. It contains provisions relative to
entry and departure of American personnel, driving and vehicle registration, criminal
jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well
as the duration of the agreement and its termination. It is the VFA which gives continued
relevance to the MDT despite the passage of years. Its primary goal is to facilitate the
promotion of optimal cooperation between American and Philippine military forces in the
event of an attack by a common foe.
The first question that should be addressed is whether Balikatan 02-1 is covered by the
Visiting Forces Agreement. To resolve this, it is necessary to refer to the VFA itself. Not
much help can be had therefrom, unfortunately, since the terminology employed is itself the
source of the problem. The VFA permits United States personnel to engage, on an
impermanent basis, in activities, the exact meaning of which was left undefined. The
expression is ambiguous, permitting a wide scope of undertakings subject only to the
approval of the Philippine government. The sole encumbrance placed on its definition is
couched in the negative, in that United States personnel must abstain from any activity
inconsistent with the spirit of this agreement, and in particular, from any political activity.
All other activities, in other words, are fair game.
We are not completely unaided, however. The Vienna Convention on the Law of Treaties,
which contains provisos governing interpretations of international agreements, state x x x.
It is clear from the foregoing that the cardinal rule of interpretation must involve an
examination of the text, which is presumed to verbalize the parties intentions. The
Convention likewise dictates what may be used as aids to deduce the meaning of terms,
which it refers to as the context of the treaty, as well as other elements may be taken into
account alongside the aforesaid context. X x x
The Terms of Reference rightly fall within the context of the VFA.
After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning
of the word activities arose from accident. In our view, it was deliberately made that way
to give both parties a certain leeway in negotiation. In this manner, visiting US forces may
sojourn in Philippine territory for purposes other than military. As conceived, the joint

exercises may include training on new techniques of patrol and surveillance to protect the
nations marine resources, sea search-and-destroy operations to assist vessels in distress,
disaster relief operations, civic action projects such as the building of school houses, medical
and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only
logical to assume that Balikatan 02-1, a mutual anti-terrorism advising, assisting and
training exercise, falls under the umbrella of sanctioned or allowable activities in the
context of the agreement. Both the history and intent of the Mutual Defense Treaty and the
VFA support the conclusion that combat-related activities as opposed to combat itself
such as the one subject of the instant petition, are indeed authorized. (Arthur D. Lim and
Paulino R. Ersando v. Honorable Executive Secretary, G.R. No. 151445, April 11,
2002, En Banc [De Leon])

415. With the ratification of the Visiting Forces Agreement (VFA), has it now become
obligatory and incumbent on our part to be bound by its terms even if it is asserted that said
agreement contravenes the Constitution?
Held: With the ratification of the VFA, which is equivalent to final acceptance, and with the
exchange of notes between the Philippines and the United States of America, it now
becomes obligatory and incumbent on our part, under the principles of international law, to
be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the
Constitution, declares that the Philippines adopts the generally accepted principles of
international law as part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by generally
accepted rules for the conduct of its international relations. While the international
obligation devolves upon the state and not upon any particular branch, institution, or
individual member of its government, the Philippines is nonetheless responsible for
violations committed by any branch or subdivision of its government or any official thereof.
As an integral part of the community of nations, we are responsible to assure that our
government, Constitution and laws will carry out our international obligation (Louis Henkin,
Richard C. Pugh, Oscar Schachter, Hans Smit, International Law, Cases and Materials, 2n d
Ed., American Casebook Series, p. 136). Hence, we cannot readily plead the Constitution as
a convenient excuse for non-compliance with our obligations, duties and responsibilities
under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the
International Law Commission in 1949 provides: Every State has the duty to carry out in
good faith its obligations arising from treaties and other sources of international law, and it
may not invoke provisions in its constitution or its laws as an excuse for failure to perform
this duty. (Gerhard von Glahn, supra, p. 487)
Equally important is Article 26 of the Convention which provides that Every treaty in force is
binding upon the parties to it and must be performed by them in good faith. This is known
as the principle of pacta sunt servanda which preserves the sanctity of treaties and have
been one of the most fundamental principles of positive international law, supported by the
jurisprudence of international tribunals (Harris, p. 634 cited in Coquia, International Law,
supra, p. 512). (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary
Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, 342 SCRA 449, 492-493, En Banc
[Buena])

416. What must a person who feels aggrieved by the acts of a foreign sovereign do to
espouse his cause?
Held: Private respondent is not left without any legal remedy for the redress of its
grievances. Under both Public International Law and Transnational Law, a person who feels
aggrieved by the acts of a foreign sovereign can ask his own government to espouse his
cause through diplomatic channels.
Private respondent can ask the Philippine government, through the Foreign Office, to
espouse its claims against the Holy See. Its first task is to persuade the Philippine
government to take up with the Holy See the validity of its claim. Of course, the Foreign
Office shall first make a determination of the impact of its espousal on the relations between
the Philippine government and the Holy See (Young, Remedies of Private Claimants Against
Foreign States, Selected Readings on Protection by Law of Private Foreign Investments 905,
919 [1964]). Once the Philippine government decides to espouse the claim, the latter
ceases to be a private cause.
According to the Permanent Court of International Justice, the forerunner of the
International Court of Justice:
By taking up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own rights its right to ensure, in the person of its subjects, respect for the rules of international law
(The Mavrommatis Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).
(Holy See, The v. Rosario, Jr., 238 SCRA 524, 538-539, Dec. 1, 1994, En Banc
[Quiason])
417. What are the conditions before the rights of belligerency may be accorded the
rebels?
Ans.: As a matter of legal theory, the rebels have to fulfill certain conditions before
the rights of belligerency are accorded them, namely:
1
2
3
4

An organized civil government that has control and direction over the armed struggle
launched by the rebels;
Occupation of a substantial portion of the national territory;
Seriousness of the struggle, which must be so widespread thereby leaving no doubt as to
the outcome;
Willingness on the part of the rebels to observe the rules and customs of war.
418.

Discuss the legal consequences that follow recognition of belligerency.

Ans.:

1)

Before recognition as such, it is the legitimate government that is responsible for the acts of the rebels
affecting foreign nationals and their properties. Once recognition is given, the legitimate government may no longer
be held responsible for their acts; responsibility is shifted to the rebel government;
2)
The legitimate government, once it recognizes the rebels as belligerents, is bound to observe the laws
and customs of war in conducting the hostilities;
3)
From the point of view of third States, the effect of recognition of belligerency is to put them under
obligation to observe strict neutrality and abide by the consequences arising from that position;

4)

On the side of the rebels, recognition of belligerency puts them under responsibility to third States and
to the legitimate government for all their acts which do not conform to the laws and customs of war. (Salonga &
Yap, Public International Law, 5th Ed. [1992], p. 33)
419. Should Courts blindly adhere and take on its face the communication from the
Department of Foreign Affairs (DFA) that a person is covered by any immunity?
Held: Courts cannot blindly adhere and take on its face the communication from the
DFA that petitioner is covered by any immunity. The DFAs determination that a certain
person is covered by immunity is only preliminary which has no binding effect in courts. In
receiving ex parte the DFAs advice and in motu proprio dismissing the two criminal cases
without notice to the prosecution, the latters right to due process was violated. It should be
noted that due process is a right of the accused as much as it is of the prosecution. The
needed inquiry in what capacity petitioner was acting at the time of the alleged utterances
requires for its resolution evidentiary basis that has yet to be presented at the proper time
(See United States v. Guinto, 182 SCRA 644 [1990]). At any rate, it has been ruled that the
mere invocation of the immunity clause does not ipso facto result in the dropping of the
charges (Chavez v. Sandiganbayan, 193 SCRA 282 [1991]). (Liang v. People, 323 SCRA
692, Jan. 28, 2000, 1st Div. [Ynares-Santiago])
420. Discuss the basis of the argument that a determination by the DFA that a person is
entitled to diplomatic immunity is a political question binding on the courts.
Held: Petitioners argument that a determination by the Department of Foreign
Affairs that he is entitled to diplomatic immunity is a political question binding on the courts,
is anchored on the ruling enunciated in the case of WHO, et al. v. Aquino, et al. (48 SCRA
242 [1972]), viz:
It is a recognized principle of international law and under our system of separation of
powers that diplomatic immunity is essentially a political question and courts should refuse
to look beyond a determination by the executive branch of the government, and where the
plea of diplomatic immunity is recognized and affirmed by the executive branch of the
government as in the case at bar, it is then the duty of the courts to accept the claim of
immunity upon appropriate suggestion by the principal law officer of the government, the
Solicitor General in this case, or other officer acting under his direction. Hence, in adherence
to the settled principle that courts may not so exercise their jurisdiction by seizure and
detention of property, as to embarrass the executive arm of the government in conducting
foreign relations, it is accepted doctrine that in such cases the judicial department of the
government follows the action of the political branch and will not embarrass the latter by
assuming an antagonistic jurisdiction.
This ruling was reiterated in the subsequent cases of International Catholic Migration
Commission v. Calleja (190 SCRA 130 [1990]); The Holy See v. Rosario, Jr. (238 SCRA 524
[1994]); Lasco v. United Nations (241 SCRA 681 [1995]); and DFA v. NLRC (262 SCRA 38
[1996]).
The case of WHO v. Aquino involved the search and seizure of personal effects of
petitioner Leonce Verstuyft, an official of the WHO. Verstuyft was certified to be entitled to
diplomatic immunity pursuant to the Host Agreement executed between the Philippines and
the WHO.
ICMC v. Calleja concerned a petition for certification election filed against ICMC and
IRRI. As international organizations, ICMC and IRRI were declared to possess diplomatic
immunity. It was held that they are not subject to local jurisdictions. It was ruled that the
exercise of jurisdiction by the Department of Labor over the case would defeat the very

purpose of immunity, which is to shield the affairs of international organizations from

political pressure or control by the host country and to ensure the unhampered performance
of their functions.
Holy See v. Rosario, Jr. involved an action for annulment of sale of land against the
Holy See, as represented by the Papal Nuncio. The Court upheld the petitioners defense of
sovereign immunity. It ruled that where a diplomatic envoy is granted immunity from the
civil and administrative jurisdiction of the receiving state over any real action relating to
private immovable property situated in the territory of the receiving state, which the envoy
holds on behalf of the sending state for the purposes of the mission, with all the more reason
should immunity be recognized as regards the sovereign itself, which in that case is the Holy
See.
In Lasco v. United Nations, the United Nations Revolving Fund for Natural Resources
Exploration was sued before the NLRC for illegal dismissal. The Court again upheld the
doctrine of diplomatic immunity invoked by the Fund.
Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian
Development Bank.
Pursuant to its Charter and the Headquarters Agreement, the
diplomatic immunity of the Asian Development Bank was recognized by the Court.
It bears to stress that all of these cases pertain to the diplomatic immunity enjoyed
by international organizations. Petitioner asserts that he is entitled to the same diplomatic
immunity and he cannot be prosecuted for acts allegedly done in the exercise of his official
functions.
The term international organizations
is generally used to describe an organization set up by agreement between two or more
states. Under contemporary international law, such organizations are endowed with some
degree of international legal personality such that they are capable of exercising specific
rights, duties and powers. They are organized mainly as a means for conducting general
international business in which the member states have an interest. (ICMC v. Calleja, supra
note 2)
International public officials have been defined as:
x x x persons who, on the basis of an international treaty constituting a particular
international community, are appointed by this international community, or by an organ of
it, and are under its control to exercise, in a continuous way, functions in the interest of this
particular international community, and who are subject to a particular personal status.
(John Kerry King, The Privileges and Immunities of the Personnel of International
Organizations xiii [1949], citing: Suzanne Basdevant, Les Functionnaires Internationaux
[Paris: 1931], Chapter I)
Specialized agencies are international organizations having functions in particular
fields, such as posts, telecommunications, railways, canals, rivers, sea transport, civil
aviation, meteorology, atomic energy, finance, trade, education and culture, health and
refugees (ICMC v. Calleja, et al., citing Articles 57 and 63 of the United Nations Charter).
(Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No.
125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])
421.

What are the differences between Diplomatic and International Immunities? Discuss.

Held: There are three major differences between diplomatic and international
immunities. Firstly, one of the recognized limitations of diplomatic immunity is that
members of the diplomatic staff of a mission may be appointed from among the nationals of
the receiving State only with the express consent of that State; apart from inviolability and
immunity from jurisdiction in respect of official acts performed in the exercise of their
functions, nationals enjoy only such privileges and immunities as may be granted by the
receiving State. International immunities may be specially important in relation to the State
of which the official is a national. Secondly, the immunity of a diplomatic agent from the
jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending
State; in the case of international immunities there is no sending State and an equivalent for
the jurisdiction of the Sending State therefore has to be found either in waiver of immunity
or in some international disciplinary or judicial procedure. Thirdly, the effective sanctions
which secure respect for diplomatic immunity are the principle of reciprocity and the danger
of retaliation by the aggrieved State; international immunities enjoy no similar protection (C.
Wilfred Jenks, Contemporary Development in International Immunities xxxvii [1961])
(Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No.
125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])
422.

Discuss the immunity of International Officials.

Held: The generally accepted principles which are now regarded as the foundation of
international immunities are contained in the ILO Memorandum, which reduced them in
three basic propositions, namely: (1) that international institutions should have a status
which protects them against control or interference by any one government in the
performance of functions for the effective discharge of which they are responsible to
democratically constituted international bodies in which all the nations concerned are
represented; (2) that no country should derive any financial advantage by levying fiscal
charges on common international funds; and (3) that the international organization should,
as a collectivity of States Members, be accorded the facilities for the conduct of its official
business customarily extended to each other by its individual member States. The thinking
underlying these propositions is essentially institutional in character. It is not concerned
with the status, dignity or privileges of individuals, but with the elements of functional
independence necessary to free international institutions from national control and to
enable them to discharge their responsibilities impartially on behalf of all their members (Id.
at 17). (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No.
125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])
423. What are the three methods of granting privileges and immunities to the personnel
of international organizations? Under what category does the Asian Development Bank and
its Personnel fall?
Held: Positive international law has devised three methods of granting privileges and
immunities to the personnel of international organizations.
The first is by simple
conventional stipulation, as was the case in the Hague Conventions of 1899 and 1907. The
second is by internal legislation whereby the government of a state, upon whose territory
the international organization is to carry out its functions, recognizes the international
character of the organization and grants, by unilateral measures, certain privileges and
immunities to better assure the successful functioning of the organization and its personnel.
In this situation, treaty obligation for the state in question to grant concessions is lacking.
Such was the case with the Central Commission of the Rhine at Strasbourg and the
International Institute of Agriculture at Rome. The third is a combination of the first two. In
this third method, one finds a conventional obligation to recognize a certain status of an
international organization and its personnel, but the status is described in broad and general
terms. The specific definition and application of those general terms are determined by an
accord between the organization itself and the state wherein it is located. This is the case

with the League of Nations, the Permanent Court of Justice, and the United Nations (J.K.
King, supra note 12, at 81).
The Asian Development Bank and its Personnel fall under this third category.
There is a connection between diplomatic privileges and immunities and those
extended to international officials. The connection consists in the granting, by contractual
provisions, of the relatively well-established body of diplomatic privileges and immunities to
international functionaries. This connection is purely historical. Both types of officials find
the basis of their special status in the necessity of retaining functional independence and
freedom from interference by the state of residence. However, the legal relationship
between an ambassador and the state to which he is accredited is entirely different from the
relationship between the international official and those states upon whose territory he
might carry out its functions (See Id. at 255).
The privileges and immunities of diplomats and those of international officials rest upon
different legal foundations. Whereas those immunities awarded to diplomatic agents are a
right of the sending state based on customary international law, those granted to
international officials are based on treaty or conventional law. Customary international law
places no obligation on a state to recognize a special status of an international official or to
grant him jurisdictional immunities. Such an obligation can only result from specific treaty
provisions (Id. at 25-26).
The special status of the diplomatic envoy is regulated by the principle of reciprocity by
which a state is free to treat the envoy of another state as its envoys are treated by that
state. The juridical basis of the diplomats position is firmly established in customary
international law. The diplomatic envoy is appointed by the sending State but it has to make
certain that the agreement of the receiving State has been given for the person it proposes
to accredit as head of the mission to that State (Article 4, Vienna Convention on Diplomatic
Relations).
The staff personnel of an international organization the international officials assume a
different position as regards their special status. They are appointed or elected to their
position by the organization itself, or by a competent organ of it; they are responsible to the
organization and their official acts are imputed to it. The juridical basis of their special
position is found in conventional law (J.K. King, supra note 12, at xiii), since there is no
established basis of usage or custom in the case of the international official. Moreover, the
relationship between an international organization and a member-state does not admit of
the principle of reciprocity (Id. at 27), for it is contradictory to the basic principle of equality
of states. An international organization carries out functions in the interest of every member
state equally. The international official does not carry out his functions in the interest of any
state, but in serving the organization he serves, indirectly, each state equally. He cannot be,
legally, the object of the operation of the principle of reciprocity between states under such
circumstances. It is contrary to the principle of equality of states for one state member of
an international organization to assert a capacity to extract special privileges for its
nationals from other member states on the basis of a status awarded by it to an
international organization. It is upon this principle of sovereign equality that international
organizations are built.
It follows from this same legal circumstance that a state called upon to admit an official of
an international organization does not have a capacity to declare him persona non grata.
The functions of the diplomat and those of the international official are quite different.
Those of the diplomat are functions in the national interest. The task of the ambassador is
to represent his state, and its specific interest, at the capital of another state. The functions

of the international official are carried out in the international interest. He does not
represent a state or the interest of any specific state. He does not usually represent the
organization in the true sense of that term. His functions normally are administrative,
although they may be judicial or executive, but they are rarely political or functions of
representation, such as those of the diplomat.
There is a difference of degree as well as of kind. The interruption of the activities of a
diplomatic agent is likely to produce serious harm to the purposes for which his immunities
were granted. But the interruption of the activities of the international official does not,
usually, cause serious dislocation of the functions of an international secretariat (id. at 254257).
On the other hand, they are similar in the sense that acts performed in an official capacity
by either a diplomatic envoy or an international official are not attributable to him as an
individual but are imputed to the entity he represents, the state in the case of the diplomat,
and the organization in the case of the international official (Id. at 103). ). (Concurring
Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26,
2001, 1st Div. [Motion for Reconsideration])
424. What is the reason behind the current tendency of reducing privileges and
immunities of personnel of international organizations to a minimum?
Held: Looking back over 150 years of privileges and immunities granted to the personnel of
international organizations, it is clear that they were accorded a wide scope of protection in
the exercise of their functions The Rhine Treaty of 1804 between the German Empire and
France which provided all the rights of neutrality to persons employed in regulating
navigation in the international interest; The Treaty of Berlin of 1878 which granted the
European Commission of the Danube complete independence of territorial authorities in
the exercise of its functions; The Convention of the League which granted diplomatic
immunities and privileges. Today, the age of the United Nations finds the scope of
protection narrowed. The current tendency is to reduce privileges and immunities of
personnel of international organizations to a minimum. The tendency cannot be considered
as a lowering of the standard but rather as a recognition that the problem on the privileges
and immunities of international officials is new. The solution to the problem presented by
the extension of diplomatic prerogatives to international functionaries lies in the general
reduction of the special position of both types of agents in that the special status of each
agent is granted in the interest of function. The wide grant of diplomatic prerogatives was
curtailed because of practical necessity and because the proper functioning of the
organization did not require such extensive immunity for its officials. While the current
direction of the law seems to be to narrow the prerogatives of the personnel of international
organizations, the reverse is true with respect to the prerogatives of the organizations
themselves, considered as legal entities. Historically, states have been more generous in
granting privileges and immunities to organizations than they have to the personnel of
these organizations (J.K. King, supra note 12, at 253-268).
Thus, Section 2 of the General Convention on the Privileges and Immunities of the United
Nations states that the UN shall enjoy immunity from every form of legal process except
insofar as in any particular case it has expressly waived its immunity. Section 4 of the
Convention on the Privileges and Immunities of the Specialized Agencies likewise provides
that the specialized agencies shall enjoy immunity from every form of legal process subject
to the same exception.
Finally, Article 50[1] of the ADB Charter and Section 5 of the
Headquarters Agreement similarly provide that the bank shall enjoy immunity from every
form of legal process, except in cases arising out of or in connection with the exercise of its
powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale
of securities.

The phrase immunity from every form of legal process as used in the UN General
Convention has been interpreted to mean absolute immunity from a states jurisdiction to
adjudicate or enforce its law by legal process, and it is said that states have not sought to
restrict that immunity of the United Nations by interpretation or amendment. Similar
provisions are contained in the Special Agencies Convention as well as in the ADB Charter
and Headquarters Agreement.
These organizations were accorded privileges and
immunities in their charters by language similar to that applicable to the United Nations. It
is clear therefore that these organizations were intended to have similar privileges and
immunities (1 Restatement of the Law Third 498-501). From this, it can be easily deduced
that international organizations enjoy absolute immunity similar to the diplomatic
prerogatives granted to diplomatic envoys.
Even in the United States this seems to be the prevailing rule x x x.
On the other hand, international officials are governed by a different rule. Section 18[a] of
the General Convention on Privileges and Immunities of the United Nations states that
officials of the United Nations shall be immune from legal process in respect of words spoken
or written and all acts performed by them in their official capacity. The Convention on
Specialized Agencies carries exactly the same provision. The Charter of the ADB provides
under Article 55[i] that officers and employees of the bank shall be immune from legal
process with respect to acts performed by them in their official capacity except when the
Bank waives immunity. Section 45 [a] of the ADB Headquarters Agreement accords the
same immunity to the officers and staff of the bank. There can be no dispute that
international officials are entitled to immunity only with respect to acts performed in their
official capacity, unlike international organizations which enjoy absolute immunity.
Clearly, the most important immunity to an international official, in the discharge of his
international functions, is immunity from local jurisdiction. There is no argument in doctrine
or practice with the principle that an international official is independent of the jurisdiction of
the local authorities for his official acts. Those acts are not his, but are imputed to the
organization, and without waiver the local courts cannot hold him liable for them. In strict
law, it would seem that even the organization itself could have no right to waive an officials
immunity for his official acts. This permits local authorities to assume jurisdiction over an
individual for an act which is not, in the wider sense of the term, his act al all. It is the
organization itself, as a juristic person, which should waive its own immunity and appear in
court, not the individual, except insofar as he appears in the name of the organization.
Provisions for immunity from jurisdiction for official acts appear, aside from the
aforementioned treatises, in the constitution of most modern international organizations.
The acceptance of the principle is sufficiently widespread to be regarded as declaratory of
international law (J.K. King, supra note 12, at 258-259) (Concurring Opinion, Puno J., in
Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1 st Div. [Motion
for Reconsideration])
425.

What is the status of the international official with respect to his private acts?

Held: Section 18 [a] of the General Convention has been interpreted to mean that
officials of the specified categories are denied immunity from local jurisdiction for acts of
their private life and empowers local courts to assume jurisdiction in such cases without the
necessity of waiver (Id. at 186). It has earlier been mentioned that historically, international
officials were granted diplomatic privileges and immunities and were thus considered
immune for both private and official acts. In practice, this wide grant of diplomatic
prerogatives was curtailed because of practical necessity and because the proper
functioning of the organization did not require such exclusive immunity for its officials.
Thus, the current status of the law does not maintain that states grant jurisdictional

immunity to international officials for acts of their private lives (But see id. at 259. It is
important to note that the submission of international officials to local jurisdiction for private
acts is not completely accepted in doctrine and theory. Jenks, in particular, has argued for
complete jurisdictional immunity, as has Hammarskjold.). This much is explicit from the
charter and Headquarters Agreement of the ADB which contain substantially similar
provisions to that of the General convention. (Concurring Opinion, Puno J., in Jeffrey
Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1 st Div. [Motion for
Reconsideration])
426. Who is competent to determine whether a given act of international officials and
representatives is private or official?
Held: In connection with this question, the current tendency to narrow the scope of
privileges ad immunities of international officials and representatives is most apparent. Prior
to the regime of the United Nations, the determination of this question rested with the
organization and its decision was final. By the new formula, the state itself tends to assume
this competence. If the organization is dissatisfied with the decision, under the provisions of
the General Convention of the United Nations, or the Special Convention for Specialized
Agencies, the Swiss Arrangement, and other current dominant instruments, it may appeal to
an international tribunal by procedures outlined in these instruments. Thus, the state
assumes this competence in the first instance. It means that, if a local court assumes
jurisdiction over an act without the necessity of waiver from the organization, the
determination of the nature of the act is made at the national level (Id. at 260-261).
It appears that the inclination is to place the competence to determine the nature of
an act as private or official in the courts of the state concerned. That the practical notion
seems to be to leave to the local courts determination of whether or not a given act is
official or private does not necessarily mean that such determination is final. If the United
Nations questions the decision of the Court, it may invoke proceedings for settlement of
disputes between the organization and the member states as provided in Section 30 of the
General Convention. Thus, the decision as to whether a given act is official or private is
made by the national courts in the first instance, but it may be subjected to review in the
international level if questioned by the United Nations (Id. at 189).
xxx
Under the Third Restatement of the Law, it is suggested that since an international official
does not enjoy personal inviolability from arrest or detention and has immunity only with
respect to official acts, he is subject to judicial or administrative process and must claim his
immunity in the proceedings by showing that the act in question was an official act.
Whether an act was performed in the individuals official capacity is a question for the court
in which a proceeding is brought, but if the international organization disputes the courts
finding, the dispute between that organization and the state of the forum is to be resolved
by negotiation, by an agreed mode of settlement or by advisory opinion of the International
Court of Justice (Restatement of the Law Third 512).
Recognizing the difficulty that by reason of the right of a national court to assume
jurisdiction over private acts without a waiver of immunity, the determination of the official
or private character of a particular act may pass from international to national, Jenks
proposes three ways of avoiding difficulty in the matter. The first would be for a municipal
court before which a question of the official or private character of a particular act arose to
accept as conclusive in the matter any claim by the international organization that the act
was official in character, such a claim being regarded as equivalent to a governmental claim
that a particular act is an act of State. Such a claim would be in effect a claim by the
organization that the proceedings against the official were a violation of the jurisdictional

immunity of the organization itself which is unqualified and therefore not subject to
delimitation in the discretion of the municipal court. The second would be for a court to
accept as conclusive in the matter a statement by the executive government of the country
where the matter arises certifying the official character of the act. The third would be to
have recourse to the procedure of international arbitration. Jenks opines that it is possible
that none of these three solutions would be applicable in all cases; the first might be readily
acceptable only in the clearest cases and the second is available only if the executive
government of the country where the matter arises concurs in the view of the international
organization concerning the official character of the act. However, he surmises that taken in
combination, these various possibilities may afford the elements of a solution to the problem
(Jenks, supra note 14, at 117-118). (Concurring Opinion, Puno J., in Jeffrey Liang
[Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1 st Div. [Motion for
Reconsideration])
427.

Discuss the extent of the international officials immunity for official acts.

Held: One final point. The international officials immunity for official acts may be
likened to a consular officials immunity from arrest, detention, and criminal or civil process
which is not absolute but applies only to acts or omissions in the performance of his official
functions, in the absence of special agreement. Since a consular officer is not immune from
all legal processes, he must respond to any process and plead and prove immunity on the
ground that the act or omission underlying the process was in the performance of his official
functions. The issue has not been authoritatively determined, but apparently the burden is
on the consular official to prove his status as well as his exemption in the circumstances. In
the United States, the US Department of State generally has left it to the courts to
determine whether a particular act was within a consular officers official duties (1
Restatement of the Law Third 475-477). (Concurring Opinion, Puno J., in Jeffrey Liang
[Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1 st Div. [Motion for
Reconsideration])
428.

State the occasions when the use of force may be allowed under the UN Charter.

Ans.: There are only two occasions when the use of force is allowed under the UN Charter.
The first is when it is authorized in pursuance of the enforcement action that may be
decreed by the Security Council under Art. 42. The second is when it is employed in the
exercise of the inherent right of self-defense under conditions prescribed in Art. 51. (Justice
Isagani A. Cruz, in an article entitled A New World Order written in his column
Separate Opinion published in the March 30, 2003 issue of the Philippines Daily
Inquirer)
429. Is the United States justified in invading Iraq invoking its right to defend itself against
an expected attack by Iraq with the use of its biological and chemical weapons of mass
destruction?
Ans.: The United States is invoking its right to defend itself against an expected attack by
Iraq with the use of its biological and chemical weapons of mass destruction. There is no
evidence of such a threat, but Bush is probably invoking the modern view that a state does
not have to wait until the potential enemy fires first. The cowboy from Texas says that
outdrawing the foe who is about to shoot is an act of self-defense.
Art. 51 says, however, that there must first be an armed attack before a state can exercise
its inherent right of self-defense, and only until the Security Council, to which the aggression
should be reported, shall have taken the necessary measures to maintain international
peace and security. It was the United States that made the armed attack first, thus
becoming the aggressor, not Iraq. Iraq is now not only exercising its inherent right of self-

defense as recognized by the UN Charter. (Justice Isagani A. Cruz, in an article entitled

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