REVIEW NOTES IN POLITICAL LAW

PART 2

200. What are some of the recognized restrictions to the right of the people
to information on matters of public concern?

Held:

1) National security matters and intelligence information. This

jurisdiction recognizes the common law holding that there is a governmental
privilege against public disclosure with respect to state secrets regarding
military, diplomatic and other national security matters. Likewise,
information on inter-government exchanges prior to the conclusion of
treaties and executive agreements may be subject to reasonable safeguards
for the sake of national interest;
2) Trade or industrial secrets (pursuant to the Intellectual Property
Code [R.A. No. 8293, approved on June 6, 1997] and other related laws) and
banking transactions (pursuant to the Secrecy of Bank Deposits Act [R.A. No.
1405, as amended]);
3) Criminal matters, such as those relating to the apprehension, the
prosecution and the detention of criminals, which courts may not inquire into
prior to such arrest, detention and prosecution;
4) Other confidential information. The Ethical Standards Act (R.A. No.
6713, enacted on February 20, 1989) further prohibits public officials and
employees from using or divulging confidential or classified information
officially known to them by reason of their office and not made available to
the public. (Sec. 7[c], ibid.) Other acknowledged limitations to information
access include diplomatic correspondence, closed door Cabinet meetings and
executive sessions of either house of Congress, as well as the internal
deliberations of the Supreme Court.
(Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998 [Panganiban])

201. Is the alleged ill-gotten wealth of the Marcoses a matter of public

concern subject to this right?

Held: With such pronouncements of our government, whose authority

emanates from the people, there is no doubt that the recovery of the
Marcoses' alleged ill-gotten wealth is a matter of public concern and imbued
with public interest. We may also add that ill-gotten wealth refers to
assets and properties purportedly acquired, directly or indirectly, by former
President Marcos, his immediate family, relatives and close associates
through or as a result of their improper or illegal use of government funds or
properties; or their having taken undue advantage of their public office; or
their use of powers, influences or relationships, resulting in their unjust
enrichment and causing grave damage and prejudice to the Filipino people
and the Republic of the Philippines. Clearly, the assets and properties
referred to supposedly originated from the government itself. To all intents
and purposes, therefore, they belong to the people. As such, upon
reconveyance they will be returned to the public treasury, subject only to the
satisfaction of positive claims of certain persons as may be adjudged by
competent courts. Another declared overriding consideration for the
expeditious recovery of ill-gotten wealth is that it may be used for national
economic recovery.

We believe the foregoing disquisition settles the question of whether

petitioner has a right to respondents' disclosure of any agreement that may
be arrived at concerning the Marcoses purported ill-gotten wealth. (Chavez
v. PCGG, 299 SCRA 744, Dec. 9, 1998 [Panganiban])

Freedom of Association

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

Held: Specifically, the right of civil servants to organize themselves was

positively recognized in Association of Court of Appeals Employees (ACAE) v.
Ferrer-Calleja (203 SCRA 596, November 15, 1991). But, as in the exercise of
the rights of free expression and of assembly, there are standards for
allowable limitations such as the legitimacy of the purposes of the
association, the overriding considerations of national security and the
preservation of democratic institutions (People v. Ferrer, 48 SCRA 382,
December 27, 1972, per Castro, J., where the Court, while upholding the
validity of the Anti-Subversion Act which outlawed the Communist Party of
the Philippines and other "subversive" organizations, clarified, "Whatever
interest in freedom of speech and freedom of association is infringed by the
prohibition against knowing membership in the Communist Party of the
Philippines, is so indirect and so insubstantial as to be clearly and heavily
outweighed by the overriding considerations of national security and the
preservation of democratic institutions in this country." It cautioned, though,
that "the need for prudence and circumspection [cannot be overemphasized]
in [the law's] enforcement, operating as it does in the sensitive area of
freedom of expression and belief.")

As regards the right to strike, the Constitution itself qualifies its exercise with
the proviso "in accordance with law." This is a clear manifestation that the
state may, by law, regulate the use of this right, or even deny certain sectors
such right. Executive Order No. 180 (Issued by former President Corazon C.
Aquino on June 1, 1987) which provides guidelines for the exercise of the
right of government workers to organize, for instance, implicitly endorsed an
earlier CSC circular which "enjoins under pain of administrative sanctions, all
government officers and employees from staging strikes, demonstrations,
mass leaves, walkouts and other forms of mass action which will result in
temporary stoppage or disruption of public service" (CSC Memorandum
Circular No. 6, s. 1987, dated April 21, 1987) by stating that the Civil Service
law and rules governing concerted activities and strikes in the government
service shall be observed.

It is also settled in jurisprudence that, in general, workers in the public sector

do not enjoy the right to strike. Alliance of Concerned Government Workers
v. Minister of Labor and Employment (124 SCRA 1, August 3, 1983, also per
Gutierrez, Jr., J.) rationalized the proscription thus:

"The general rule in the past and up to the present is that the 'terms and
conditions of employment in the Government, including any political
subdivision or instrumentality thereof are governed by law.' X x x. Since the
terms and conditions of government employment are fixed by law,
government workers cannot use the same weapons employed by the workers
in the private sector to secure concessions from their employers. The
principle behind labor unionism in private industry is that industrial peace
cannot be secured through compulsion by law. Relations between private
employers and their employees rest on an essentially voluntary basis.
Subject to the minimum requirements of wage laws and other labor and
welfare legislation, the terms and conditions of employment in the unionized
private sector are settled through the process of collective bargaining. In
government employment, however, it is the legislature and, where properly
given delegated power, the administrative heads of government which fix
the terms and conditions of employment. And this is effected through
statutes or administrative circulars, rules, and regulations, not through
collective bargaining agreements." (Ibid., p. 13)

After delving into the intent of the framers of the Constitution, the Court
affirmed the above rule in Social Security System Employees Association
(SSSEA) v. Court of Appeals (175 SCRA 686, July 28, 1989) and explained:

"Government employees may, therefore, through their unions or

associations, either petition the Congress for the betterment of the terms
and conditions of employment which are within the ambit of legislation or
negotiate with the appropriate government agencies for the improvement of
those which are not fixed by law. If there be any unresolved grievances, the
dispute may be referred to the Public Sector Labor-Management Council for
appropriate action. But employees in the civil service may not resort to
strikes, walkouts and other temporary work stoppages, like workers in the
private sector, to pressure the Government to accede to their demands. As
now provided under Sec. 4, Rule III of the Rules and Regulations to Govern
the Exercise of the Right of Government Employees to Self-Organization,
which took effect after the instant dispute arose, '[t]he terms and conditions
of employment in the government, including any political subdivision or
instrumentality thereof and government-owned and controlled corporations
with original charters are governed by law and employees therein shall not
strike for the purpose of securing changes [thereto].'' (Ibid., p. 698)
(Jacinto v. Court of Appeals, 281 SCRA 657, Nov. 14, 1997, En Banc
[Panganiban])

203. Petitioners public school teachers walked out of their classes and
engaged in mass actions during certain dates in September 1990 protesting
the alleged unlawful withholding of their salaries and other economic
benefits. They also raised national issues, such as the removal of US bases
and the repudiation of foreign debts, in their mass actions. They refused to
return to work despite orders to do so and subsequently were found guilty of
conduct prejudicial to the best interests of the service for having absented
themselves without proper authority, from their schools during regular
school days, and penalized. They denied that they engaged in strike but
claimed that they merely exercised a constitutionally guaranteed right the
right to peaceably assemble and petition the government for redress of
grievances - and, therefore, should not have been penalized. Should their
contention be upheld?

Held: Petitioners, who are public schoolteachers and thus government

employees, do not seek to establish that they have a right to strike. Rather,
they tenaciously insist that their absences during certain dates in September
1990 were a valid exercise of their constitutional right to engage in peaceful
assembly to petition the government for a redress of grievances. They claim
that their gathering was not a strike, therefore, their participation therein did
not constitute any offense. MPSTA v. Laguio (Supra, per Narvasa, J., now CJ.)
and ACT v. Carino (Ibid.), in which this Court declared that "these 'mass
actions' were to all intents and purposes a strike; they constituted a
concerted and unauthorized stoppage of, or absence from, work which it was
the teachers' duty to perform, undertaken for essentially economic reasons,"
should not principally resolve the present case, as the underlying facts are
allegedly not identical.

Strike, as defined by law, means any temporary stoppage of work done by

the concerted action of employees as a result of an industrial or labor
dispute. A labor dispute includes any controversy or matter concerning
terms and conditions of employment; or the association or representation of
persons in negotiating, fixing, maintaining, changing or arranging the terms
and conditions of employment, regardless of whether the disputants stand in
the proximate relation of employers and employees. With these premises,
we now evaluate the circumstances of the instant petition.
It cannot be denied that the mass action or assembly staged by the
petitioners resulted in the non-holding of classes in several public schools
during the corresponding period. Petitioners do not dispute that the
grievances for which they sought redress concerned the alleged failure of
public authorities - essentially, their "employers" - to fully and justly
implement certain laws and measures intended to benefit them materially x
x x. And probably to clothe their action with permissible character (In
justifying their mass actions, petitioners liken their activity to the pro-bases
rally led by former President Corazon C. Aquino on September 10, 1991,
participated in, as well, by public school teachers who consequently
absented themselves from their classes. No administrative charges were
allegedly instituted against any of the participants.), they also raised national
issues such as the removal of the U.S. bases and the repudiation of foreign
debt. In Balingasan v. Court of Appeals (G.R. No. 124678, July 31, 1997, per
Regalado, J.), however, this Court said that the fact that the conventional
term "strike" was not used by the participants to describe their common
course of action was insignificant, since the substance of the situation, and
not its appearance, was deemed controlling.

Moreover, the petitioners here x x x were not penalized for the exercise of
their right to assemble peacefully and to petition the government for a
redress of grievances. Rather, the Civil Service Commission found them
guilty of conduct prejudicial to the best interest of the service for having
absented themselves without proper authority, from their schools during
regular school days, in order to participate in the mass protest, their absence
ineluctably resulting in the non-holding of classes and in the deprivation of
students of education, for which they were responsible. Had petitioners
availed themselves of their free time - recess, after classes, weekends or
holidays - to dramatize their grievances and to dialogue with the proper
authorities within the bounds of law, no one - not the DECS, the CSC or even
this Court - could have held them liable for the valid exercise of their
constitutionally guaranteed rights. As it was, the temporary stoppage of
classes resulting from their activity necessarily disrupted public services, the
very evil sought to be forestalled by the prohibition against strikes by
government workers. Their act by their nature was enjoined by the Civil
Service law, rules and regulations, for which they must, therefore, be made
answerable. (Jacinto v. CA, 281 SCRA 657, Nov. 14, 1997, En Banc
[Panganiban])

The Non-Impairment Clause

204. Is the constitutional prohibition against impairing contractual

obligations absolute?
Held: 1. Nor is there merit in the claim that the resolution and
memorandum circular violate the contract clause of the Bill of Rights.

The executive order creating the POEA was enacted to further implement the
social justice provisions of the 1973 Constitution, which have been greatly
enhanced and expanded in the 1987 Constitution by placing them under a
separate Article (Article XIII). The Article on Social Justice was aptly
described as the "heart of the new Charter" by the President of the 1986
Constitutional Commission, retired Justice Cecilia Munoz Palma. Social
justice is identified with the broad scope of the police power of the state and
requires the extensive use of such power. X x x.

The constitutional prohibition against impairing contractual obligations is not

absolute and is not to be read with literal exactness. It is restricted to
contracts with respect to property or some object of value and which confer
rights that may be asserted in a court of justice; it has no application to
statutes relating to public subjects within the domain of the general
legislative powers of the State and involving the public rights and public
welfare of the entire community affected by it. It does not prevent a proper
exercise by the State of its police power by enacting regulations reasonably
necessary to secure the health, safety, morals, comfort, or general welfare of
the community, even though contracts may thereby be affected, for such
matters cannot be placed by contract beyond the power of the State to
regulate and control them.

Verily, the freedom to contract is not absolute; all contracts and all rights are
subject to the police power of the State and not only may regulations which
affect them be established by the State, but all such regulations must be
subject to change from time to time, as the general well-being of the
community may require, or as the circumstances may change, or as
experience may demonstrate the necessity. And under the Civil Code,
contracts of labor are explicitly subject to the police power of the State
because they are not ordinary contracts but are impressed with public
interest. Article 1700 thereof expressly provides:

Art. 1700. The relations between capital and labor are not merely
contractual. They are so impressed with public interest that labor contracts
must yield to the common good. Therefore, such contracts are subject to the
special laws on labor unions, collective bargaining, strikes and lockouts,
closed shop, wages, working conditions, hours of labor and similar subjects.

The challenged resolution and memorandum circular being valid

implementations of E.O. No. 797 (Creating the POEA), which was enacted
under the police power of the State, they cannot be struck down on the
ground that they violate the contract clause. To hold otherwise is to alter
long-established constitutional doctrine and to subordinate the police power
to the contract clause. (The Conference of Maritime Manning
Agencies, Inc. v. POEA, 243 SCRA 666, April 21, 1995 [Davide, Jr.])

2. Petitioners pray that the present action should be barred, because private
respondents have voluntarily executed quitclaims and releases and received
their separation pay. Petitioners claim that the present suit is a "grave
derogation of the fundamental principle that obligations arising from a valid
contract have the force of law between the parties and must be complied
with in good faith."

The Court disagrees. Jurisprudence holds that the constitutional guarantee

of non-impairment of contract is subject to the police power of the state and
to reasonable legislative regulations promoting health, morals, safety and
welfare. Not all quitclaims are per se invalid or against public policy, except
(1) where there is clear proof that the waiver was wangled from an
unsuspecting or gullible person, or (2) where the terms of settlement are
unconscionable on their face. In these cases, the law will step in to annul the
questionable transactions. Such quitclaim and release agreements are
regarded as ineffective to bar the workers from claiming the full measure of
their legal rights.

In the case at bar, the private respondents agreed to the quitclaim and
release in consideration of their separation pay. Since they were dismissed
allegedly for business losses, they are entitled to separation pay under
Article 283 of the Labor Code. And since there was thus no extra
consideration for the private respondents to give up their employment, such
undertakings cannot be allowed to bar the action for illegal dismissal.
(Bogo-Medellin Sugarcane Planters Association, Inc. v. NLRC, 296
SCRA 108, 124, [Panganiban])

3. Only slightly less abstract but nonetheless hypothetical is the contention

of CREBA that the imposition of the VAT on the sales and leases of real estate
by virtue of contracts entered prior to the effectivity of the law would violate
the constitutional provision that "No law impairing the obligation of contracts
shall be passed." It is enough to say that the parties to a contract cannot,
through the exercise of prophetic discernment, fetter the exercise of the
taxing power of the State. For not only are existing laws read into contracts
in order to fix obligations as between parties, but the reservation of essential
attributes of sovereign power is also read into contracts as a basic postulate
of the legal order. The policy of protecting contracts against impairment
presupposes the maintenance of a government which retains adequate
authority to secure the peace and good order of society.

In truth, the Contract Clause has never been thought as a limitation on the
exercise of the State's power of taxation save only where a tax exemption
has been granted for a valid consideration. X x x. (Tolentino v. Secretary
of Finance, 235 SCRA 630, 685-686, Aug. 25, 1994, En Banc
[Mendoza])

4. Since timber licenses are not contracts, the non-impairment clause x x x

cannot be invoked.

X x x, even if it is to be assumed that the same are contracts, the instant

case does not involve a law or even an executive issuance declaring the
cancellation or modification of existing timber licenses. Hence, the non-
impairment clause cannot as yet be invoked. Nevertheless, granting further
that a law has actually been passed mandating cancellations or
modifications, the same cannot still be stigmatized as a violation of the non-
impairment clause. This is because by its very nature and purpose, such a
law could have only been passed in the exercise of the police power of the
state for the purpose of advancing the right of the people to a balanced and
healthful ecology, promoting their health and enhancing their general
welfare. X x x.

In short, the non-impairment clause must yield to the police power of the
state.

Finally, it is difficult to imagine x x x how the non-impairment clause could

apply with respect to the prayer to enjoin the respondent Secretary from
receiving, accepting, processing, renewing or approving new timber license
for, save in cases of renewal, no contract would have as yet existed in the
other instances. Moreover, with respect to renewal, the holder is not entitled
to it as a matter of right. (Oposa v. Factoran, Jr., 224 SCRA 792 [1993])

5. Anent petitioners' contention that the forcible refund of incentive benefits

is an unconstitutional impairment of a contractual obligation, suffice it to
state that "[n]ot all contracts entered into by the government will operate as
a waiver of its non-suability; distinction must be made between its sovereign
and proprietary acts. The acts involved in this case are governmental.
Besides, the Court is in agreement with the Solicitor General that the
incentive pay or benefit is in the nature of a bonus which is not a
demandable or enforceable obligation. (Blaquera v. Alcala, 295 SCRA
366, 446, Sept. 11, 1998, En Banc [Purisima])

The In-Custodial Investigation Rights of an Accused Person

205. State the procedure, guidelines and duties which the arresting,
detaining, inviting, or investigating officer or his companions must do and
observe at the time of making an arrest and again at and during the time of
the custodial interrogation.
 Held: Lastly, considering the heavy penalty of death and in order to ensure
that the evidence against an accused were obtained through lawful means,
the Court, as guardian of the rights of the people lays down the procedure,
guidelines and duties which the arresting, detaining, inviting, or investigating
officer or his companions must do and observe at the time of making an
arrest and again at and during the time of the custodial interrogation in
accordance with the Constitution, jurisprudence and Republic Act No. 7438
(An Act Defining Certain Rights of Person Arrested, Detained or Under
Custodial Investigation as well as the Duties of the Arresting, Detaining, and
Investigating Officers and Providing Penalties for Violations Thereof). It is
high-time to educate our law-enforcement agencies who neglect either by
ignorance or indifference the so-called Miranda rights which had become
insufficient and which the Court must update in the light of new legal
developments:

1) The person arrested, detained, invited or under custodial

investigation must be informed in a language known to and understood by
him of the reason for the arrest and he must be shown the warrant of arrest,
if any. Every other warnings, information or communication must be in a
language known to and understood by said person;
2) He must be warned that he has a right to remain silent and that any
statement he makes may be used as evidence against him;
3) He must be informed that he has the right to be assisted at all
times and have the presence of an independent and competent lawyer,
preferably of his own choice;
4) He must be informed that if he has no lawyer or cannot afford the
services of a lawyer, one will be provided for him; and that a lawyer may also
be engaged by any person in his behalf, or may be appointed by the court
upon petition of the person arrested or one acting on his behalf;
5) That whether or not the person arrested has a lawyer, he must be
informed that no custodial investigation in any form shall be conducted
except in the presence of his counsel of after a valid waiver has been made;
6) The person arrested must be informed that, at any time, he has the
right to communicate or confer by the most expedient means - telephone,
radio, letter or messenger - with his lawyer (either retained or appointed),
any member of his immediate family, or any medical doctor, priest or
minister chosen by him or by any one from his immediate family or by his
counsel, or be visited by/confer with duly accredited national or international
non-government organization. It shall be the responsibility of the officer to
ensure that this is accomplished;
7) He must be informed that he has the right to waive any of said
rights provided it is made voluntarily, knowingly and intelligently and ensure
that he understood the same;
8) In addition, if the person arrested waives his right to a lawyer, he
must be informed that it must be done in writing and in the presence of
 counsel, otherwise, he must be warned that the waiver is void even if he
insist on his waiver and chooses to speak;
9) That the person arrested must be informed that he may indicate in
any manner at any time or stage of the process that he does not wish to be
questioned with warning that once he makes such indication, the police may
not interrogate him if the same had not yet commenced, or the interrogation
must cease if it has already begun;
10) The person arrested must be informed that his initial waiver of his
right to remain silent, the right to counsel or any of his rights does not bar
him from invoking it at any time during the process, regardless of whether he
may have answered some questions or volunteered some statements;
11) He must also be informed that any statement or evidence, as the
case may be, obtained in violation of any of the foregoing, whether
inculpatory or exculpatory, in whole or in part, shall be admissible in
evidence.
(People v. Mahinay, 302 SCRA 455, Feb. 1, 1999, En Banc [Per
Curiam])

206. Explain the kind of information that is required to be given by law

enforcement officers to suspect during custodial investigation.

Held: [I]t is settled that 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, 3 rd Div.
[Panganiban])

208. Can a PAO lawyer be considered an independent counsel within the

contemplation of Section 12, Article III, 1987 Constitution?

Held: In People v. Oracoy, 224 SCRA 759 [1993]; People v. Bandula, 232
SCRA 566 [1994], the SC has held that a PAO lawyer can be considered an
independent counsel within the contemplation of the Constitution
considering that he is not a special counsel, public or private prosecutor,
counsel of the police, or a municipal attorney whose interest is admittedly
adverse to that of the accused-appellant. Thus, the assistance of a PAO
lawyer satisfies the constitutional requirement of a competent and
independent counsel for the accused. (People v. Bacor, 306 SCRA 522,
April 30, 1999, 2nd Div. [Mendoza])

209. Is the confession of an accused given spontaneously, freely and

voluntarily to the Mayor admissible in evidence, considering that the Mayor
has operational supervision and control over the local police and may
arguably be deemed a law enforcement officer?

Held: While it is true that a municipal mayor has operational supervision

and control over the local police and may arguably be deemed a law
enforcement officer for purposes of applying Section 12(1) and (3) of Article
III of the Constitution, however, 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 accused-appellant unburdening his guilt
willingly, openly and publicly in the presence of newsmen. Such confession
does not form part of custodial investigation as it was not given to police
officers but to media men in an attempt to elicit sympathy and forgiveness
from the public. Besides, if he had indeed been forced into confessing, he
could have easily sought succor from the newsmen who, in all likelihood,
would have been sympathetic with him. X x x

X x x However, because of the inherent danger in the use of television

as a medium for admitting 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, 2n d
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 accused-appellant was not given the Miranda warnings effectively.
Under the Constitution, an uncounseled statement, such as it is called in the
United States from which Article III, Section 12(1) was derived, is presumed
to be psychologically coerced. Swept into an unfamiliar environment and
surrounded by intimidating figures typical of the atmosphere of police
interrogation, the suspect really needs the guiding hand of counsel.

Now, under the first paragraph of this provision, it is required that the
suspect in custodial interrogation must be given the following warnings: (1)
he must be informed of his right to remain silent; (2) he must be warned that
anything he says can and will be used against him; and (3) he must be told
that he has a right to counsel, and that if he is indigent, a lawyer will be
appointed to represent him.

Xxx

There was thus only a perfunctory reading of the Miranda rights to accused-
appellant without any effort to find out from him whether he wanted to have
counsel and, if so, whether he had his own counsel or he wanted the police
to appoint one for him. This kind of giving of warnings, in several decisions
of this Court, has been found to be merely ceremonial and inadequate to
transmit meaningful information to the suspect. Especially in this case, care
should have been scrupulously observed by the police investigator that
accused-appellant was specifically asked these questions considering that he
only finished the fourth grade of the elementary school. X x x

Moreover, Article III, Section 12(1) requires that counsel assisting suspects in
custodial interrogations be competent and independent. Here, accused-
appellant was assisted by Atty. De los Reyes, who, though presumably
competent, cannot be considered an independent counsel as contemplated
by the law for the reason that he was station commander of the WPD at the
time he assisted accused-appellant. X x x.

This is error. As observed in People v. Bandula (232 SCRA 566 [1994]), the
independent counsel required by Article III, Section 12(1) cannot be special
counsel, public or private prosecutor, municipal attorney, or counsel of the
police whose interest is admittedly adverse to the accused. In this case,
Atty. De los Reyes, as PC Captain and Station Commander of the WPD, was
part of the police force who could not be expected to have effectively and
scrupulously assisted accused-appellant in the investigation. To allow such a
happenstance would render illusory the protection given to the suspect
during custodial investigation. (People v. Obrero, 332 SCRA 190, 220
208, May 17, 2000, 2nd Div. [Mendoza])
 213. What are the requirements for an extra-judicial confession of an
accused to be admissible in evidence?

Held: 1. In jurisprudence, no confession can be admitted in evidence

unless it is given:

1) Freely and voluntarily, without compulsion, inducement or trickery;

2) Knowingly based on an effective communication to the individual
under custodial investigation of his constitutional rights; and
3) Intelligently with full appreciation of its importance and
comprehension of its consequences.

Once admitted, the confession must inspire credibility or be one which the
normal experience of mankind can accept as being within the realm of
probability.

A confession meeting all the foregoing requisites constitutes evidence of a

high order since it is supported by the strong presumption that no person of
normal mind will knowingly, freely and deliberately confess that he is the
perpetrator of a crime unless prompted by truth and conscience. When all
these requirements are met and the confession is admitted in evidence, the
burden of proof that it was obtained by undue pressure, threat or
intimidation rests upon the accused. (People v. Fabro, 277 SCRA 19,
Aug. 11, 1997 [Panganiban])

2. Numerous decisions of this Court rule that for an extrajudicial confession

to be admissible, it must be: 1) voluntary; 2) made with the assistance of
competent and independent counsel; 3) express; and 4) in writing.

The mantle of protection afforded by the above-quoted constitutional

provision covers the period from the time a person is taken into custody for
the investigation of his possible participation in the commission of a crime or
from the time he is singled out as a suspect in the commission of the offense
although not yet in custody. The exclusionary rule is premised on the
presumption that the defendant is thrust into an unfamiliar atmosphere
running through menacing police interrogation procedures where the
potentiality for compulsion, physical or psychological is forcefully apparent.

However, the rule is not intended as a deterrent to the accused from

confessing guilt if he voluntarily and intelligently so desires but to protect the
accused from admitting what he is coerced to admit although untrue.
(People v. Base, 329 SCRA 158, 169-171, March 30, 2000, 1 st Div.
[Ynares-Santiago])
214. Is the choice of a lawyer by a person under custodial investigation who
cannot afford the services of a counsel exclusive as to preclude other equally
competent and independent attorneys from handling his defense?

Held: It must be remembered in this regard that while the right to counsel
is immutable, the option to secure the services of counsel de parte is not
absolute. Indeed

The phrase competent and independent and preferably of his own choice
were explicit details which were added upon the persistence of human rights
lawyers in the 1986 Constitutional Commission who pointed out cases where,
during the martial law period, the lawyers made available to the detainee
would be one appointed by the military and therefore beholden to the
military. (Citing I Record of the Constitutional Commission 731-734; I Bernas,
The Constitution of the Republic of the Philippines, 1987 1st ed., p. 347)

Xxx xxx xxx

Withal, the word preferably under Section 12(1), Article 3 of the 1987
Constitution does not convey the message that the choice of a lawyer by a
person under investigation is exclusive as to preclude other equally
competent and independent attorneys from handling his defense. If the rule
were otherwise, then, the tempo of a custodial investigation will be solely in
the hands of the accused who can impede, nay, obstruct the progress of the
interrogation by simply selecting a lawyer who for one reason or another, is
not available to protect his interest. This absurd scenario could not have
been contemplated by the framers of the charter.

While the initial choice in cases where a person under custodial investigation
cannot afford the services of a lawyer is naturally lodged in the police
investigators, the accused really has the final choice as he may reject the
counsel chosen for him and ask for another one. A lawyer provided by the
investigators is deemed engaged by the accused where he never raised any
objection against the 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, 2 nd 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, 2nd Div. [De Leon])

The Right to Bail

219. In bail application where the accused is charged with a capital offense,
will it be proper for the judge to grant bail without conducting hearing if the
prosecutor interposes no objection to such application? Why?

Held: Jurisprudence is replete with decisions compelling judges to conduct

the required hearings in bail applications, in which the accused stands
charged with a capital offense. The absence of objection from the
prosecution is never a basis for the grant of bail in such cases, for the judge
has no right to presume that the prosecutor knows what he is doing on
account of familiarity with the case. "Said reasoning is tantamount to ceding
to the prosecutor the duty of exercising judicial discretion to determine
whether the guilt of the accused is strong. Judicial discretion is the domain
of the judge before whom the petition for provisional liberty will be decided.
The mandated duty to exercise discretion has never been reposed upon the
prosecutor."

Imposed in Baylon v. Sison (243 SCRA 284, April 6, 1995) was this mandatory
duty to conduct a hearing despite the prosecution's refusal to adduce
evidence in opposition to the application to grant and fix bail. (Joselito V.
Narciso v. Flor Marie Sta. Romana-Cruz, G.R. No. 134504, March 17,
2000, 3rd Div. [Panganiban])

220. What are the duties of the judge in cases of bail applications where the
accused is charged with capital offense?

Held: Basco v. Rapatalo (269 SCRA 220, March 5, 1997) enunciated the
following duties of the trial judge in such petition for bail:

1) Notify the prosecutor of the hearing of the application for bail or

require him to submit his recommendation;
2) Conduct a hearing of the application for bail regardless of whether
or not the prosecution refuses to present evidence to show that the guilt of
the accused is strong for the purpose of enabling the court to exercise its
sound discretion;
3) Decide whether the evidence of guilt of the accused is strong based
on the summary of evidence of the prosecution;
4) If the guilt of the accused is not strong, discharge the accused upon
the approval of the bailbond. Otherwise, petition should be denied.
The Court added: "The above-enumerated procedure should now leave no
room for doubt as to the duties of the trial judge in cases of bail applications.
So basic and fundamental is it to conduct a hearing in connection with the
grant of bail in the proper cases that it would amount to judicial apostasy for
any member of the judiciary to disclaim knowledge or awareness thereof."

Additionally, the court's grant or refusal of bail must contain a summary of

the evidence for the prosecution, on the basis of which should be formulated
the judge's own conclusion on whether such evidence is strong enough to
indicate the guilt of the accused. The summary thereof is considered an
aspect of procedural due process for both the prosecution and the defense;
its absence will invalidate the grant or the denial of the application for bail.
(Joselito V. Narciso v. Flor Marie Sta. Romana-Cruz, G.R. No. 134504,
March 17, 2000, 3rd Div. [Panganiban])

221. Should the accused who remained at large after their conviction be
allowed provisional liberty? Can the bail bond that the accused previously
posted be used during the entire period of appeal?

Held: Despite an order of arrest from the trial court and two warnings from
the Court of Appeals, petitioners had remained at large. It is axiomatic that
for one to be entitled to bail, he should be in the custody of the law, or
otherwise, deprived of liberty. The purpose of bail is to secure 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 pre-trial and
other off-court publicity of sensational criminal cases. The state of the art of
our communication system brings news as they happen straight to our
breakfast tables and right to our bedrooms. These news form part of our
everyday menu of the facts and fictions of life. For another, our idea of a fair
and impartial judge is not that of a hermit who is out of touch with the world.
We have not installed the jury system whose members are overly protected
from publicity lest they lose their impartiality. x x x. Our judges are learned
in the law and trained to disregard off-court evidence and on-camera
performances of parties to a litigation. Their mere exposure to publications
and publicity stunts does not per se fatally infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the
trial judge due to the barrage of publicity that characterized the investigation
and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this
standard of possibility of prejudice and adopted the test of actual prejudice
as we ruled that to warrant a finding of prejudicial publicity, there must be
allegation and proof that the judges have been unduly influenced, not simply
that they might be, by the barrage of publicity. In the case at bar, the
records do not show that the trial judge developed actual bias against
appellant as a consequence of the extensive media coverage of the pre-trial
and trial of his case. The totality of circumstances of the case does not
prove that the trial judge acquired a fixed opinion as a result of prejudicial
publicity which is incapable of change even by evidence presented during
the trial. Appellant has the burden to prove this actual bias and he has not
discharged the burden.

We expounded further on this doctrine in the subsequent case of Webb

v. Hon. Raul de Leon, etc. (247 SCRA 652 [1995]) and its companion cases,
viz.:

Again, petitioners raise the effect of prejudicial publicity on their right to due
process while undergoing preliminary investigation. We find no procedural
impediment to its early invocation considering the substantial risk to their
liberty whole undergoing a preliminary investigation.

Xxx

The democratic settings, media coverage of trials of sensational cases

cannot be avoided and oftentimes, its excessiveness has been aggravated
by kinetic developments in the telecommunications industry. For sure, few
cases can match the high volume and high velocity of publicity that attended
the preliminary investigation of the case at bar. Our daily diet of facts and
fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime.
Indeed, even the principal actors in the case the NBI, the respondents, their
lawyers and their sympathizers have participated in this media blitz. The
possibility of media abuses and their threat to a fair trial notwithstanding,
criminal trials cannot be completely closed to the press and public. In the
seminal case of Richmond Newspapers, Inc. v. Virginia, it was wisely held:

x x x

(a) The historical evidence of the evolution of the criminal trial in Anglo-
American justice demonstrates conclusively that at the time this Nations
organic laws were adopted, criminal trials both here and in England had long
been presumptively open, thus giving assurance that the proceedings were
conducted fairly to all concerned and discouraging perjury, the misconduct of
participants, or decisions based on secret bias or partiality. In addition, the
significant community therapeutic value of public trials was recognized:
when a shocking crime occurs, a community reaction of outrage and public
protest often follows, and thereafter the open processes of justice serve an
important prophylactic purpose, providing an outlet for community concern,
hostility, and emotion. To work effectively, it is important that societys
criminal process satisfy the appearance of justice, Offutt v. United States,
348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by
allowing people to observe such process. From this unbroken,
uncontradicted history, supported by reasons as valid today as in centuries
past, it must be concluded that a presumption of openness inheres in the
very nature of a criminal trial under this Nations system of justice, Cf., e.g.,
Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.

(b) The freedoms of speech, press, and assembly, expressly guaranteed by

the First Amendment, share a common core purpose of assuring freedom of
communication on matters relating to the functioning of government. In
guaranteeing freedoms such as those of speech and press, the First
Amendment can be read as protecting the right of everyone to attend trials
so as give meaning to those explicit guarantees; the First Amendment right
to receive information and ideas means, in the context of trials, that the
guarantees of speech and press, standing alone, prohibit government from
summarily closing courtroom doors which had long been open to the public
at the time the First Amendment was adopted. Moreover, the right of
assembly is also relevant, having been regarded not only as an independent
right but also as a catalyst to augment the free exercise of the other First
Amendment rights with which it was deliberately linked by the draftsmen. A
trial courtroom is a public place where the people generally and
representatives of the media have a right to be present, and where their
presence historically has been thought to enhance the integrity and quality
of what takes place.

(c) Even though the Constitution contains no provision which by its terms
guarantees to the public the right to attend criminal trials, various
fundamental rights, not expressly guaranteed, have been recognized as
indispensable to the enjoyment of enumerated rights. The right to attend
criminal trial is implicit in the guarantees of the First Amendment: without
the freedom to attend such trials, which people have exercised for centuries,
important aspects of freedom of speech and of the press could be
eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under

certain circumstances can deprive an accused of his due process right to fair
trial. Thus, in Martelino, et al. v. Alejandro, et al., we held that to warrant a
finding of prejudicial publicity there must be allegation and proof that the
judges have been unduly influenced, not simply that they might be, by the
barrage of publicity. In the case at bar, we find nothing in the records that
will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the
DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity
on the sense of fairness of the DOJ Panel, for these are basically unbeknown
and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant
Chief State Prosecutor and Senior State Prosecutors. Their long experience
in criminal investigation is a factor to consider in determining whether they
can easily be blinded by the klieg lights of publicity. Indeed, their 26-page
Resolution carries no indubitable indicia of bias for it does not appear that
they considered any extra-record evidence except evidence properly
adduced by the parties. The length of time the investigation was conducted
despite it summary nature and the generosity with which they
accommodated the discovery motions of petitioners speak well of their
fairness. At no instance, we note, did petitioners seek the disqualification of
any member of the DOJ Panel on the ground of bias resulting from their
bombardment of prejudicial publicity.

Applying the above ruling, we hold that there is not enough evidence to
warrant this Court to enjoin the preliminary investigation of the petitioner by
the respondent Ombudsman. Petitioner needs to offer more than hostile
headlines to discharge his burden of proof. He needs to show more than
weighty social science evidence to successfully prove the impaired capacity
of a judge to render a bias-free decision. Well to note, the cases against the
petitioner are still undergoing 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, 2nd
Div. [Quisumbing]
235. If the criminal case was dismissed predicated on the right of the
accused to speedy trial, but later the trial court reconsidered its decision and
allowed the case to be reinstated as it noted that the delay in the trial was
due to circumstances beyond the control of the parties and of the trial court,
i.e., the presiding judge was promoted to the Court of Appeals, and his
successor as trial judge was not immediately appointed, nor another judge
detailed to his sala, is there violation of the 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.
Enumerate exceptions thereto.

Held: 1. Before a party is allowed to seek the intervention of the court, it is

a pre-condition that he should have availed of all the means of
administrative processes afforded him. Hence, if a remedy within the
administrative machinery can still be resorted to by giving the administrative
officer concerned every opportunity to decide on a matter that comes within
his jurisdiction then such remedy should be exhausted first before the 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) when there is a violation of due process;

2) when the issue involved is purely a legal question;
3) when the administrative action is patently illegal amounting to lack
or excess of jurisdiction;
4) when there is estoppel on the part of the administrative agency
concerned;
5) when there is irreparable injury;
6) when the respondent is a department secretary whose acts as an
alter ego of the President bears the implied and assumed approval of the
latter;
7) when to require exhaustion of administrative remedies would be
unreasonable;
8) when it would amount to a nullification of a claim;
9) when the subject matter is a private land in land case proceeding;
10) when the rule does not provide a plain, speedy and adequate
remedy, and
11) when there are circumstances indicating the urgency of judicial
intervention.
(Paat v. CA, 266 SCRA 167 [1997])

2. Non-exhaustion of administrative remedies is not jurisdictional. It only

renders the action premature, i.e., claimed cause of action is not ripe for
judicial determination and for that reason a party has no cause of action to
ventilate in court. (Carale v. Abarintos, 269 SCRA 132)

250. When may the Government not validly invoke the rule that
prescription does not run against the State?

Held: While it is true that prescription does not run against the State, the
same may not be invoked by the government in this case since it is no longer
interested in the subject matter. While Camp Wallace may have belonged to
the government at the time Rafael 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. [Ynares-Santiago])

252. Is the filing of the administrative rules and regulations with the UP Law
Center the operative act that gives the rules force and effect?

Held: In granting Bayantel the provisional authority to operate a

CMTS, the NTC applied Rule 15, Section 3 of its 1978 Rules of Practice and
Procedure, which provides:

Sec. 3. Provisional Relief. Upon the filing of an application, complaint or

petition or at any stage thereafter, the Board may grant on motion of the
pleader or on its own initiative, the relief prayed for, based on the pleading,
together with the affidavits and supporting documents attached thereto,
without prejudice to a final decision after completion of the hearing which
shall be called within thirty (30) days from grant of authority asked for.
(italics ours)

Respondent Extelcom, however, contends that the NTC should have

applied the Revised Rules which were filed with the Office of the National
Administrative Register on February 3, 1993. These Revised Rules deleted
the phrase on its own initiative; accordingly, a provisional authority may be
issued only upon filing of the proper motion before the Commission.

In answer to this argument, the NTC, through the Secretary of the

Commission, issued a certification to the effect that inasmuch as the 1993
Revised Rules have not been published in a newspaper of general circulation,
the NTC has been applying the 1978 Rules.

The absence of publication, coupled with the certification by the

Commissioner of the NTC stating that the NTC was still governed by the 1987
Rules, clearly indicate that the 1993 Revised Rules have not taken effect at
the time of the grant of the provisional authority to Bayantel. The fact that
the 1993 Revised Rules were filed with the UP Law Center on February 3,
1993 is of no moment. There is nothing in the Administrative Code of 1987
which implies that the filing of the rules with the UP Law Center is the
operative act that gives the rules force and effect. Book VII, Chapter 2,
Section 3 thereof merely states:

Filing. (1) Every agency shall file with the University of the Philippines Law
Center three (3) certified copies of every rule adopted by it. Rules in force on
the date of effectivity of this Code which are not filed within three (3) months
from the date shall not thereafter be the basis of any sanction against any
party or persons.

(2) The records officer of the agency, or his equivalent functionary, shall
carry out the requirements of this section under pain of disciplinary action.

(3) A permanent register of all rules shall be kept by the issuing agency and
shall be open to public inspection.

The National Administrative Register is merely a bulletin of codified

rules and it is furnished only to the Office of the President, Congress, all
appellate courts, the National Library, other public offices or agencies as the
Congress may select, and to other persons at a price sufficient to cover
publication and mailing or distribution costs (Administrative Code of 1987,
Book VII, Chapter 2, Section 7). In a similar case, we held:
This does not imply, however, that the subject Administrative Order is a valid
exercise of such quasi-legislative power. The original Administrative Order
issued on August 30, 1989, under which the respondents filed their
applications for importations, was not published in the Official Gazette or in a
newspaper of general circulation. The questioned Administrative Order,
legally, until it is published, is invalid within the context of Article 2 of Civil
Code, which reads:

Article 2. Laws shall take effect after fifteen days following the completion
of their publication in the Official Gazette (or in a newspaper of general
circulation in the Philippines), unless it is otherwise provided. X x x

The fact that the amendments to Administrative Order No. SOCPEC 89-08-01
were filed with, and published by the UP Law Center in the National
Administrative Register, does not cure the defect related to the effectivity of
the Administrative Order.

This Court, in Tanada v. Tuvera (G.R. No. L-63915, December 29, 1986, 146
SCRA 446) stated, thus:

We hold therefore that all statutes, including those of local application and
private laws, shall be published as a condition for their effectivity, which shall
begin fifteen days after publication unless a different effectivity is fixed by
the legislature.

Covered by this rule are presidential decrees and executive orders

promulgated by the President in the exercise of legislative power or, at
present, directly conferred by the Constitution. Administrative Rules and
Regulations must also be published if their purpose is to enforce or
implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is,

regulating only the personnel of the administrative agency and not the
public, need not be published. Neither is publication required of the so-
called letters of instructions issued by administrative superiors concerning
the rules or guidelines to be followed by their subordinates in the
performance of their duties.
 Xxx

We agree that the publication must be in full or it is no publication at all since

its purpose is to inform the public of the contents of the laws.

The Administrative Order under consideration is one of those issuances

which should be published for its effectivity, since its purpose is to enforce
and implement an existing law pursuant to a valid delegation, i.e., P.D. 1071,
in relation to LOI 444 and EO 133 (Philippine International Trading Corp. v.
Angeles, 263 SCRA 421, 446-447 [1996]).

Thus, publication in the Official Gazette or a newspaper of general

circulation is a condition sine qua non before statutes, rules or regulations
can take effect. This is explicit from Executive Order No. 200, which repealed
Article 2 of the Civil Code, and which states that:

Laws shall take effect after fifteen days following the completion of their
publication either in the Official Gazette or in a newspaper of general
circulation in the Philippines, unless it is otherwise provided (E.O. 200,
Section 1).

The Rules of Practice and Procedure of the NTC, which implements

Section 29 of the Public Service Act (C.A. 146, as amended), fall squarely
within the scope of these laws, as explicitly mentioned in the case of Tanada
v. Tuvera (146 SCRA 446 [1986]).

Our pronouncement in Tanada v. Tuvera is clear and categorical.

Administrative rules and regulations must be published if their purpose is to
enforce or implement existing law pursuant to a valid delegation. The only
exception are interpretative regulations, those merely internal in nature, or
those so-called letters of instructions issued by administrative superiors
concerning the rules and guidelines to be followed by their subordinates in
the performance of their duties (PHILSA International Placement & Services
Corp. v. Secretary of Labor, G.R. No. 103144, April 4, 2001, 356 SCRA 174).

Hence, the 1993 Revised Rules should be published in the Official

Gazette or in a newspaper of general circulation before it can take effect.
Even the 1993 Revised Rules itself mandates that said Rules shall take effect
only after their publication in a newspaper of general circulation (Section 20
thereof). In the absence of such publication, therefore, it is the 1978 Rules
that governs. (Republic v. Express Telecommunication Co., Inc., 373
SCRA 316, Jan. 15, 2002, 1st Div. [Ynares-Santiago])

253. May a person be held liable for violation of an administrative

regulation which was not published?

Held: Petitioner insists, however, that it cannot be held liable for

illegal exaction as POEA Memorandum Circular No. II, Series of 1983, which
enumerated the allowable fees which may be collected from applicants, is
void for lack of publication.

There is merit in the argument.

In Tanada v. Tuvera (136 SCRA 27 [1985]), the Court held, as follows:

We hold therefore that all statutes, including those of local application and
private laws, shall be published as a condition for their effectivity, which shall
begin fifteen days after publication unless a different effectivity date is fixed
by the legislature.

Covered by this rule are presidential decrees and executive orders

promulgated by the President in the exercise of legislative powers whenever
the same are validly delegated by the legislature or, at present, directly
conferred by the Constitution. Administrative rules and regulations must
also be published if their purpose is to enforce or implement existing law
pursuant to a valid delegation.

Interpretative regulations and those merely internal in nature, that is,

regulating only the personnel of the administrative agency and the public,
need not be published. Neither is publication required of the so-called letter
of instructions issued by the administrative superiors concerning the rules or
guidelines to be followed by their subordinates in the performance of their
duties.

Applying this doctrine, we have previously declared as having no force

and effect the following administrative issuances: a) Rules and Regulations
issued by the Joint Ministry of Health-Ministry of Labor and Employment
Accreditation Committee regarding the accreditation of hospitals, medical
clinics and laboratories (Joint Ministry of Health-Ministry of Labor and
Employment Accreditation Committee v. Court of Appeals, 196 SCRA 263
[1991]); b) Letter of Instruction No. 416 ordering the suspension of payments
due and payable by distressed copper mining companies to the national
government (Caltex Philippines, Inc. v. Court of Appeals, 208 SCRA 726
[1992]); c) Memorandum Circulars issued by the POEA regulating the
recruitment of domestic helpers to Hong Kong (Phil. Association of Service
Exporters v. Torres, 212 SCRA 298 [1992]); d) Administrative Order No.
SOCPEC 89-08-01 issued by the Philippine International Trading Corporation
regulating applications for importation from the 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 quasi-judicial body. This view, however, has
not heretofore been shared by this Court. In Carino v. Commission on
Human Rights (204 SCRA 483, 492), the Court x x x has observed that it is
only the first of the enumerated powers and functions that bears any
resemblance to adjudication of adjudgment, but that resemblance can in no
way be synonymous to the adjudicatory power itself. The Court explained:

x x x [T]he Commission on Human Rights x x x was not meant by the

fundamental law to be another court or quasi-judicial agency in this country,
or duplicate much less take over the functions of the latter.

The most that may be conceded to the Commission in the way of

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

258. Does the Commission on Human Rights have jurisdiction to issue TRO
or writ of preliminary injunction?

Held: In Export Processing Zone Authority v. Commission on Human

rights (208 SCRA 125, 131), the Court x x x explained:

The constitutional provision directing the CHR to provide for preventive

measures and legal aid services to the underprivileged whose human rights
have been violated or need protection may not be construed to confer
jurisdiction on the Commission to issue a restraining order or writ of
injunction for, if that were the intention, the Constitution would have
expressly said so. Jurisdiction is conferred only by the Constitution or by
law. It is never derived by implication.

Evidently, the preventive measures and legal aid services mentioned in

the Constitution refer to extrajudicial and judicial remedies (including a writ
of preliminary injunction) which the CHR may seek from the proper courts on
behalf of the victims of human rights violations. Not being a court of justice,
the CHR itself has no jurisdiction to issue the writ, for a writ of preliminary
injunction may only be issued by the judge of any court in which the action
is pending [within his district], or by a Justice of the Court of Appeals, or of
the Supreme Court. x x x. A writ of preliminary injunction is an ancillary
remedy. It is available only in a pending principal action, for the preservation
or protection of the rights and interest of a party thereto, and for no other
purpose.

The Commission does have legal standing to indorse, for appropriate action,
its findings and recommendations to any appropriate agency of government
(See Export Processing Zone Authority v. Commission on Human Rights, 208
SCRA 125). (Simon, Jr. v. Commission on Human Rights, 229 SCRA
117, 134-135, Jan. 5, 1994, En Banc [Vitug, J.])

259. Discuss the contempt power of the Commission on Human Rights

(CHR). When may it be validly exercised?

Held: On its contempt powers, the CHR is constitutionally authorized

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

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

Ans.: Positions in the Civil Service may be classified into: 1) Career

Positions, and 2) Non-Career Positions.

Career Positions are characterized by (1) entrance based on merit and fitness
to be determined as far as practicable by competitive examination, or based
on highly technical qualifications; (2) opportunity for advancement to higher
career positions; and (3) security of tenure (Sec. 7, Chap. 2, Subtitle A,
Title I, Bk. V, E.O. No. 292).

The Non-Career Service shall be characterized by (1) entrance on bases

other than of the usual tests of merit or fitness utilized for the career service;
and (2) tenure which is limited to a period specified by law, or which is
coterminous with that of the appointing authority or subject to his pleasure,
or which is limited to the duration of a particular project for which purpose
employment was made (Sec. 9, Chap. 2, Subtitle A, Title I, Bk. V, E.O.
No. 292).

261. Define Appointment. Discuss its nature.

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

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

The power to appoint is, in essence, discretionary. The appointing power

has the right of choice which he may exercise freely according to his
judgment, deciding for himself who is best qualified among those who have
the necessary qualifications and eligibilities. It is a prerogative of the
appointing power x x x. (At p. 579)
Indeed, it may rightly be said that the right of choice is the heart of the
power to appoint. In the exercise of the power of appointment, discretion is
an integral thereof. (Bermudez v. Torres, 311 SCRA 733, Aug. 4, 1999,
3rd Div. [Vitug])

262. May the Civil Service Commission, or the Supreme Court, validly nullify
an appointment on the ground that somebody else is better qualified?

Held: The head of an agency who is the appointing power is the one most
knowledgeable to decide who can best perform the functions of the office.
Appointment is an essentially discretionary power and must be performed by
the officer vested with such power according to his best lights, the only
condition being that the appointee should possess the qualifications required
by law. If he does, then the appointment cannot be faulted on the ground
that there are others better qualified who should have been preferred.
Indeed, this is a prerogative of the appointing authority which he alone can
decide. The choice of an appointee from among those who possess the
required qualifications is a political and administrative decision calling for
considerations of wisdom, convenience, utility and the interests of the
service which can best be made by the head of the office concerned, the
person most familiar with the organizational structure and environmental
circumstances within which the appointee must function.

As long as the appointee is qualified the Civil Service Commission has no

choice but to attest to and respect the appointment even if it be proved that
there are others with superior credentials. The law limits the 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-in-rank, as the
concept does not import any mandatory or peremptory requirement that the
person next-in-rank must be appointed to the vacancy. The appointing
authority, under the Civil Service Law, is allowed to fill vacancies by
promotion, transfer of present employees, reinstatement, reemployment,
and appointment of outsiders who have appropriate civil service eligibility,
not necessarily in that order. There is no legal fiat that a vacancy must be
filled only by promotion; the appointing authority is given wide discretion to
fill a vacancy from among the several alternatives provided by law.

What the Civil Service Law provides is that if a vacancy is filled by promotion,
the person holding the position next in rank thereto shall be considered for
promotion.

In Taduran v. Civil Service Commission (131 SCRA 66 [1984]), the Court

construed that phrase to mean that the person next-in-rank would be
among the first to be considered for the vacancy, if qualified. In Santiago,
Jr. v. Civil Service Commission (178 SCRA 733 [1989]), the Court elaborated
the import of the rule in the following manner:

One who is next-in-rank is entitled to preferential consideration for

promotion to the higher vacancy but it does not necessarily follow that he
and no one else can be appointed. The rule neither grants a vested right to
the holder nor imposes a ministerial duty on the appointing authority to
promote such person to the next higher position x x x
(Abila v. CSC, 198 SCRA 102, June 3, 1991, En Banc [Feliciano])

263. Can a person who lacks the necessary qualifications for a public
position be appointed to it in a permanent capacity? Illustrative case.

Held: At the outset, it must be stressed that the position of Ministry

Legal Counsel-CESO IV is embraced in the Career Executive Service. X x x

In the case at bar, there is no question that private respondent does

not have the required CES eligibility. As admitted by private respondent in
his Comment, he is not a CESO or a member of the Career Executive
Service.

In the case of Achacoso v. Macaraig, et al. (195 SCRA 235, 239-240

[1991]), the Court held:

It is settled that a permanent appointment can be issued only to a person

who meets all the requirements for the position to which he s being
appointed, including the appropriate eligibility prescribed. Achacoso did
not. At best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the appointing
authority and at a 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 CES eligibility; and

b Appointment to the appropriate CES rank.

In addition, it must be stressed that the security of tenure of employees in

the career executive service (except first and second level employees in the
civil service), pertains only to rank and not to the office or to the position to
which they may be appointed. Thus, a career executive service officer may
be transferred or reassigned from one position to another without losing his
rank which follows him wherever he is transferred or reassigned. In fact, a
CESO suffers no diminution of salary even if assigned to a CES position with
lower salary grade, as he is compensated according to his CES rank and not
on the basis of the position or office he occupies.

In the case at bar, there is no question that respondent Ramon S. Roco,

though a CES eligible, does not possess the appropriate CES rank, which is
CES rank level V, for the position of Regional Director of the LTO (Region V).
Falling short of one of the qualifications that would complete his membership
in the CES, respondent cannot successfully interpose violation of security of
tenure. Accordingly, he could be validly reassigned to other positions in the
career executive service. X x x
Moreover, under the mobility and flexibility principles of the Integrated
Reorganization Plan, CES personnel may be reassigned or transferred from
one position to another x x x.

One last point. Respondent capitalizes on the fact that petitioner Luis Mario
M. General is not a CES eligible. The absence, however, of such CES
eligibility is of no moment. As stated in Part III, Chapter I, Article IV,
paragraph 5(c), of the Integrated Reorganization Plan

x x x the President may, in exceptional cases, appoint any person who is not
a Career Executive Service eligible; provided that such appointee shall
subsequently take the required Career Executive Service examination and
that he shall not be promoted to a higher class until he qualified in such
examination.

Evidently, the law allows appointment of those who are not CES eligible,
subject to the obtention of said eligibility, in the same manner that the
appointment of respondent who does not possess the required CES rank (CES
rank level V) for the position of Regional Director of the LTO, is permitted in a
temporary capacity. (General v. Roco, 350 SCRA 528, Jan. 29, 2001, 1st
Div. [Ynares-Santiago])

265. May an elective public official be validly appointed or designated to

any public office or position during his tenure?

Ans.: No elective official shall be eligible for appointment or

designation in any capacity to any public office or position during his tenure.
(Sec. 7, 1st par., Art. IX-B, 1987 Constitution)

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

Ans.: Unless otherwise allowed by law or by the primary functions of

his position, no appointive official shall hold any other office or employment
in the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporation. (Sec. 7, 2nd par.,
Art. IX-B, 1987 Constitution)

267. May the President, Vice-President, Members of the Cabinet, their

deputies or assistants hold any other office or employment?
 Ans.: The President, Vice-President, the Members of the Cabinet, and
their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure. (Sec.
13, Art. VII, 1987 Constitution)

268. Does the prohibition in Section 13, Article VII of the 1987 Constitution
insofar as Cabinet members, their deputies or assistants are concerned
admit of the broad exceptions made for appointive officials in general under
Section 7, par. (2), Article IX-B?

Held: The threshold question therefore is: does the prohibition in

Section 13, Article VII of the 1987 Constitution insofar as Cabinet members,
their deputies or assistants are concerned admit of the broad exceptions
made for appointive officials in general under Section 7, par. (2), Article IX-B
which, for easy reference is quoted anew, thus: Unless otherwise allowed by
law or by the primary functions of his position, no appointive official shall
hold any other office or employment in the government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled
corporation or their subsidiaries.

We rule in the negative.

Xxx

The practice of designating members of the Cabinet, their deputies and

assistants as members of the governing bodies or boards of various
government agencies and instrumentalities, including government-owned
and controlled corporations, became prevalent during the time legislative
powers in this country were exercised by former President Ferdinand E.
Marcos pursuant to his martial law authority. There was a proliferation of
newly-created agencies, instrumentalities and government-owned and
controlled corporations created by presidential decrees and other modes of
presidential issuances where Cabinet members, their deputies or assistants
were designated to head or sit as members of the board with the
corresponding salaries, emoluments, per diems, allowances and other
perquisites of office. X x x

This practice of holding multiple offices or positions in the government

soon led to abuses by unscrupulous public officials who took advantage of
this scheme for purposes of self-enrichment. X x x

Particularly odious and revolting to the peoples sense of propriety and

morality in government service were the data contained therein that Roberto
v. Ongpin was a member of the governing boards of twenty-nine (29)
governmental agencies, instrumentalities and corporations; Imelda R. Marcos
of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr.
of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each
(14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Rono
of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo
Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Pena of ten
(10) each.

The blatant betrayal of public trust evolved into one of the serious
causes of discontent with the Marcos regime. It was therefore quite
inevitable and in consonance with the overwhelming sentiment of the people
that the 1986 Constitutional Commission, convened as it was after the
people successfully unseated former President Marcos, should draft into its
proposed Constitution the provisions under consideration which are
envisioned to remedy, if not correct, the evils that flow from the holding of
multiple governmental offices and employment. X x x

But what is indeed significant is the fact that although Section 7,

Article IX-B already contains a blanket prohibition against the holding of
multiple offices or employment in the government subsuming both elective
and appointive public officials, the Constitutional Commission should see it fit
to formulate another provision, Sec. 13, Article VII, specifically prohibiting the
President, Vice-President, members of the Cabinet, their deputies and
assistants from holding any other office or employment during their tenure,
unless otherwise provided in the Constitution itself.

Evidently, from this move as well as in the different phraseologies of

the constitutional provisions in question, the intent of the framers of the
Constitution was to impose a stricter prohibition on the President and his
official family in so far as holding other offices or employment in the
government or elsewhere is concerned.

Moreover, such intent is underscored by a comparison of Section 13,

Article VII with other provisions of the Constitution on the disqualifications of
certain public officials or employees from holding other offices or
employment. Under Section 13, Article VI, [N]o Senator or Member of the
House of Representatives may hold any other office or employment in the
Government x x x. Under section 5(4), Article XVI, [N]o member of the
armed forces in the active service shall, at any time, be appointed in any
capacity to a civilian position in the Government, including government-
owned or controlled corporations or any of their subsidiaries. Even Section
7(2), Article IX-B, relied upon by respondents provides [U]nless otherwise
allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government.

It is quite notable that in all these provisions on disqualifications to

hold other office or employment, the prohibition pertains to an office or
employment in the government and government-owned or controlled
corporations or their subsidiaries. In striking contrast is the wording of
Section 13, Article VII which states that [T]he President, Vice-President, the
Members of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or employment
during their tenure. In the latter provision, the disqualification is absolute,
not being qualified by the phrase in the Government. The prohibition
imposed on the President and his official family is therefore all-embracing
and covers both public and private office or employment.

Going further into Section 13, Article VII, the second sentence provides:
They shall not, during said tenure, directly or indirectly, practice any other
profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries. These
sweeping, all-embracing prohibitions imposed on the President and his
official family, which prohibitions are not similarly imposed on other public
officials or employees such as the Members of Congress, members of the
civil service in general and members of the armed forces, are proof of the
intent of the 1987 Constitution to treat the President and his official family as
a class by itself and to impose upon said class stricter prohibitions.

Xxx

Thus, while all other appointive officials in the civil service are allowed
to hold other office or employment in the government during their tenure
when such is allowed by law or by the primary functions of their positions,
members of the Cabinet, their deputies and assistants may do so only when
expressly authorized by the Constitution itself. In other words, Section 7,
Article IX-B is meant to lay down the general rule applicable to all elective
and appointive public officials and employees, while Section 13, Article VII is
meant to be the exception applicable only to the President, the Vice-
President, Members of the Cabinet, their deputies and assistants.

This being the case, the qualifying phrase unless otherwise provided
in this Constitution in Section 13, Article VII cannot possibly refer to the
broad exceptions provided under Section 7, Article IX-B of the 1987
Constitution. To construe said qualifying phrase as respondents would have
us to do, would render nugatory and meaningless the manifest intent and
purpose of the framers of the Constitution to impose a stricter prohibition on
the President, Vice-President, Members of the Cabinet, their deputies and
assistants with respect to holding other offices or employment in the
government during their tenure. Respondents interpretation that Section 13
of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-
B would obliterate the distinction so carefully set by the framers of the
Constitution as to when the high-ranking officials of the Executive Branch
from the President to assistant Secretary, on the one hand, and the
generality of civil servants from the rank immediately below Assistant
Secretary downwards, on the other, may hold any other office or position in
the government during their tenure.

Moreover, respondents reading of the provisions in question would

render certain parts of the Constitution inoperative. This observation applies
particularly to the Vice-President who, under Section 13 of Article VII is
allowed to hold other office or employment when so authorized by the
Constitution, but who as an elective public official under Sec. 7, par. (1) of
Article IX-B is absolutely ineligible for appointment or designation in any
capacity to any public office or position during his tenure. Surely, to say
that the phrase unless otherwise provided in this Constitution found in
Section 13, Article VII has reference to Section 7, par. (1) of Article IX-B would
render meaningless the specific provisions of the Constitution authorizing the
Vice-President to become a member of the Cabinet (Sec. 3, Ibid.), and to act
as President without relinquishing the Vice-Presidency where the President
shall not have been chosen or fails to qualify (Sec. 7, Article VII). Such
absurd consequence can be avoided only by interpreting the two provisions
under consideration as one, i.e., Section 7, par. (1) of Article IX-B providing
the general rule and the other, i.e., Section 13, Article VII as constituting the
exception thereto. In the same manner must Section 7, par. (2) of Article IX-
B be construed vis--vis Section 13, Article VII.

Xxx

Since the evident purpose of the framers of the 1987 Constitution is to

impose a stricter prohibition on the President, Vice-President, members of
the Cabinet, their deputies and assistants with respect to holding multiple
offices or employment in the government during their tenure, the exception
to this prohibition must be read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory so that it must be
understood as intended to be a positive and unequivocal negation of the
privilege of holding multiple government offices and employment. Verily,
wherever the language used in the constitution is prohibitory, it is to be
understood as intended to be a positive and unequivocal negation (Varney v.
Justice, 86 Ky 596; 6 S.W. 457; Hunt v. State, 22 Tex. App. 396, 3 S.W. 233).
The phrase unless otherwise provided in this Constitution must be given a
literal interpretation to refer only to those particular instances cited in the
Constitution itself, to wit: the Vice-President being appointed as a member of
the Cabinet under Section 3, par. (2), Article VII; or acting as President in
those instances provided under Section 7, pars. (2) and (3), Article VII; and,
the Secretary of Justice being ex-officio member of the Judicial and Bar
Council by virtue of Section 8 (1), Article VIII.

Xxx
 It being clear x x x that the 1987 Constitution seeks to prohibit the
President, Vice-President, members of the Cabinet, their deputies or
assistants from holding during their tenure multiple offices or employment in
the government, except in those cases specified in the Constitution itself and
as above clarified with respect to posts held without additional compensation
in an ex-officio capacity as provided by law and as required by the primary
functions of their office, the citation of Cabinet members (then called
Ministers) as examples during the debate and deliberation on the general
rule laid down for all appointive officials should be considered as mere
personal opinions which cannot override the constitutions manifest intent
and the peoples understanding thereof.

In the light of the construction given to Section 13, Article VII in

relation to Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive
Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting
the number of positions that Cabinet members, undersecretaries or assistant
secretaries may hold in addition to their primary position to not more than
two (2) positions in the government and government corporations, Executive
Order No. 284 actually allows them to hold multiple offices or employment in
direct contravention of the express mandate of Section 13, Article VII of the
1987 Constitution prohibiting them from doing so, unless otherwise provided
in the 1987 Constitution itself.

The Court is alerted by respondents to the impractical consequences

that will result from a strict application of the prohibition mandated under
Section 13, Article VII on the operations of the Government, considering that
Cabinet members would be stripped of their offices held in an ex-officio
capacity, by reason of their primary positions or by virtue of legislation. As
earlier clarified in this decision, ex-officio posts held by the executive official
concerned without additional compensation as provided by law and as
required by the primary functions of his office do not fall under the definition
of any other office within the contemplation of the constitutional
prohibition. With respect to other offices or employment held by virtue of
legislation, including chairmanships or directorships in government-owned or
controlled corporations and their subsidiaries, suffice it to say that the feared
impractical consequences are more apparent than real. Being head of an
executive department is no mean job. It is more than a full-time job,
requiring full attention, specialized knowledge, skills and expertise. If
maximum benefits are to be derived from a department heads ability and
expertise, he should be allowed to attend to his duties and responsibilities
without the distraction of other governmental offices or employment. He
should be precluded from dissipating his efforts, attention and energy among
too many positions and responsibility, which may result in haphazardness
and inefficiency. Surely the advantages to be derived from this
concentration of attention, knowledge and expertise, particularly at this
stage of our national and economic development, far outweigh the benefits,
if any, that may be gained from a department head spreading himself too
thin and taking in more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the Court

hereby orders respondents x x x to immediately relinquish their other offices
or employment, as 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-in-Charge of the EID is legally unassailable. (Matibag v. Benipayo,
380 SCRA 49, April 2, 2002, En Banc [Carpio])

273. May the appointment of a person assuming a position in the civil

service under a completed appointment be validly recalled or revoked?

Held: It has been held that upon the issuance of an appointment and the
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 Non-compliance with the procedures/criteria provided in the agencys Merit

Promotion Plan;
b Failure to pass through the agencys Selection/Promotion Board;
c Violation of the existing collective agreement between management and
employees relative to promotion; or
d Violation of other existing civil service law, rules and regulations.

Accordingly, the appointments of the private respondents may only be

recalled on the above-cited grounds. And yet, the only reason advanced by
the petitioner to justify the recall was that these were midnight
appointments. The CSC correctly ruled, however, that the constitutional
prohibition on so-called midnight appointments, specifically those made
within two (2) months immediately prior to the next presidential elections,
applies only to the President or Acting President. (De Rama v. Court of
Appeals, 353 SCRA 94, Feb. 28, 2001, En Banc [Ynares-Santiago])

274. The Philippine National Red Cross (PNRC) is a government-owned and

controlled corporation with an original charter under R.A. No. 95, as
amended. Its charter, however, was amended to vest in it the authority to
secure loans, be exempted from payment of all duties, taxes, fees and other
charges, etc. With the amendment of its charter, has it been impliedly
converted to a private corporation?

Held: The test to determine whether a corporation is government owned or

controlled, or private in nature is simple. Is it created by its own charter for
the exercise of a public function, or by incorporation under the general
corporation law? Those with special charters are government corporations
subject to its provisions, and its employees are under the jurisdiction of the
Civil Service Commission. The PNRC was not impliedly converted to a
private corporation simply because its charter was amended to vest in it the
authority to secure loans, be exempted from payment of all duties, taxes,
fees and other charges, etc. (Camporedondo v. NLRC, G.R. No. 129049,
Aug. 6, 1999, 1st Div. [Pardo])

275. What is a primarily confidential position? What is the test to determine

whether a position is primarily confidential or not?

Held: A primarily confidential position is one which denotes not only

confidence in the aptitude of the appointee for the duties of the office but
primarily close intimacy which ensures freedom from intercourse without
embarrassment or freedom from misgivings or betrayals of personal trust or
confidential matters of state. (De los Santos v. Mallare, 87 Phil. 289 [1950])

Under the proximity rule, the occupant of a particular position could be

considered a confidential employee if the predominant reason why he was
chosen by the appointing authority was the 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. X x x

We have previously interpreted the phrase under his authority to mean

that the Ombudsman can preventively suspend all officials under
investigation by his office, regardless of the branch of government in which
they are employed (Buenaseda v. Flavier, 226 SCRA 645, 654 [1993]),
excepting of course those removable by impeachment, members of Congress
and the Judiciary.

The power to preventively suspend is available not only to the Ombudsman

but also to the Deputy Ombudsman. This is the clear import of Section 24 of
R.A. 6770 abovecited.
There can be no question in this case as to the power and authority of
respondent Deputy Ombudsman to issue an order of preventive suspension
against an official like the petitioner, to prevent that official from using his
office to intimidate or influence witnesses (Gloria v. CA, et al., G.R. No.
131012, April 21, 1999, p. 7, 306 SCRA 287) or to tamper with records that
might be vital to the prosecution of the case against him (Yasay, Jr. v.
Desierto, et al., G.R. No. 134495, December 28, 1998, p. 9, 300 SCRA 494).
In our view, the present controversy simply boils down to this pivotal
question: Given the purpose of preventive suspension and the circumstances
of this case, did respondent Deputy Ombudsman commit a grave abuse of
discretion when he set the period of preventive suspension at six months?

Preventive suspension under Sec. 24, R.A. 6770 x x x may be imposed when,
among other factors, the evidence of guilt is strong. The period for which an
official may be preventively suspended must not exceed six months. In this
case, petitioner was preventively suspended and ordered to cease and desist
from holding office for the entire period of six months, which is the maximum
provided by law.

The determination of whether or not the evidence of guilt is strong as to

warrant preventive suspension rests with the Ombudsman (Nera v. Garcia,
106 Phil. 1031 [1960]; others omitted.). The discretion as regards the period
of such suspension also necessarily belongs to the Ombudsman, except that
he cannot extend the period of suspension beyond that provided by law
(Castillo-Co v. Barbers, supra.). But, in our view, both the strength of the
evidence to warrant said suspension and the propriety of the length or period
of suspension imposed on petitioner are properly raised in this petition for
certiorari and prohibition. X x x

Xxx

Given these findings, we cannot say now that there is no evidence

sufficiently strong to justify the imposition of preventive suspension against
petitioner. But considering its purpose and the circumstances in the case
brought before us, it does appear to us that the imposition of the maximum
period of six months is unwarranted.

X x x [G]ranting that now the evidence against petitioner is already strong,

even without conceding that initially it was weak, it is clear to us that the
maximum six-month period is excessive and definitely longer than necessary
for the Ombudsman to make its legitimate case against petitioner. We must
conclude that the period during which petitioner was already preventively
suspended, has been sufficient for the lawful purpose of preventing
petitioner from hiding and destroying needed documents, or harassing and
preventing witnesses who wish to appear against him. (Garcia v. Mojica,
314 SCRA 207, Sept. 10, 1999, 2nd Div. [Quisumbing])
280. Distinguish preventive suspension under the Local Government Code
from preventive suspension under the Ombudsman Act.

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

subscribing to 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
counter-affidavit to the complaint filed by respondent Tagaan. We find this
10-day period is in keeping with Section 5[a] of the Rules of Procedure of the
Office of the Ombudsman x x x. (Garcia v. Mojica, 314 SCRA 207, Sept.
10, 1999, 2nd Div. [Quisumbing])

281. Does Section 13, Republic Act No. 3019 exclude from its coverage the
members of Congress and, therefore, the Sandiganbayan erred in decreeing
the preventive suspension order against Senator Miriam Defensor-Santiago?
Will the order of suspension prescribed by Republic Act No. 3019 not
encroach on the power of Congress to discipline its own ranks under the
Constitution?

Held: The petition assails the authority of the Sandiganbayan to

decree a ninety-day preventive suspension of Mme. Miriam Defensor-
Santiago, a Senator of the Republic of the Philippines, from any government
position, and furnishing a copy thereof to the Senate of the Philippines for
the implementation of the suspension order.

The authority of the Sandiganbayan to order the preventive suspension

of an incumbent public official charged with violation of the provisions of
Republic Act No. 3019 has both legal and jurisprudential support. X x x

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 pre-suspension proceeding before trial on the merits
proceeds. Neither does it contemplate a proceeding to determine (1) the
strength of the evidence of culpability against him, (2) the gravity of the
offense charged, or (3) whether or not his continuance in office could
influence the witnesses or pose a threat to the safety and integrity of the
records and other evidence before the court could have a valid basis in
decreeing preventive suspension pending the trial of the case. All it secures
to the accused is adequate opportunity to challenge the validity or regularity
of the proceedings against him, such as, that he has not been afforded the
right to due preliminary investigation, that the acts imputed to him do not
constitute a specific crime warranting his mandatory suspension from office
under Section 13 of Republic Act No. 3019, or that the information is subject
to quashal on any of the grounds set out in Section 3, Rule 117, of the
Revised Rules on Criminal Procedure (Segovia v. Sandiganbayan, supra;
Resolution of the Supreme Court in A.M. No. 00-05-03-SC, dated 03 October
2000, which became effective on 01 December 2000)

Xxx

The pronouncement, upholding the validity of the information filed

against petitioner, behooved Sandiganbayan to discharge its mandated duty
to forthwith issue the order of preventive suspension.

The order of suspension prescribed by Republic Act No. 3019 is distinct

from the power of Congress to discipline its own ranks under the Constitution
which provides that each
x x x house may determine the rules of its proceedings, punish its Members
for disorderly behavior, and, with the concurrence of two-thirds of all its
Members, suspend or expel a Member. A penalty of suspension, when
imposed, shall not exceed sixty days. (Section 16[3], Article VI, 1987
Constitution)

The suspension contemplated in the above constitutional provision is a

punitive measure that is imposed upon determination by the Senate or the
House of Representatives, as the case may be, upon an erring member.
Thus, in its resolution in the case of Ceferino Paredes, Jr. v. Sandiganbayan,
et al. (G.R. No. 118364, 08 August 1995), the Court affirmed the order of
suspension of Congressman Paredes by the Sandiganbayan, despite his
protestations on the encroachment by the court on the prerogatives of
Congress. The Court ruled:

x x x. 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? Does it apply to

pending criminal cases?

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

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

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, 2 nd
Div. [Quisumbing])

284. What are the situations covered by the law on nepotism?

Held: Under the definition of nepotism, one is guilty of nepotism if an

appointment is issued in favor of a relative within the third civil degree of
consanguinity or affinity of any of the following:

a) appointing authority;
b) recommending authority;
c) chief of the bureau or office; and
d) person exercising immediate supervision over the appointee.

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

285. What are the exemptions from the operation of the rules on nepotism?
Ans.: The following are exempted from the operation of the rules on
nepotism: (a) persons employed in a confidential capacity, (b) teachers, (c)
physicians, and (d) members of the Armed Forces of the Philippines.

The rules on nepotism shall likewise not be applicable to the case of a

member of any family who, after his or her appointment to any position in an
office or bureau, contracts marriage with someone in the same office or
bureau, in which event the employment or retention therein of both husband
and wife may be allowed. (Sec. 59, Chap. 7, Subtitle A, Title I, Bk. V,
E.O. No. 292)

286. Distinguish term of office from tenure of the incumbent.

Held: In the law of public officers, there is a settled distinction between

term and tenure. [T]he term of an office must be distinguished from the
tenure of the incumbent. The term means the time during which the officer
may claim to hold office as of right, and fixes the interval after which the
several incumbents shall succeed one another. The tenure represents the
term during which the incumbent actually holds the office. The term of office
is not affected by the hold-over. The tenure may be shorter than the term
for reasons within or beyond the power of the incumbent. (Thelma P.
Gaminde v. COA, G.R. No. 140335, Dec. 13, 2000, En Banc [Pardo])

287. Discuss the operation of the rotational plan insofar as the term of
office of the Chairman and Members of the Constitutional Commissions is
concerned.

Held: In Republic v. Imperial (96 Phil. 770 [1955]), we said that the
operation of the rotational plan requires two conditions, both indispensable
to its workability: (1) that the terms of the first three (3) Commissioners
should start on a common date, and (2) that any vacancy due to death,
resignation or disability before the expiration of the term should only be filled
only for the unexpired balance of the term.

Consequently, the terms of the first Chairmen and Commissioners of the

Constitutional Commissions under the 1987 Constitution must start on a
common date, irrespective of the variations in the dates of appointments
and qualifications of the appointees, in order that the expiration of the first
terms of seven, five and three years should lead to the regular recurrence of
the two-year interval between the expiration of the terms.

Applying the foregoing conditions x x x, we rule that the appropriate starting

point of the terms of office of the first appointees to the Constitutional
Commissions under the 1987 Constitution must be on February 2, 1987, the
date of the adoption of the 1987 Constitution. In case of a belated
appointment or qualification, the interval between the start of the term and
the actual qualification of the appointee must be counted against the latter.
(Thelma P. Gaminde v. COA, G.R. No. 140335, Dec. 13, 2000, En Banc
[Pardo])

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

Held: 1. The concept of holdover when applied to a public officer implies

that the office has a fixed term and the incumbent is holding onto the
succeeding term. It is usually provided by law that officers elected or
appointed for a fixed term shall remain in office not only for that term but
until their successors have been elected and qualified. Where this provision
is found, the office does not become vacant upon the expiration of the term
if there is no successor elected and qualified to assume it, but the present
incumbent will carry over until his successor is elected and qualified, even
though it be beyond the term fixed by law.

Absent an express or implied constitutional or statutory provision to the

contrary, an officer is entitled to stay in office until his successor is appointed
or chosen and has qualified. The legislative intent of not allowing holdover
must be clearly expressed or at least implied in the legislative enactment,
otherwise it is reasonable to assume that the law-making body favors the
same.

Indeed, the law abhors a vacuum in public offices, and courts generally
indulge in the strong presumption against a legislative intent to create, by
statute, a condition which may result in an executive or administrative office
becoming, for any period of time, wholly vacant or unoccupied by one
lawfully authorized to exercise its functions. This is founded on obvious
considerations of public policy, for the principle of holdover is specifically
intended to prevent public convenience from suffering because of a vacancy
and to avoid a hiatus in the performance of government functions. (Lecaroz
v. Sandiganbayan, 305 SCRA 397, March 25, 1999, 2 nd Div.
[Bellosillo])

2. The rule is settled that unless holding over be expressly or impliedly

prohibited, the incumbent may continue to hold over until someone else is
elected and qualified to assume the office. This rule is demanded by the
most obvious requirements of public policy, for without it there must
frequently be cases where, from a failure to elect or a refusal or neglect to
qualify, the office would be vacant and the public service entirely
suspended. Otherwise stated, the purpose is to prevent a hiatus in the
government pending the time when the successor may be chosen and
inducted into office. (Galarosa v. Valencia, 227 SCRA 728, Nov. 11,
1993, En Banc [Davide, Jr.])

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-in-Charge of the EID is legally unassailable. (Matibag v. Benipayo,
380 SCRA 49, April 2, 2002, En Banc [Carpio])

292. Is a government employee who has been ordered arrested and

detained for a non-bailable offense and for which he was suspended for his
inability to report for work until the termination of his case, still required to
file a formal application for leave of absence to ensure his reinstatement
upon his acquittal and thus protect his security of tenure? Concomitantly,
will his prolonged absence from office for more than one (1) year
automatically justify his being dropped from the rolls without prior notice
despite his being allegedly placed under suspension by his employer until
the termination of his case, which finally resulted in his acquittal for lack of
evidence?

EUSEBIA R. GALZOTE was employed as a lowly clerk in the service of

the City Government of Makati City. With her meager income she was the
lone provider for her children. But her simple life was disrupted abruptly
when she was arrested without warrant and detained for more than three (3)
years for a crime she did not commit. Throughout her ordeal she trusted the
city government that the suspension imposed on her was only until the final
disposition of her case. As she drew near her vindication she never did
expect the worst to come to her. On the third year of her detention the city
government lifted her suspension, dropped her from the rolls without prior
notice and without her knowledge, much less gave her an opportunity to
forthwith correct the omission of an application for leave of absence
belatedly laid on her.

Upon her acquittal for lack of evidence and her release from detention
she was denied reinstatement to her position. She was forced to seek
recourse in the Civil Service Commission which ordered her immediate
reinstatement with back wages from 19 October 1994, the date when she
presented herself for reassumption of duties but was turned back by the city
government, up to the time of her actual reinstatement.
 Xxx

Plainly, the case of petitioner City Government of Makati City revolves

around a rotunda of doubt, a dilemma concerning the legal status and
implications of its suspension of private respondent Eusebia R. Galzote and
the automatic leave of absence espoused by the Civil Service Commission.
Against this concern is the punctilious adherence to technicality, the
requirement that private respondent should have filed an application for
leave of absence in proper form. The instant case is therefore a dispute
between, at its worst, private 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.
Xxx

Xxx
 The holding of the Civil Service Commission that private respondent
was on automatic leave of absence during the period of her detention must
be sustained. The CSC is the constitutionally mandated central personnel
agency of the Government tasked to establish a career service and adopt
measures to promote morale, efficiency, integrity, responsiveness,
progressiveness and courtesy in the civil service (Const., Art. IX-B, Sec. 3)
and strengthen the merit and rewards system, integrate all human
resources development programs for all levels and ranks, and institutionalize
a management climate conducive to public accountability. (Ibid.) Besides,
the Administrative Code of 1987 further empowers the CSC to prescribe,
amend, and enforce rules and regulations for carrying into effect the
provisions of the Civil Service Law and other pertinent laws, (Bk. V, I (A), Ch.
3, Sec. 12) and for matters concerning leaves of absence, the Code
specifically vests the CSC to ordain

Sec. 60. Leave of absence. Officers and employees in the Civil Service
shall be entitled to leave of absence, with or without pay, as may be
provided by law and the rules and regulations of the Civil Service
Commission in the interest of the service.

Pursuant thereto the CSC promulgated Resolution No. 91-1631 dated

27 December 1991 entitled Rules Implementing Book V of Executive Order
No. 292 and Other Pertinent Civil Service Laws which it has several times
amended through memorandum circulars. It devotes Rule XVI to leaves of
absence. Petitioner City Government relies upon Secs. 20 and 35 to debunk
the CSC ruling of an automatic leave of absence. Significantly, these
provisions have been amended so that Sec. 20 of the Civil Service Rules is
now Sec. 52 of Rule XVI, on Leave of Absence, of Resolution No. 91-1631
dated 27 December 1991 as amended by CSC MC No. 41, s. 1998, and Sec.
35 is now Sec. 63 as amended by CSC MC Nos. 41, s. 1998 and 14, s. 1999.

Xxx

As a general rule, Secs. 20 and 52, as well as Secs. 35 and 63, require
an approved leave of absence to avoid being an AWOL. However, these
provisions cannot be interpreted as exclusive and referring only to one mode
of securing the approval of a leave of absence which would require an
employee to apply for it, formalities and all, before exceeding thirty (30)
days of absence in order to avoid from being dropped from the rolls. There
are, after all, other means of seeking and granting an approved leave of
absence, one of which is the CSC recognized rule of automatic leave of
absence under specified circumstances. X x x

Xxx

As properly noted, the CSC was only interpreting its own rules on leave
of absence and not a statutory provision (As a matter of fact, Sec. 60 of the
Administrative Code does not provide for any rule on leave of absence other
than that civil servants are entitled to leave of absence) in coming up with
this uniform rule. Undoubtedly, the CSC like any other agency has the power
to interpret its own rules and any phrase contained in them (Norwegian
Nitrogen Products Co. v. United States of America, 288 SCRA 294, 325, 77
Led. 796, 812 [1933]) with its interpretation significantly becoming part of
the rules themselves. X x x

Xxx

Under RA 6656 (An Act to Protect the Security of Tenure of Civil Service
Officers and Employees in the Implementation of Government
Reorganization) and RA 7160 (The Local Government Code of 1991), civil
servants who are found illegally dismissed or retrenched are entitled to full
pay for the period of their separation.

Our final point. An efficient and honest bureaucracy is never

inconsistent with the emphasis on and the recognition of the basic rights and
privileges of our civil servants or, for that matter, the constitutional
mandates of the Civil Service Commission. In fact only from an enlightened
corps of government workers and an effective CSC grows the
professionalization of the bureaucracy. Indeed the government cannot be
left in the lurch; but neither could we decree that government personnel be
separated from their jobs indiscriminately regardless of fault. The fine line
between these concerns may be difficult to clearly draw but if we only
exerted extra effort to rebel against the allure of legal over-simplification,
justice would have been done where it is truly due. (City Government of
Makati City v. Civil Service Commission, 376 SCRA 248, Feb. 6, 2002,
En Banc [Bellosillo])

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

Held: Abandonment of an office is the voluntary relinquishment of an office

by the holder, with the intention of terminating his possession and control
thereof (Sangguniang Bayan of San Andres, Catanduanes v. Court of
Appeals, 284 SCRA 276 [1998]). In order to constitute abandonment of an
office, it must be total and under such circumstances as clearly to indicate
an absolute relinquishment (Airoso v. De Guzman, 49 Phil. 371 [1926]).
There must be a complete abandonment of duties of such continuance that
the law will infer a relinquishment (67 C.J.S. Officers Sec. 100, citing Cosby v.
Moore, 65 So.2d 178, 259 Ala. 41). Abandonment of duties is a voluntary act
(Ibid., citing Steingruber v. San Antonio, Comm. App., 220 S.W. 77, 78); it
springs from and is accompanied by deliberation and freedom of choice
(Jorge v. Mayor, 10 SCRA 331 [1964], citing Teves v. Sindiong, 81 Ohil. 658
[1948]). There are, therefore, two essential elements of abandonment: first,
an intention to abandon and second, an overt or external act by which the
intention is carried into effect (67 C.J.S. Officers Sec. 100, citing Rainwater v.
State ex rel. Strickland, 178 So. 484, 237 Ala. 482, 121 A.L.R. 981)

Generally speaking, a person holding a public office may abandon such office
by nonuser or acquiescence (Ibid., citing Herbert v. State Oil and Gas Bd.,
250 So.2d 597, 287 Ala. 221). Non-user refers to a neglect to use a right or
privilege or to exercise an office (Sangguniang Bayan of San Andres,
Catanduanes v. Court of Appeals, supra). However, nonperformance of the
duties of an office does not constitute abandonment where such
nonperformance results from temporary disability or from involuntary failure
to perform (67 C.J.S. Sec. 100, citing Doris v. Heroux, 47 A.2d 633, 71 R.I.
491). Abandonment may also result from an acquiescence by the officer in
his wrongful removal or discharge, for instance, after a summary removal, an
unreasonable delay by an officer illegally removed in taking steps to
vindicate his rights may constitute an abandonment of the office (Ibid., citing
Nicholas v. U.S., Ct. Cl., 42 S.Ct. 7, 257 U.S. 71, 66 L. Ed. 133). Where, while
desiring and intending to hold the office, and with no willful desire or
intention to abandon it, the public officer vacates it in deference to the
requirements of a statute which is afterwards declared unconstitutional, such
a surrender will not be deemed an abandonment and the officer may recover
the effect. (Mechem, A Treatise on the Law of Public Offices and Officers,
1890 edition, p. 279, citing Turnipseed v. Hudson, 50 Miss. 429, 19 Am. Rep.
15) (Canonizado v. Aguirre, 351 SCRA 659, 665-668, Feb. 15, 2001,
En Banc [Gonzaga-Reyes])
294. By accepting another position in the government during the pendency
of a case brought precisely to assail the constitutionality of his removal -
may a person be deemed to have abandoned his claim for reinstatement?

Held: Although petitioners do not deny the appointment of Canonizado as

Inspector General, they maintain that 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 Non-compliance with the procedures/criteria provided in the agencys Merit

Promotion Plan;
f Failure to pass through the agencys Selection/Promotion Board;
g Violation of the existing collective agreement between management and
employees relative to promotion; or
h Violation of other existing civil service law, rules and regulations.

Accordingly, the appointments of the private respondents may only be

recalled on the above-cited grounds. And yet, the only reason advanced by
the petitioner to justify the recall was that these were midnight
appointments. The CSC correctly ruled, however, that the constitutional
prohibition on so-called midnight appointments, specifically those made
within two (2) months immediately prior to the next presidential elections,
applies only to the President or Acting President. (De Rama v. Court of
Appeals, 353 SCRA 94, Feb. 28, 2001, En Banc [Ynares-Santiago])

297. When may unconsented transfers be considered anathema to security

of tenure?

Held: As held in Sta. Maria v. Lopez (31 SCRA 637, 653 citing Ibanez v.
Commission on Elections, L-26558, April 27, 1967, 19 SCRA 1002, 1012 and
Section 12 of the Tax Code).

"x x x the rule that outlaws unconsented transfers as anathema to security

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

298. Discuss Abolition of Office?

Held: The creation and abolition of public offices is primarily a legislative

function. It is acknowledged that Congress may abolish any office it creates
without impairing the officer's right to continue in the position held and that
such power may be exercised for various reasons, such as the lack of funds
or in the interest of economy. However, in order for the abolition to be valid,
it must be made in good faith, not for political or personal reasons, or in
order to circumvent the constitutional security of tenure of civil service
employees.

An abolition of office connotes an intention to do away with such office

wholly and permanently, as the word "abolished" denotes. Where one office
is abolished and replaced with another office vested with similar functions,
the abolition is a legal nullity. Thus, in U.P. Board of Regents v. Rasul (200
SCRA 685 [1991]) we said:

It is true that a valid and bona fide abolition of an office denies to the
incumbent the right to security of tenure (De la Llana v. Alba, 112 SCRA 294
[1982]). However, in this case, the renaming and restructuring of the PGH
and its component units cannot give rise to a valid and bona fide abolition of
the position of PGH Director. This is because where the abolished office and
the offices created in its place have similar functions, the abolition lacks
good faith (Jose L. Guerrero v. Hon. Antonio V. Arizabal, G.R. No. 81928, June
4, 1990, 186 SCRA 108 [1990]). We hereby apply the principle enunciated in
Cezar Z. Dario v. Hon. Salvador M. Mison (176 SCRA 84 [1989]) that abolition
which merely changes the nomenclature of positions is invalid and does not
result in the removal of the incumbent.

The above notwithstanding, and assuming that the abolition of the position
of the PGH Director and the creation of a UP-PGH Medical Center Director are
valid, the removal of the incumbent is still not justified for the reason that
the duties and functions of the two positions are basically the same.
This was also our ruling in Guerrero v. Arizabal (186 SCRA 108 [1990]),
wherein we declared that the substantial identity in the functions between
the two offices was indicia of bad faith in the removal of petitioner pursuant
to a reorganization. (Alexis C. Canonizado, et al. v. Hon. Alexander P.
Aguirre, et al., G.R. No. 133132, Jan. 25, 2000, En Banc [Gonzaga-
Reyes])

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

Held: 1. Reorganization takes place when there is an alteration of the

existing structure of government offices or units therein, including the lines
of control, authority and responsibility between them. It involves a reduction
of personnel, consolidation of offices, or abolition thereof by reason of
economy or redundancy of functions. Naturally, it may result in the loss of
one's position through removal or abolition of an office. However, for a
reorganization to be valid, it must also pass the test of good faith, laid down
in Dario v. Mison (176 SCRA 84 [1989]):

x x x As a general rule, a reorganization is carried out in "good faith" if it is

for the purpose of economy or to make bureaucracy more efficient. In that
event, no dismissal (in case of dismissal) or separation actually occurs
because the position itself ceases to exist. And in that case, security of
tenure would not be a Chinese wall. Be that as it may, if the "abolition"
which is nothing else but a separation or removal, is done for political
reasons or purposely to defeat security of tenure, or otherwise not in good
faith, no valid "abolition" takes place and whatever "abolition" is done, is
void ab initio. There is an invalid "abolition" as where there is merely a
change of nomenclature of positions, or where claims of economy are belied
by the existence of ample funds.
(Alexis C. Canonizado, et al. v. Hon. Alexander P. Aguirre, et al., G.R.
No. 133132, Jan. 25, 2000, En Banc [Gonzaga-Reyes])

2. While the 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 pre-election activities could be performed by the
duly constituted authorities in a realistic and orderly manner one which is
not indifferent and so far removed from the pressing order of the day and the
prevalent circumstances of the times. (Akbayan-Youth v. COMELEC, 355
SCRA 318, Mar. 26, 2001, En Banc [Buena])

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

Answer: The Lone Candidate Law is Republic Act No. 8295, enacted on
June 6, 1997. Section 2 thereof provides that Upon the expiration of the
deadline for the filing of the certificate of candidacy in a special election
called to fill a vacancy in an elective position other than for President and
 Vice-President, when there is only one (1) qualified candidate for such
position, the lone candidate shall be proclaimed elected to the position by
proper proclaiming body of the Commission on Elections without holding the
special election upon certification by the Commission on Elections that he is
the only candidate for the office and is thereby deemed elected.

Section 3 thereof provides that the lone candidate so proclaimed shall

assume office not earlier than the scheduled election day, in the absence of
any lawful ground to deny due course or cancel the certificate of candidacy
in order to prevent such proclamation, as provided for under Sections 69 and
78 of Batas Pambansa Bilang 881 also known as the Omnibus Election Code.

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

Answer: Section 4 of the Lone Candidate Law provides that In addition to

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

a) Any elective official who has resigned from his office by accepting
an appointive office or for whatever reason which he previously occupied but
has caused to become vacant due to his resignation; and
b) Any person who, directly or indirectly, coerces, bribes, threatens,
harasses, intimidates or actually causes, inflicts or produces any violence,
injury, punishment, torture, damage, loss or disadvantage to any person or
persons aspiring to become a candidate or that of the immediate member of
his family, his honor or property that is meant to eliminate all other potential
candidate.

308. What is the purpose of the law in requiring the filing of certificate of
candidacy and in fixing the time limit therefor?

Held: The evident purpose of the law in requiring the filing of certificate of
candidacy and in fixing the time limit therefor are: (a) to enable the voters to
know, at least sixty days before the regular election, the candidates among
whom they are to make the choice, and (b) to avoid confusion and
inconvenience in the tabulation of the votes cast. For if the law did not
confine the choice or election by the voters to the duly registered
candidates, there might be as many persons voted for as there are voters,
and votes might be cast even for unknown or fictitious persons as a mark to
identify the votes in favor of a candidate for another office in the same
election. (Miranda v. Abaya, G.R. No. 136351, July 28, 1999)
309. May a disqualified candidate and whose certificate of candidacy was
denied due course and/or canceled by the Comelec be validly substituted?

Held: Even on the most basic and fundamental principles, it is readily

understood that the concept of a substitute presupposes the existence of the
person to be substituted, for how can a person take the place of somebody
who does not exist or who never was. The Court has no other choice but to
rule that in all instances enumerated in Section 77 of the Omnibus Election
Code, the existence of a valid certificate of candidacy seasonably filed is a
requisite sine qua non.

All told, a disqualified candidate may only be substituted if he had a valid

certificate of candidacy in the first place because, if the disqualified
candidate did not have a valid and seasonably filed certificate of candidacy,
he is and was not a candidate at all. If a person was not a candidate, he
cannot be substituted under Section 77 of the Code. (Miranda v. Abaya,
G.R. No. 136351, July 28, 1999, en Banc [Melo])

310. Should the votes cast for the substituted candidate be considered
votes for the substitute candidate?

Answer: Republic Act No. 9006, otherwise known as the Fair Election
Act, provides in Section 12 thereof: In case of valid substitutions after the
official ballots have been printed, the votes cast for the substituted
candidates shall be considered as stray votes but shall not invalidate the
whole ballot. For this purpose, the official ballots shall provide spaces where
the voters may write the name of the substitute candidates if they are voting
for the latter: Provided, however, That if the substitute candidate is of the
same family name, this provision shall not apply.

311. What is the effect of the filing of certificate of candidacy by elective

officials?

Answer: COMELEC Resolution No. 3636, promulgated March 1, 2001,

implementing the Fair Election Act (R.A. No. 9006) provides in Section 26
thereof: any elective official, whether national or local, who has filed a
certificate of candidacy for the same or any other office shall not be
considered resigned from his office.

Note that Section 67 of the Omnibus Election Code and the first proviso in
the third paragraph of Section 11 of Republic Act No. 8436 which modified
said Section 67, were expressly repealed and rendered ineffective,
respectively, by Section 14 (Repealing Clause) of The Fair Election Act (R.A.
No. 9006).
312. What kind of material misrepresentation is contemplated by Section
78 of the Omnibus Election Code as a ground for disqualification of a
candidate? Does it include the use of surname?

Held: Therefore, it may be concluded that the material misrepresentation

contemplated by Section 78 of the (Omnibus Election) Code refers to
qualifications for elective office. This conclusion is strengthened by the fact
that the consequences imposed upon a candidate guilty of having made a
false representation in his certificate of candidacy are grave to prevent the
candidate from running or, if elected, from serving, or to prosecute him for
violation of the election laws. It could not have been the intention of the law
to deprive a person of such a basic and substantial political right to be voted
for a public office upon just any innocuous mistake.

[A]side from the requirement of materiality, a false representation under

Section 78 must consist of a deliberate attempt to mislead, misinform, or
hide a fact which would otherwise render a candidate ineligible. In other
words, it must be made with an intention to deceive the electorate as to
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 pre-proclamation
controversies which can no longer be entertained after the winning
candidates have been proclaimed. Regarding the petition to declare a failure
of election, we held that the destruction and loss of copies of election returns
intended for the municipal board of canvassers on account of violence is not
one of the causes that would warrant the declaration of failure of election.
The reason is that voting actually took place as scheduled and other valid
election returns still existed. Moreover, the destruction or loss did not affect
the result of the election. We also declared that there is failure of elections
only when the will of the electorate has been muted and cannot be
ascertained. If the will of the people is determinable, the same must as far
as possible be respected.

Xxx

In Loong v. COMELEC (257 SCRA 1 [1996]), the petition for annulment of

election results or to declare failure of elections in Parang, Sulu, on the
ground of statistical improbability and massive fraud was granted by the
COMELEC. Even before the technical examination of election documents was
conducted, the Comelec already observed badges of fraud just by looking at
the election results in Parang. Nevertheless, the Comelec dismissed the
petition for annulment of election results or to declare failure of elections in
the municipalities of Tapul, Panglima Estino, Pata, Siasi and Kalinggalang
Calauag. The COMELEC dismissed the latter action on ground of
untimeliness of the petition, despite a finding that the same badges of fraud
evident from the results of the election based on the certificates of canvass
of votes in Parang, are also evident in the election results of the five
mentioned municipalities. We ruled that Comelec committed grave abuse of
discretion in dismissing the petition as there is no law which provides for a
reglementary period to file annulment of elections when there is yet no
proclamation. The election resulted in a failure to elect on account of fraud.
Accordingly, we ordered the Comelec to reinstate the aforesaid petition.
Those circumstances, however, are not present in this case, so that reliance
on Loong by petitioner Banaga is misplaced. (Banaga, Jr. v. COMELEC,
336 SCRA 701, July 31, 2000, En Banc [Quisumbing])

316. What acts of a Division of the COMELEC may be subject of a motion for
reconsideration of the COMELEC en banc?

Held: Section 5, Rule 19 of the COMELEC Rules of Procedure, provides:

SEC. 5. How Motion for Reconsideration Disposed of. - Upon the filing of a
motion to reconsider a decision, resolution, order or ruling of a Division, the
Clerk of Court concerned shall, within twenty-four (24) hours from the filing
thereof, notify the presiding Commissioner. The latter shall within two (2)
days thereafter certify the case to the Commission en banc.

Under the above-quoted rule, the acts of a Division that are subject of
a motion for reconsideration must have a character of finality before the
same can be elevated to the COMELEC en banc. The elementary rule is that
an order is final in nature if it completely disposes of the entire case. But if
there is something more to be done in the case after its issuance, that order
is interlocutory.

As correctly pointed out by public respondent in its assailed order of

November 29, 1999, the October 11, 1999 did not dispose of the case
completely as there is something more to be done which is to decide the
election protest. As such, it is the herein public respondent (Second Division
of the COMELEC) which issued the interlocutory order of October 11, 1999
that should resolve 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? What Court
has jurisdiction over pre-proclamation cases?

Held: As a general rule, candidates and registered political parties involved

in an election are allowed to file pre-proclamation cases before the Comelec.
Pre-proclamation cases refer to any question pertaining to or affecting the
proceedings of the board of canvassers which may be raised by any
candidate or by any registered political party or coalition of political parties
before the board or directly with the Commission, or any matter raised under
Sections 233, 234, 235 and 236 in relation to the preparation, transmission,
receipt, custody and appreciation of election returns (Section 241, Omnibus
Election Code). The Comelec has exclusive jurisdiction over all pre-
proclamation controversies (Section 242, supra). As an exception, however,
to the general rule, Section 15 of Republic Act 7166 prohibits candidates in
the presidential, vice-presidential, senatorial and congressional elections
from filing pre-proclamation cases. It states:

Sec. 15. Pre-Proclamation Cases Not Allowed in Elections for President,

Vice-President, Senator, and Members of the House of Representatives. -
For purposes of the elections for President, Vice-President, Senator and
Member of the House of Representatives, no pre-proclamation cases shall be
allowed on matters relating to the preparation, transmission, receipt, custody
and appreciation of election returns or the certificates of canvass, as the
case may be. However, this does not preclude the authority of the
appropriate canvassing body motu proprio or upon written complaint of an
interested person to correct manifest errors in the certificate of canvass or
election returns before it.

The prohibition aims to avoid delay in the proclamation of the winner in the
election, which delay might result in a vacuum in these sensitive posts. The
law, nonetheless, provides an exception to the exception. The second
sentence of Section 15 allows the filing of petitions for correction of manifest
errors in the certificate of canvass or election returns even in elections for
president, vice-president and members of the House of Representatives for
the simple reason that the correction of manifest error will not prolong the
process of canvassing nor delay the proclamation of the winner in the
election. The rule is consistent with and complements the authority of the
Comelec under the Constitution to "enforce and administer all laws and
regulations relative to the conduct of an election, plebiscite, initiative,
referendum and recall" (Section 2[1], Article IX-C, 1987 Constitution) and its
power to "decide, except those involving the right to vote, all questions
affecting elections." (Section 2[3], Article IX-C, supra) (Federico S.
Sandoval v. COMELEC, G.R. No. 133842, Jan. 26, 2000 [Puno])

321. Who has authority to rule on petitions for correction of manifest error
in the certificate of canvass or election returns?

Held: The authority to rule on petitions for correction of manifest error is

vested in the Comelec en banc. Section 7 of Rule 27 of the 1993 COMELEC
Rules of Procedure (took effect on February 15, 1993) provides that if the
error is discovered before proclamation, the board of canvassers may motu
proprio, or upon verified petition by any candidate, political party,
organization or coalition of political parties, after due notice and hearing,
correct the errors committed. The aggrieved party may appeal the decision
of the board to the Commission and said appeal shall be heard and decided
by the Commission en banc. Section 5, however, of the same rule states
that a petition for correction of manifest error may be filed directly with the
Commission en banc provided that such errors could not have been
discovered during the canvassing despite the exercise of due diligence and
proclamation of the winning candidate had already been made. (Federico
S. Sandoval v. COMELEC, G.R. No. 133842, Jan. 26, 2000 [Puno])

322. Distinguish Election Protest from Petition for Quo Warranto.

Held: In Samad v. COMELEC, we explained that a petition for quo warranto

under the Omnibus Election Code raises in issue the disloyalty or ineligibility
of the winning candidate. It is a proceeding to unseat the respondent from
office but not necessarily to install the petitioner in his place. An election
protest is a contest between the defeated and winning candidates on the
ground of frauds or irregularities in the casting and counting of the ballots, or
in the preparation of the returns. It raises the question of who actually
obtained the plurality of the legal votes and therefore is entitled to hold the
office. (Dumayas, Jr. v. COMELEC, G.R. Nos. 141952-53, April 20,
2001, En Banc [Quisumbing])

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

Held: Under the Comelec Rules of Procedure, the protestee may incorporate
in his answer a counter-protest. It has been said that a counter-protest is
tantamount to a counterclaim in a civil action and may be presented as a
part of the answer within the time he is required to answer the protest, i.e.,
within five (5) days upon receipt of the protest, unless a motion for extension
is granted, in which case it must be filed before the expiration of the
extended time.

As early as in the case of Arrieta v. Rodriguez (57 Phil. 717), the SC had
firmly settled the rule that the counter-protest must be filed within the period
provided by law, otherwise, the forum loses its jurisdiction to entertain the
belatedly filed counter-protest. (Kho v. COMELEC, 279 SCRA 463, Sept.
25, 1997, En Banc [Torres])

324. What is the effect of death of a party in an election protest? Should it

warrant the dismissal of the protest?

Held: An election protest involves both the private interests of the rival
candidates and the public interest in the final determination of the real
choice of the electorate, and for this reason, an election contest necessarily
survives the death of the protestant or the protestee. It is true that a public
office is personal to the public officer and is not a property transmissible to
his heirs upon death, thus, upon the death of the incumbent, no heir of his
may be allowed to continue holding his office in his place. But while the right
to a public office is personal and exclusive to the public officer, an election
protest is not purely personal and exclusive to the protestant or to the
protestee such that after the death of either would oust the court of all
authority to continue the protest proceedings. An election contest, after all,
involves not merely conflicting private aspirations but is imbued with
paramount public interests. The death of the protestant neither constitutes a
ground for the dismissal of the contest nor ousts the trial court of its
jurisdiction to decide the election contest. (De Castro v. COMELEC, 267
SCRA 806, Feb. 7, 1997)

325. Does the fact that one or a few candidates in an election got zero
votes in one or a few precincts adequately support a finding that the election
returns are statistically improbable?

Held: From experiences in past elections, it is possible for one candidate or

even a few candidates to get zero votes in one or a few precincts.

Standing alone and without more, the bare fact that a candidate for public
office received zero votes in one or two precincts can not adequately support
a finding that the subject election returns are statistically improbable. A no-
vote for a particular candidate in election returns is but one strand in the
web of circumstantial evidence that those election returns were prepared
under duress, force and intimidation. In the case of Una Kibad v. Comelec
(23 SCRA 588 [1968]), the SC warned that the doctrine of statistical
improbability must be viewed restrictively, the utmost care being taken lest
in penalizing the fraudulent and corrupt practices, innocent voters become
disenfranchised, a result which hardly commends itself. Moreover, the
doctrine of statistical improbability involves a question of fact and a more
prudential approach prohibits its determination ex parte. (Arthur V. Velayo
v. COMELEC, G.R. No. 135613, March 9, 2000, En Banc [Puno])

326. What Court has jurisdiction over election protests and quo warranto
proceedings involving Sangguniang Kabataan (SK) elections?

Held: Any contest relating to the election of members of the Sangguniang

Kabataan (including the chairman) whether pertaining to their eligibility or
the manner of their election is cognizable by MTCs, MCTCs, and MeTCs.
Section 6 of Comelec Resolution No. 2824 which provides that cases
involving the eligibility or qualification of SK candidates shall be decided by
the City/Municipal Election Officer whose decision shall be final, applies only
to proceedings before the election. Before proclamation, cases concerning
eligibility of SK officers and members are cognizable by the Election Officer.
But after the election and proclamation, the same cases become quo
warranto cases cognizable by MTCs, MCTCs, and MeTCs. The distinction is
based on the principle that it is the proclamation which marks off the
jurisdiction of the courts from the jurisdiction of election officials.

The case of Jose M. Mercado v. Board of Election Supervisors (243 SCRA 423,
G.R. No. 109713, April 6, 1995), in which this Court ruled that election
protests involving SK elections are to be determined by the Board of Election
Supervisors was decided under the aegis of Comelec Resolution No. 2499,
which took effect on August 27, 1992. However, Comelec Resolution No.
2824, which took effect on February 6, 1996 and was passed pursuant to R.A.
7808, in relation to Arts. 252-253 of the Omnibus Election Code, has since
transferred the cognizance of such cases from the Board of Election
Supervisors to the MTCs, MCTCs and MeTCs. Thus, the doctrine of Mercado is
no longer controlling. (Francis King L. Marquez v. COMELEC, G.R. No.
127318, Aug. 25, 1999, En Banc [Purisima])

327. What acts of a Division of the COMELEC may be subject of a motion for
reconsideration of the COMELEC en banc?

Held: Section 5, Rule 19 of the COMELEC Rules of Procedure, provides:

SEC. 5. How Motion for Reconsideration Disposed of. - Upon the filing of a
motion to reconsider a decision, resolution, order or ruling of a Division, the
Clerk of Court concerned shall, within twenty-four (24) hours from the filing
thereof, notify the presiding Commissioner. The latter shall within two (2)
days thereafter certify the case to the Commission en banc.

Under the above-quoted rule, the acts of a Division that are subject of
a motion for reconsideration must have a character of finality before the
same can be elevated to the COMELEC en banc. The elementary rule is that
an order is final in nature if it completely disposes of the entire case. But if
there is something more to be done in the case after its issuance, that order
is interlocutory.

As correctly pointed out by public respondent in its assailed order of

November 29, 1999, the October 11, 1999 did not dispose of the case
completely as there is something more to be done which is to decide the
election protest. As such, it is the herein public respondent (Second Division
of the COMELEC) which issued the interlocutory order of October 11, 1999
that should resolve 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, 1st Div. [Puno])

331. Discuss the concept of local autonomy.

Held: Autonomy is either decentralization of administration or

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

Decentralization of power, on the other hand, involves an abdication of

political power in favor of local government units declared autonomous. In
that case, the autonomous government is free to chart its own destiny and
shape its own future with minimum intervention from central authorities.
According to a constitutional author, decentralization of power amounts to
self-immolation, since in that event, the autonomous government becomes
accountable not to the central authorities but to its constituency. (Limbona
v. Mangelin, 170 SCRA 786, Feb. 28, 1989, En Banc [Sarmiento])

332. What kind of local autonomy is contemplated by the Constitution?

What about the kind of autonomy contemplated insofar as the autonomous
regions are concerned?

Held: 1. The principle of local autonomy under the 1987 Constitution

simply means decentralization. It does not make local governments
sovereign within the state or an imperium in imperio. Remaining to be an
intra sovereign subdivision of one sovereign nation, but not intended,
however, to be an imperium in imperio, the local government unit is
autonomous in the sense that it is given more powers, authority,
responsibilities and resources. Power which used to be highly centralized in
Manila, is thereby deconcentrated, enabling especially the peripheral local
government units to develop not only at their own pace and discretion but
also with their own resources and assets. (Alvarez v. Guingona, Jr., 252
SCRA 695, Jan. 31, 1996, En Banc [Hermosisima])

2. The constitutional guarantee of local autonomy in the Constitution refers

to the administrative autonomy of local government units or, cast in more
technical language, the decentralization of government authority.

On the other hand, the creation of autonomous regions in Muslim Mindanao

and the Cordilleras, which is peculiar to the 1987 Constitution, contemplates
the grant of political autonomy and not just administrative autonomy to
these regions. Thus, the provision in the Constitution for an autonomous
regional government with a basic structure consisting of an executive
department and a legislative assembly and special courts with personal,
family and property law jurisdiction in each of the autonomous regions.
(Cordillera Broad Coalition v. COA, 181 SCRA 495, Jan. 29, 1990, En
Banc [Cortes])

333. Whether or not the Internal Revenue allotments (IRAs) are to be

included in the computation of the average annual income of a municipality
for purposes of its conversion into an independent component city?

Held: Yes. The IRAs are items of income because they form part of the
gross accretion of the funds of the local government unit. The IRAs regularly
and automatically accrue to the local treasury without need of any further
action on the part of the local government unit. They thus constitute income
which the local government can invariably rely upon as the source of much
needed funds.

Xxx

[T]o reiterate, IRAs are a regular, recurring item of income; nil is there a
basis, too, to classify the same as a special fund or transfer, since IRAs have
a technical definition and meaning all its own as used in the Local
Government Code that unequivocally makes it distinct from special funds or
transfers referred to when the Code speaks of funding support from the
national government, its instrumentalities and government-owned or
controlled corporations.

Thus, Department of Finance Order No. 35-93 correctly encapsulizes the full
import of the above disquisition when it defined ANNUAL INCOME to be
revenues and receipts realized by provinces, cities and municipalities from
regular sources of the Local General Fund including the internal revenue
allotment and other shares provided for in Sections 284, 290 and 291 of the
Code, but exclusive of non-recurring receipts, such as other national aids,
grants, financial assistance, loan proceeds, sales of fixed assets, and similar
others. Such order, constituting executive or contemporaneous
construction of a statute by an administrative agency charged with the task
of interpreting and applying the same, is entitled to full respect and should
be accorded great weight by the courts, unless such construction is clearly
shown to be in sharp conflict with the Constitution, the governing statute, or
other laws. (Alvarez v. Guingona, Jr., 252 SCRA 695, Jan. 31, 1996, En
Banc [Hermosisima, Jr., J.])

334. State the importance of drawing with precise strokes the territorial
boundaries of a local government unit.

Held: The importance of drawing with precise strokes the territorial

boundaries of a local unit of government cannot be overemphasized. The
boundaries must be clear for they define the limits of the territorial
jurisdiction of a local government unit. It can legitimately exercise powers of
government only within the limits of its territorial jurisdiction. Beyond these
limits, its acts are ultra vires. Needless to state, any uncertainty in the
boundaries of local government units will sow costly conflicts in the exercise
of governmental powers which ultimately will prejudice the 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. L-30456, July 30, 1982, 115 SCRA
540, 544-545), The only ground upon which a provincial board may declare
any municipal resolution, ordinance or order invalid is when such resolution,
ordinance, or order is beyond the powers conferred upon the council or
president making the same. A strictly legal question is before the provincial
board in its consideration of a municipal resolution, ordinance, or order. The
provincial 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 1995-1998 because he served the greater
portion of that term has no legal basis to support it; it disregards the second
requisite for the application of the disqualification, i.e., that he has fully
served three consecutive terms. The second sentence of the constitutional
provision under scrutiny states, "Voluntary renunciation of office for any
length of time shall not be considered as an interruption in the continuity of
service for the full term for which he was elected." The clear intent of the
framers of the Constitution to bar any attempt to circumvent the three-term
limit by a voluntary renunciation of office and at the same time respect the
people's choice and grant their elected official full service of a term is
evident in this provision. Voluntary renunciation of a term does not cancel
the renounced term in the computation of the three term limit; conversely,
involuntary severance from office for any length of time short of the full term
provided by law amounts to an interruption of continuity of service.
Lonzanida vacated his post a few months before the next mayoral elections,
not by voluntary renunciation but in compliance with the legal process of writ
of execution issued by the COMELEC to that effect. Such involuntary
severance from office is an interruption of continuity of service and thus,
Lonzanida did not fully serve the 1995-1998 mayoral term.

In sum, Lonzanida was not the duly elected mayor and that he did not hold
office for the full term; hence, his assumption of office from May 1995 to
March 1998 cannot be counted as a term for purposes of computing the
three term limit. (Lonzanida v. COMELEC, 311 SCRA 602, July 28,
1999, En Banc [Gonzaga-Reyes])

345. May the President validly withhold a portion of the internal revenue
allotments of Local Government Units legally due them by administrative
fiat?

Held: The Constitution vests the President with the power of supervision,
not control, over local government units (LGUs). Such power enables him to
see to it that LGUs and their officials execute their tasks in accordance with
law. While he may issue advisories and seek their cooperation in solving
economic difficulties, he cannot prevent them from performing their tasks
and using available resources to achieve their goals. He may not withhold or
alter any authority or power given them by the law. Thus, the withholding of
a portion of internal revenue allotments legally due them cannot be directed
by administrative fiat.

Xxx

Section 4 of AO 372 cannot x x x be upheld. A basic feature of local fiscal

autonomy is the automatic release of the shares of LGUs in the National
internal revenue. This is mandated by no less than the Constitution. The
Local Government Code (Sec. 286[a]) specifies further that the release shall
be made directly to the LGU concerned within five (5) days after every
quarter of the year and shall not be subject to any lien or holdback that
may be imposed by the national government for whatever purpose. As a
rule, the term shall is a word of command that must be given a compulsory
meaning. The provision is, therefore, imperative.

Section 4 of AO 372, however, orders the withholding, effective January 1,

1998, of 10 percent of the LGUs IRA pending the assessment and
evaluation by the Development Budget Coordinating Committee of the
emerging fiscal situation in the country. Such withholding clearly
contravenes the Constitution and the law. Although, temporary, it is
equivalent to a holdback, which means something held back or withheld.
Often temporarily. Hence, the temporary nature of the retention by the
national government does not matter. Any retention is prohibited.

In sum, while Section 1 of AO 372 may be upheld as an advisory effected in

times of national crisis, Section 4 thereof has no color of validity at all. The
latter provision effectively encroaches on the fiscal autonomy of local
governments. Concededly, the President was well-intentioned in issuing his
Order to withhold the LGUs IRA, but the rule of law requires that even the
best intentions must be carried out within the parameters of the Constitution
and the law. Verily, laudable purposes must be carried out by legal methods.
(Pimentel, Jr. v. Aguirre, G.R. No. 132988, 336 SCRA 201, July 19,
2000, En Banc [Panganiban])

346. What is meant by fiscal autonomy of Local Governments? Does it rule

out in any manner national government intervention by way of supervision in
order to ensure that local programs are consistent with national goals?

Held: Under existing law, local government units, in addition to having

administrative autonomy in the exercise of their functions, enjoy fiscal
autonomy as well. Fiscal autonomy means that local governments have the
power to create their own sources of revenue in addition to their equitable
share in the national taxes released by the national government, as well as
the power to allocate their resources in accordance with their own priorities.
It extends to the preparation of their budgets, and local officials in turn have
to work within the constraints thereof. They are not formulated at the
national level and imposed on local governments, whether they are relevant
to local needs and resources or not. Hence, the necessity of a balancing of
viewpoints and the harmonization of proposals from both local and national
officials, who in any case are partners in the attainment of national goals.

Local fiscal autonomy does not, however, rule out any manner of national
government intervention by way of supervision, in order to ensure that local
programs, fiscal and otherwise, are consistent with national goals.
Significantly, the President, by constitutional fiat, is the head of the economic
and planning agency of the government (Section 9, Article XII of the
Constitution), primarily responsible for formulating and implementing
continuing, coordinated and integrated social and economic policies, plans
and programs (Section 3, Chapter 1, Subtitle C, Title II, Book V, EO 292
[Administrative Code of 1987]) for the entire country. However, under the
Constitution, the formulation and the implementation of such policies and
programs are subject to consultations with the appropriate public agencies,
various private sectors, and local government units. The President cannot
do so unilaterally. (Pimentel, Jr. v. Aguirre, 336 SCRA 201, July 19,
2000, En Banc [Panganiban])

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

Held: x x x [T]he Local Government Code provides (Sec. 284. See also Art.
379 of the Rules and Regulations Implementing the Local Government Code
of 1991):

x x x [I]n the event the national government incurs an unmanaged public

sector deficit, the President of the Philippines is hereby authorized, upon the
recommendation of [the] Secretary of Finance, Secretary of the Interior and
Local Government and Secretary of Budget and Management, and subject to
consultation with the presiding officers of both Houses of Congress and the
presidents of the liga, to make the necessary adjustments in the internal
revenue allotment of local government units but in no case shall the
allotment be less than thirty percent (30%) of the collection of national
internal revenue taxes of the third fiscal year preceding the current fiscal
year x x x

There are therefore several requisites before the President may interfere in
local fiscal matters: (1) an unmanaged public sector deficit of the national
government; (2) consultations with the presiding officers of the Senate and
the House of Representatives and the presidents of the various local
leagues; and (3) the corresponding recommendation of the secretaries of the
Department of Finance, Interior and Local Government, and Budget and
Management. Furthermore, any adjustment in the allotment shall in no case
be less than thirty percent (30%) of the collection of national internal
revenue taxes of the third fiscal year preceding the current one. (Pimentel,
Jr. v. Aguirre, 336 SCRA 201, July 19, 2000, En Banc [Panganiban])

348. Distinguish an ordinance from a mere resolution.

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

law, but a resolution is merely a declaration of the sentiment or opinion of a
lawmaking body on a specific matter. An ordinance possesses a general and
permanent character, but a resolution is temporary in nature. Additionally,
the two are enacted differently a third reading is necessary for an
ordinance, but not for a resolution, unless decided otherwise by a majority of
all the Sanggunian members. (Municipality of Paranaque v. V.M. Realty
Corporation, 292 SCRA 678, July 20, 1998 [Panganiban])

349. On its first regular session, may the Sanggunian transact business
other than the matter of adopting or updating its existing rules or
procedure?

Held: We cannot infer the mandate of the (Local Government) Code that no
other business may be transacted on the first regular session except to take
up the matter of adopting or updating rules. All that the law requires is that
on the first regular session x x x the sanggunian concerned shall adopt or
update its existing rules or procedures. There is nothing in the language
thereof that restricts the matters to be taken up during the first regular
session merely to the adoption or updating of the house rules. If it were the
intent of Congress to limit the business of the local council to such matters,
then it would have done so in clear and unequivocal terms. But as it is, there
is no such intent.

Moreover, adopting or updating of house rules would necessarily entail work

beyond the day of the first regular session. Does this mean that prior
thereto, the local council's hands were tied and could not act on any other
matter? That would certainly be absurd for it would result in a hiatus and a
paralysis in the local legislature's work which could not have been intended
by the law. (Malonzo v. Zamora, 311 SCRA 224, July 27, 1999, En
Banc [Romero])

350. May an incumbent Vice-Governor, while concurrently the Acting

Governor, continue to preside over the sessions of the Sangguniang
Panlalawigan (SP)? If no, who may preside in the meantime?

Held: Being the acting governor, the Vice-governor cannot continue to

simultaneously exercise the duties of the latter office, since the nature of the
duties of the Provincial Governor calls for a full-time occupant to discharge
them. Such is not only consistent with but also appears to be the clear
rationale of the new (Local Government) Code wherein the policy of
performing dual functions in both offices has already been abandoned. To
repeat, the creation of a temporary vacancy in the office of the Governor
creates a corresponding vacancy in the office of the Vice-Governor whenever
the latter acts as Governor by virtue of such temporary vacancy. This event
constitutes an inability on the part of the regular presiding officer (Vice-
Governor) to preside during the SP sessions, which thus calls for the
operation of the remedy set in Article 49(b) of the Local Government Code
concerning the election of a temporary presiding officer. The continuity of
the Acting Governors (Vice-Governor) powers as presiding officer of the SP is
suspended so long as he is in such capacity. Under Section 49(b), in the
event of the inability of the regular presiding officer to preside at the
sanggunian session, the members present and constituting a quorum shall
elect from among themselves a temporary presiding officer. (Gamboa, Jr.
v. Aguirre, Jr., G.R. No. 134213, July 20, 1999, En Banc [Ynares-
Santiago])

351. What is recall?

Held: Recall is a mode of removal of a public officer by the people before

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

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

Held: Former Senator Aquilino Pimentel, Jr., a major author of the subject
law in his book The Local Government Code of 1991: The Key to National
Development, stressed the same reason why the substantive content of a
vote of lack of confidence is beyond any inquiry, thus:

There is only one ground for recall of local government officials: loss of
confidence. This means that the people may petition or the Preparatory
Recall Assembly may resolve to recall any local elective official without
specifying any particular ground except loss of confidence. There is no need
for them to bring up any charge of abuse or corruption against the local
elective officials who are subject of any recall petition.

In the case of Evardone v. Commission on Elections, et al., 204 SCRA 464,

472 (1991), the Court ruled that loss of confidence as a ground for recall is
a political question. In the words of the Court, 'whether or not the electorate
of the municipality of Sulat has lost confidence in the incumbent mayor is a
political question.
(Garcia v. COMELEC, 227 SCRA 108, Oct. 5, 1993, En Banc [Puno])

353. The members of the Preparatory Recall Assembly (PRA) of the province
of Bataan adopted a resolution calling for the recall of Governor Garcia. It
was admitted, however, by the proponents of the recall resolution that only
those members of the assembly inclined to agree were notified of the
meeting where said resolution was adopted as a matter of strategy and
security. They justified these selective notices on the ground that the law
(Local Government Code) does not specifically mandate the giving of notice.
Should this submission be sustained?
Held: We reject this submission of the respondents. The due process clause
of the Constitution requiring notice as an element of fairness is inviolable and
should always be considered part and parcel of every law in case of its
silence. The need for notice to all the members of the assembly is also
imperative for these members represent the different sectors of the
electorate of Bataan. To the extent that they are not notified of the meeting
of the assembly, to that extent is the sovereign voice of the people they
represent nullified. The resolution to recall should articulate the majority will
of the members of the assembly but the majority will can be genuinely
determined only after all the members of the assembly have been given a
fair opportunity to express the will of their constituents. Needless to stress,
the requirement of notice is mandatory for it is indispensable in determining
the collective wisdom of the members of the Preparatory Recall Assembly.
Its non-observance is fatal to the validity of the resolution to recall petitioner
Garcia as Governor of the province of Bataan. (Garcia v. COMELEC, G.R.
No. 111511, Sept. 21, 1993; 227 SCRA 100, Oct. 5, 1993, En Banc
[Puno]

354. The members of the Preparatory Recall Assembly (PRA) of Puerto

Princesa City met and adopted a resolution calling for the recall of
incumbent Mayor Dennis Victorino M. Socrates on the ground of loss of
confidence on July 2, 2002. Mayor Socrates argued that they have no
authority to adopt said Recall Resolution because a majority of PRA
members were seeking a new electoral mandate in the barangay elections
scheduled on July 15, 2002. Should his contention be sustained?

Held: This argument deserves scant consideration considering that when the
PRA members adopted the Recall Resolution their terms of office had not yet
expired. They were all de jure sangguniang barangay members with no legal
disqualification to participate in the recall assembly under Section 70 of the
Local Government Code. (Victorino Dennis M. Socrates v. The
Commission on Elections, G.R. No. 154512, Nov. 12, 2002, En Banc
[Carpio])

355. Whether or not an elective official who became City Mayor by legal
succession can be the subject of a recall election by virtue of a Preparatory
Recall Assembly Resolution which was passed or adopted when the said
elective official was still the Vice-Mayor.

Held: The specific purpose of the Preparatory Recall Assembly was to

remove Amelita S. Navarro as the elected Vice-Mayor of Santiago City since
PRA Resolution No. 1 dated July 12, 1999 expressly states that x x x it is
hereby resolved to invoke the rescission of the electoral mandate of the
incumbent City Vice-Mayor Amelita S. Navarro for loss of confidence through
a recall election to be set by the Commission on Election as provided for
under Section 71 of the Local Government Code of 1991. However, the said
PRA Resolution No. 1 is no longer applicable to her inasmuch as she had
already vacated the office of Vice-Mayor on October 11, 1999 when she
assumed the position of City Mayor of Santiago City.

Even if the Preparatory Recall Assembly were to reconvene to adopt

another resolution for the recall of Amelita Navarro, this time as Mayor of
Santiago City, the same would still not prosper in view of Section 74 (b) of
the Local Government Code of 1991 which provides that No recall shall take
place within one (1) year from the date of the 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, 3rd Div. [Vitug])

367. What acts of a Division of the COMELEC may be subject of a motion for
reconsideration of the COMELEC en banc?

Held: Section 5, Rule 19 of the COMELEC Rules of Procedure, provides:

SEC. 5. How Motion for Reconsideration Disposed of. - Upon the filing of a
motion to reconsider a decision, resolution, order or ruling of a Division, the
Clerk of Court concerned shall, within twenty-four (24) hours from the filing
thereof, notify the presiding Commissioner. The latter shall within two (2)
days thereafter certify the case to the Commission en banc.

Under the above-quoted rule, the acts of a Division that are subject of
a motion for reconsideration must have a character of finality before the
same can be elevated to the COMELEC en banc. The elementary rule is that
an order is final in nature if it completely disposes of the entire case. But if
there is something more to be done in the case after its issuance, that order
is interlocutory.

As correctly pointed out by public respondent in its assailed order of

November 29, 1999, the October 11, 1999 did not dispose of the case
completely as there is something more to be done which is to decide the
election protest. As such, it is the herein public respondent (Second Division
of the COMELEC) which issued the interlocutory order of October 11, 1999
that should resolve 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 by-laws shall govern other matters affecting
internal organization of the liga not otherwise provided for in the Local
Government Code provided that the constitution and by-laws shall be
suppletory to the provisions of Book III, Title VI of the Local Government Code
and shall always conform to the provisions of the Constitution and existing
laws (Sec. 507, Local Government Code).

Having in mind the foregoing principles, we rule that Memorandum

Circular No. 97-193 of the DILG insofar as it authorizes the filing a Petition for
Review of the BES with the regular courts in a post proclamation electoral
protest is of doubtful constitutionality. We agree with both the petitioner and
the Solicitor General that in authorizing the filing of the petition for review of
the decision of the BES with the regular courts, the DILG Secretary in effect
amended and modified the GUIDELINES promulgated by the National Liga
Board and adopted by the LIGA which provides that the decision of the BES
shall be subject to review by the National Liga Board. The amendment of the
GUIDELINES is more than an exercise of the power of supervision but is an
exercise of the power of control, which the President does not have over the
LIGA. Although the DILG is given the power to prescribe rules, regulations
and other issuances, the Administrative Code limits its authority to merely
monitoring compliance by local government units of such issuances (Taule
v. Santos, 200 SCRA 512, 523 [1991]). To monitor means to watch, observe
or check and is compatible with the power of supervision of the DILG
Secretary over local governments, which is limited to checking whether the
local government unit concerned or the officers thereof perform their duties
as per statutory enactments (Ibid.). Besides, any doubt as to the power of
the DILG Secretary to interfere with local affairs should be resolved in favor
of the greater autonomy of the local government (Ibid.)

The public respondent judge therefore committed grave abuse of

discretion amounting to lack or excess of jurisdiction in not dismissing the
respondents Petition for Review for failure to exhaust all administrative
remedies and for lack of jurisdiction. (Bito-Onon v. Fernandez, 350 SCRA
732, Jan. 31, 2001, 3rd Div. [Gonzaga-Reyes])

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
three-consecutive term limit fixed by law?

Held: After due deliberation, the Court voted 8 to 7 to DISMISS the petition.
VITUG, J., joined by YNARES-SANTIAGO, J., voted to dismiss the petition. He
contended that as revealed by the records of the Constitutional Commission,
the Constitution envisions a continuous and an uninterrupted service for
three full terms before the proscription applies. Therefore, not being a full
term, a recall term should not be counted or used as a basis for the
disqualification whether served prior (as in this case) or subsequent (as in
the Socrates case) to the nine-year, full three-term limit.

MENDOZA, J., in whose opinion QUISUMBING, J., joined, voted to dismiss the
petition on the ground that, in accordance with the ruling in Borja, Jr. v.
COMELEC, 295 SCRA 157 [1998]; Arcos v. COMELEC, G.R. No. 133639, Oct. 6,
1998 (res.); Lonzanida v. COMELEC, 311 SCRA 602 [1999]; and Adormeo v.
COMELEC, G.R. No. 147927, Feb. 4, 2002, a term during which succession to
a local elective office takes place or a recall election is held should not be
counted in determining whether an elective local official has served more
than three consecutive terms. He argued that the Constitution does not
prohibit elective local officials from serving for more than three consecutive
terms because, in fact, it excludes from the three-term limit interruptions in
the continuity of service, so long as such interruptions are not due to the
voluntary renunciation of the office by the incumbent. Hence, the period
from June 28, 1994 to June 30, 1995, during which respondent Leonardo B.
Roman served as governor of Bataan by virtue of a recall election held in
1993, should not be counted. Since on May 14, 2001 respondent had
previously served as governor of Bataan for only two consecutive terms
(1995-1998 and 1998-2001), his election on that day was actually only his
third term for the same position.

PANGANIBAN, J., joined by PUNO, J., also voted to dismiss the petition. He
argued that a recall term should not be considered as one full term, because
a contrary interpretation would in effect cut short the elected officials
service to less than nine years and shortchange his constituents. The desire
to prevent monopoly of political power should be balanced against the need
to uphold the voters obvious preference who, in the present case, is Roman
who received 97 percent of the votes cast. He explained that, in Socrates,
he also voted to affirm the clear choice of the electorate, because in a
democracy the people should, as much as legally possible, be governed by
leaders freely chosen by them in credible elections. He concluded that, in
election cases, when two conflicting legal positions are of almost equal
weight, the scales of justice should be tilted in favor of the peoples
overwhelming choice.

AZCUNA, J., joined by BELLOSILLO, J., also voted to dismiss, arguing that it is
clear from the constitutional provision that the disqualification applies only if
the terms are consecutive and the service is full and continuous. Hence,
service for less than a term, except only in case of voluntary renunciation,
should not count to disqualify an elective local official from running for the
same position. This case is different from Socrates, where the full three
consecutive terms had been continuously served so that disqualification had
clearly attached.

On the other hand, SANDOVAL-GUTIERREZ, J., with whom DAVIDE, C.J., and
AUSTRIA-MARTINEZ, CORONA, and CALLEJO, SR., JJ., concurred, holds the
view that the recall term served by respondent Roman, comprising the
period June 28, 1994 to June 30, 1995, should be considered as one term.
Since he thereafter served for two consecutive terms from 1995 to 1998 and
from 1998 to 2001, his election on May 14, 2001 was actually his fourth term
and contravenes Art. X, Sec. 8 of the Constitution. For this reason, she voted
to grant the petition and to declare respondents election on May 14, 2002 as
null and void.

CARPIO, J., joined by CARPI0-MORALES, J., also dissented and voted to grant
the petition. He held that a recall term constitutes one term and that to
totally ignore a recall term in determining the three-term limit would allow
local officials to serve for more than nine consecutive years contrary to the
manifest intent of the framers of the Constitution. He contended that
respondent Romans election in 2001 cannot exempt him from the three-
term limit imposed by the Constitution.

In his Separate Opinion, Justice Vitug voted to dismiss the petition on the
following considerations:

In order that the three-consecutive term limit can apply, two conditions
must concur, i.e., (1) that the elective local official concerned has been
elected for three consecutive terms to the same local government position,
and (2) that he has served three consecutive full terms, albeit a voluntary
renunciation of the office for any length of time shall not be deemed to be
an interruption in the continuity of the service for the full term for which he is
elected. The constitutional provision does not appear to be all that imprecise
for and in its application. Section 8, Article X, of the Constitution is explicit
that the term of office of elective local officials x x x shall be three years
which phrase is forthwith followed by its mandate that no such official shall
serve for more than three consecutive terms, and that [v]oluntary
renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he [is]
elected. The law evidently contemplates a continuous full three-year
term before the proscription can apply.
 The Constitutional Commission, in its deliberations, referred to a full
nine (9) years of service for each elective local government official in the
application of the prohibition, envisioning at the same time a continuous and
uninterrupted period of nine years by providing for only one exception, i.e.,
when an incumbent voluntarily gives up the office.

Xxx

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, 525-526
[1996]) in which we held that an elective local executive officer, who is
removed before the expiration of the term for which he was elected, is
disqualified from being a candidate for a local elective position under Section
40[b] of the Local Government Code.

Xxx

However, Reyes cannot be applied to this case because it appears that the
1992 decision of the Sangguniang Panlalawigan, finding respondent Sulong
guilty of dishonesty, falsification and malversation of public funds, has not
until now become final. X x x The filing of his motion for reconsideration
prevented the decision of Sangguniang Panlalawigan from becoming final.
 While R.A. No. 7160 on disciplinary actions is silent on the filing of a
motion for reconsideration, the same cannot be interpreted as a prohibition
against the filing of a motion for reconsideration. x x x.

There is thus no decision finding respondent guilty to speak of. As

Provincial Secretary of Zamboanga del Sur Wilfredo Cimafranca attested, the
Sangguniang Panlalawigan simply considered the matter as having become
moot and academic because it was overtaken by the local elections of May
[11], 1992.

Neither can the succession of the then vice-mayor of Lapuyan x x x

and the highest ranking municipal councilor of Lapuyan x x x to the offices of
mayor and vice-mayor, respectively, be considered proof that the decision in
AC No. 12-91 had become final because it appears to have been made
pursuant to Sec. 68 of the Local Government Code, which makes decisions in
administrative cases immediately executory.

Indeed, considering the failure of the Sangguniang Panlalawigan to

resolve 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, 1st Div. [Kapunan])

373. How is Section 45(b) of the Local Government Code to be interpreted?

What is the reason behind the right given to a political party to nominate a
replacement where a permanent vacancy occurs in the Sanggunian?

Held: What is crucial is the interpretation of Section 45(b) providing

that x x x only the nominee of the political party under which the
Sanggunian member concerned has been elected and whose elevation to the
position next higher in rank created the last vacancy in the Sanggunian shall
be appointed in the manner hereinabove provided. The appointee shall
come from the political party as that of the Sanggunian member who caused
the vacancy x x x.

The reason behind the right given to a political party to nominate a

replacement where a permanent vacancy occurs in the Sanggunian is to
maintain the party representation as willed by the people in the election
(Aquilino Pimentel, the Local Government Code of 1991, The Key to National
Development, p. 150).

With the elevation of petitioner Tamayo, who belonged to REFORMA-

LM, to the position of Vice-Mayor, a vacancy occurred in the Sanggunian that
should be filled up with someone who should belong to the political party of
petitioner Tamayo. Otherwise, REFORMA-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, 1st Div. [Kapunan])

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

Ans.: All governors, city and municipal mayors are prohibited

from practicing their profession or engaging in any occupation other than the
exercise of their functions as local chief executives. (Sec. 90[a], LGC)

Sanggunian members may practice their profession, engage in any

occupation, or teach in schools except during session hours. (Sec. 90[b],
LGC)
 Sanggunian members who are also members of the Bar shall not:

(a) Appear as counsel before any court in any civil case wherein a local
government unit or any office, agency, or instrumentality of the government
is the adverse party;
(b) Appear as counsel in any criminal case wherein an officer or
employee of the national or local government is accused of an offense
committed in relation to his office;
(c) Collect any fee for their appearance in administrative proceedings
involving the local government unit of which he is an official; and
(d) Use property and personnel of the government except when the
sanggunian member concerned is defending the interest of the Government.
(Sec. 90[b], LGC)

375. Whether or not the plebiscites scheduled for the creation of Barangays
Karangalan and Napico should be suspended or cancelled in view of the
pending boundary dispute between the two local governments.

Held: To begin with, we agree with the position of the COMELEC that Civil
Case No. 94-3006 involving the boundary dispute between the Municipality
of Cainta and the City of Pasig presents a prejudicial question which must
first be decided before the plebiscites for the creation of the proposed
barangays may be held.

Xxx

In the case at bar, while the City of Pasig vigorously claims that the areas
covered by the proposed Barangays Karangalan and Napico are within its
territory, it can not deny that portions of the same area are included in the
boundary dispute case pending before the Regional Trial Court of Antipolo.
Surely, whether the areas in controversy shall be decided as within the
territorial jurisdiction of the Municipality of Cainta or the City of Pasig has
material bearing to the creation of the proposed Barangays Karangalan and
Napico. Indeed, a requisite for the creation of a barangay is for its territorial
jurisdiction to be properly identified by metes and bounds or by more or less
permanent natural boundaries (Sec. 386[b], R.A. No. 7160). Precisely
because territorial jurisdiction is an issue raised in the pending civil case,
until and unless such issue is resolved with finality, to define the territorial
jurisdiction of the proposed barangays would only be an exercise in futility.
Not only that, we would be paving the way for potentially ultra vires acts of
such barangays. X x x

Moreover, considering the expenses entailed in the holding of plebiscites, it

is far more prudent to hold in abeyance the conduct of the same, pending
final determination of whether or not the entire area of the proposed
barangays are truly within the territorial jurisdiction of the City of Pasig.

Neither do we agree that merely because a plebiscite had already been held
in the case of the proposed Barangay Napico, the petition of the Municipality
of Cainta has already been rendered moot and academic. The issue raised
by the Municipality of Cainta in its petition before the COMELEC against the
holding of the plebiscite for the creation of Barangay Napico are still pending
determination before the Antipolo Regional Trial Court.

Xxx

Therefore, the plebiscite on the creation of Barangay Karangalan should be

held in abeyance pending final resolution of the boundary dispute between
the City of Pasig and the Municipality of Cainta by the Regional Trial Court of
Antipolo City. In the same vein, the plebiscite held on March 15, 1997 to
ratify the creation of Barangay Napico, Pasig City, should be annulled and set
aside. (City of Pasig v. COMELEC, 314 SCRA 179, Sept. 10, 1999, En
Banc [Ynares-Santiago])

PUBLIC INTERNATIONAL LAW

376. Discuss the contemporary view on the rightful place of an Individual in

International Law? Does he remain a mere object of International Law, or
is he now a proper subject of International Law?

Held: Then came the long and still ongoing debate on what should be
the subject of international law. The 20 th 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 sub-doctrine that an
individuals right in international law is a near cipher. Translated in
extradition law, the view that once commanded a consensus is that since a
fugitive is a mere object and not a subject of international law, he is bereft of
rights. An extraditee, so it was held, is a mere object transported from one
state to the other as an exercise of the sovereign will of the two states
involved. (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, 2nd 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, 1 st Div.
[Motion for Reconsideration])

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

courts?

Held: Under the doctrine of incorporation, rules of international law form

part of the law of the land and no further legislative action is needed to make
such rules applicable in the domestic sphere.

The doctrine of incorporation is applied whenever municipal tribunals (or

local courts) are confronted with situations in which there appears to be a
conflict between a rule of international law and the provisions of the
Constitution or statute of the local state. Efforts should first be exerted to
harmonize them, so as to give effect to both since it is to be presumed that
municipal law was enacted with proper regard for the generally accepted
principles of international law in observance of the Incorporation Clause in
Section 2, Article II of the Constitution. In a situation however, where the
conflict is irreconcilable and a choice has to be made between a rule of
international law and municipal law, jurisprudence dictates that municipal
law should be upheld by the municipal courts for the reason that such courts
are organs of municipal law and are accordingly bound by it in all
circumstances. The fact that international law has been made part of the
law of the land does not pertain to or imply the primacy of international law
over national or municipal law in the municipal sphere. The doctrine of
incorporation, as applied in most countries, decrees that rules of
international law are given equal standing with, but are not superior to,
national legislative enactments. Accordingly, the principle of lex posterior
derogat priori takes effect a treaty may repeal a statute and a statute may
repeal a treaty. In states where the Constitution is the highest law of the
land, such as the Republic of the Philippines, both statutes and treaties may
be invalidated if they are in conflict with the Constitution. (Secretary of
Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Jan. 18, 2000, En
Banc [Melo])

378. Is sovereignty really absolute and all-encompassing? If not, what are

its restrictions and limitations?

Held: While sovereignty has traditionally been deemed absolute and all-
encompassing on the domestic level, it is however subject to restrictions and
limitations voluntarily agreed to by the Philippines, expressly or impliedly, as
a member of the family of nations. By the doctrine of incorporation, the
country is bound by generally accepted principles of international law, which
are considered to be automatically part of our own laws. One of the oldest
and most fundamental rules in international law is pacta sunt servanda
international agreements must be performed in good faith. A state which
has contracted valid international obligations is bound to make in its
legislations such modifications as may be necessary to ensure the fulfillment
of the obligations.

By their inherent nature, treaties really limit or restrict the absoluteness of

sovereignty. By their voluntary act, nations may surrender some aspects of
their state power in exchange for greater benefits granted by or derived from
a convention or pact. After all, states, like individuals, live with coequals,
and in pursuit of mutually covenanted objectives and benefits, they also
commonly agree to limit the exercise of their otherwise absolute rights.
Thus, treaties have been used to record agreements between States
concerning such widely diverse matters as, for example, the lease of naval
bases, the sale or cession of territory, the termination of war, the regulation
of conduct of hostilities, the formation of alliances, the regulation of
commercial relations, the settling of claims, the laying down of rules
governing conduct in peace and the establishment of international
organizations. The sovereignty of a state therefore cannot in fact and in
reality be considered absolute. Certain restrictions enter into the picture: (1)
limitations imposed by the very nature of membership in the family of
nations and (2) limitations imposed by treaty stipulations. (Tanada v.
Angara, 272 SCRA 18, May 2, 1997 [Panganiban])

379. What must a person who feels aggrieved by the acts of a foreign
sovereign do to espouse his cause?

Held: Private respondent is not left without any legal remedy for the
redress of its grievances. Under both Public International Law and
Transnational Law, a person who feels aggrieved by the acts of a foreign
sovereign can ask his own government to espouse his cause through
diplomatic channels.

Private respondent can ask the Philippine government, through the

Foreign Office, to espouse its claims against the Holy See. Its first task is to
persuade the Philippine government to take up with the Holy See the validity
of its claim. Of course, the Foreign Office shall first make a determination of
the impact of its espousal on the relations between the Philippine
government and the Holy See (Young, Remedies of Private Claimants Against
Foreign States, Selected Readings on Protection by Law of Private Foreign
Investments 905, 919 [1964]). Once the Philippine government decides to
espouse the claim, the latter ceases to be a private cause.

According to the Permanent Court of International Justice, the

forerunner of the International Court of Justice:

By taking up the case of one of its subjects and by resorting to diplomatic

action or international judicial proceedings on his behalf, a State is in reality
asserting its own rights - its right to ensure, in the person of its subjects,
respect for the rules of international law (The Mavrommatis Palestine
Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).
(Holy See, The v. Rosario, Jr., 238 SCRA 524, 538-539, Dec. 1, 1994,
En Banc [Quiason])

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

Held: Before the annexation of the Papal States by Italy in 1870, the Pope
was the monarch and he, as the Holy See, was considered a subject of
International Law. With the loss of the Papal States and the limitation of the
territory under the Holy See to an area of 108.7 acres, the position of the
Holy See in International Law became controversial.

In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy
recognized the exclusive dominion and sovereign jurisdiction of the Holy See
over the Vatican City. It also recognized the right of the Holy See to receive
foreign diplomats, to send its own diplomats to foreign countries, and to
enter into treaties according to International Law.

The Lateran Treaty established the statehood of the Vatican City for the
purpose of assuring to the Holy See absolute and visible independence and
of guaranteeing to it indisputable sovereignty also in the field of international
relations.

In view of the wordings of the Lateran Treaty, it is difficult to determine

whether the statehood is vested in the Holy See or in the Vatican City. Some
writers even suggested that the treaty created two international persons -
the Holy See and Vatican City.

The Vatican City fits into none of the established categories of states, and
the attribution to it of sovereignty must be made in a sense different from
that in which it is applied to other states. In a community of national states,
the Vatican City represents an entity organized not for political but for
ecclesiastical purposes and international objects. Despite its size and object,
the Vatican City has an independent government of its own, with the Pope,
who is also head of the Roman Catholic Church, as the Holy See or Head of
State, in conformity with its traditions, and the demands of its mission in the
world. Indeed, the world-wide interests and activities of the Vatican City are
such as to make it in a sense an international state.

One authority wrote that the recognition of the Vatican City as a state has
significant implication - that it is possible for any entity pursuing objects
essentially different from those pursued by states to be invested with
international personality.

Inasmuch as the Pope prefers to conduct foreign relations and enter into
transactions as the Holy See and not in the name of the Vatican City, one can
conclude that in the Pope's own view, it is the Holy See that is the
international person.

The Republic of the Philippines has accorded the Holy See the status of a
foreign sovereign. The Holy See, through its Ambassador, the Papal Nuncio,
has had diplomatic representations with the Philippine government since
1957. This appears to be the universal practice in international relations.
(Holy See, The v. Rosario, Jr., 238 SCRA 524, 533-534, Dec. 1, 1994,
En Banc [Quiason])

381. What are international organizations? Discuss their nature.

Held: International organizations are institutions constituted by

international agreement between two or more States to accomplish common
goals. The legal personality of these international organizations has been
recognized not only in municipal law, but in international law as well.

Permanent international commissions and administrative bodies have been

created by the agreement of a considerable number of States for a variety of
international purposes, economic or social and mainly non-political. In so far
as they are autonomous and beyond the control of any one State, they have
distinct juridical personality independent of the municipal law of the State
where they are situated. As such, they are deemed to possess a species of
international personality of their own. (SEAFDEC-AQD v. NLRC, 206 SCRA
283, Feb. 14, 1992)

382. Discuss the basic immunities of international organizations and the

reason for affording them such immunities.

Held: One of the basic immunities of an international organization is

immunity from local jurisdiction, i.e., that it is immune from legal writs and
processes issued by the tribunals of the country where it is found. The
obvious reason for this is that the subjection of such an organization to the
authority of the local courts would afford a convenient medium through
which the host government may interfere in their operations or even
influence or control its policies and decisions; besides, such subjection to
local jurisdiction would impair the capacity of such body to discharge its
responsibilities impartially on behalf of its member-states. (SEAFDEC-AQD
v. NLRC, 206 SCRA 283, Feb. 4, 1992)

383. Discuss the two conflicting concepts of sovereign immunity from suit.

Held: There are two conflicting concepts of sovereign immunity, each

widely held and firmly established. According to the classical or absolute
theory, a sovereign cannot, without its consent, be made a respondent in the
courts of another sovereign. According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with regard to public acts or
acts jure imperii of a state, but not with regard to private acts or acts jure
gestionis.

Some states passed legislation to serve as guidelines for the executive or

judicial determination when an act may be considered as jure gestionis. The
United States passed the Foreign Sovereign Immunities Act of 1976, which
defines a commercial activity as either a regular course of commercial
conduct or a particular commercial transaction or act. Furthermore, the law
declared that the commercial character of the activity shall be determined
by reference to the nature of the course of conduct or particular transaction
or act, rather than by reference to its purpose. The Canadian Parliament
enacted in 1982 an Act to Provide For State Immunity in Canadian Courts.
The Act defines a commercial activity as any particular transaction, act or
conduct or any regular course of conduct that by reason of its nature, is of a
commercial character.

The restrictive theory, which is intended to be a solution to the host of

problems involving the issue of sovereign immunity, has created problems of
its own. Legal treatises and the decisions in countries which follow the
restrictive theory have difficulty in characterizing whether a contract of a
sovereign state with a private party is an act jure gestionis or an act jure
imperii.

The restrictive theory came about because of the entry of sovereign states
into purely commercial activities remotely connected with the discharge of
governmental functions. This is particularly true with respect to the
Communist states which took control of nationalized business activities and
international trading. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec.
1, 1994, En Banc [Quiason])

384. Cite some transactions by a foreign state with private parties that were
considered by the Supreme Court as acts jure imperii and acts jure
gestionis.

Held: This Court has considered the following transactions by a foreign

state with private parties as acts jure imperii: (1) the lease by a foreign
government of apartment buildings for use of its military officers (Syquia v.
Lopez, 84 Phil. 312 [1949]); (2) the conduct of public bidding for the repair of
a wharf at a United States Naval Station (United States of America v. Ruiz,
supra.); and (3) the change of employment status of base employees
(Sanders v. Veridiano, 162 SCRA 88 [1988]).

On the other hand, this Court has considered the following transactions by a
foreign state with private parties as acts jure gestionis: (1) the hiring of a
cook in the recreation center, consisting of three restaurants, a cafeteria, a
bakery, a store, and a coffee and pastry shop at the John Hay Air Station in
Baguio City, to cater to American servicemen and the general public (United
States of America v. Rodrigo, 182 SCRA 644 [1990]; and (2) the bidding for
the operation of barber shops in Clark Air Base in Angeles City (United States
of America v. Guinto, 182 SCRA 644 [1990]). The operation of the
restaurants and other facilities open to the general public is undoubtedly for
profit as a commercial and not a governmental activity. By entering into the
employment contract with the cook in the discharge of its proprietary
function, the United States government impliedly divested itself of it
sovereign immunity from suit. (Holy See, The v. Rosario, Jr., 238 SCRA
524, Dec. 1, 1994, En Banc [Quiason])
385. What should be the guidelines to determine what activities and
transactions shall be considered commercial and as constituting acts jure
gestionis by a foreign state?

Held: In the absence of legislation defining what activities and transactions

shall be considered commercial and as constituting acts jure gestionis, we
have to come out with our own guidelines, tentative they may be.

Certainly, the mere entering into a contract by a foreign state with a private
party cannot be the ultimate test. Such an act can only be the start of the
inquiry. The logical question is whether the foreign state is engaged in the
activity in the regular course of business. If the foreign state is not engaged
regularly in a business or trade, the particular act or transaction must then
be tested by its nature. If the act is in pursuit of a sovereign activity, or an
incident thereof, then it is an act jure imperii, especially when it is not
undertaken for gain or profit.

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

There is no question that the United States of America, like any other state,
will be deemed to have impliedly waived its non-suability if it has entered
into a contract in its proprietary or private capacity. It is only when the
contract involves its sovereign or governmental capacity that no such waiver
may be implied.
(Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc
[Quiason])

386. May the Holy See be sued for selling the land it acquired by donation
from the Archdiocese of Manila to be made site of its mission or the Apostolic
Nunciature in the Philippines but which purpose cannot be accomplished as
the land was occupied by squatters who refused to vacate the area?

Held: In the case at bench, if petitioner (Holy See) has bought and sold
lands in the ordinary course of a real estate business, surely the said
transaction can be categorized as an act jure gestionis. However, petitioner
has denied that the acquisition and subsequent disposal of Lot 5-A were
made for profit but claimed that it acquired said property for the site of its
mission or the Apostolic Nunciature in the Philippines. X x x

Lot 5-A was acquired by petitioner as a donation from the Archdiocese of

Manila. The donation was made not for commercial purpose, but for the use
of petitioner to construct thereon the official place of residence of the Papal
Nuncio. The right of a foreign sovereign to acquire property, real or personal,
in a receiving state, necessary for the creation and maintenance of its
diplomatic mission, is recognized in the 1961 Vienna Convention on
Diplomatic Relations. This treaty was concurred in by the Philippine Senate
and entered into force in the Philippines on November 15, 1965.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity

from the civil and administrative jurisdiction of the receiving state over any
real action relating to private immovable property situated in the territory of
the receiving state which the envoy holds on behalf of the sending state for
the purposes of the mission. If this immunity is provided for a diplomatic
envoy, with all the more reason should immunity be recognized as regards
the sovereign itself, which in this case is the Holy See.

The decision to transfer the property and the subsequent disposal thereof
are likewise clothed with a governmental character. Petitioner did not sell
Lot 5-A for profit or gain. It merely wanted to dispose off the same because
the squatters living thereon made it almost impossible for petitioner to use it
for the purpose of the donation. (Holy See, The v. Rosario, Jr., 238 SCRA
524, Dec. 1, 1994, En Banc [Quiason])

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

Held: In Public International Law, when a state or international agency

wishes to plead sovereign or diplomatic immunity in a foreign court, it
requests the Foreign Office of the state where it is sued to convey to the
court that said defendant is entitled to immunity.

In the United States, the procedure followed is the process of suggestion,

where the foreign state or the international organization sued in an American
court requests the Secretary of State to make a determination as to whether
it is entitled to immunity. If the Secretary of State finds that the defendant is
immune from suit, he, in turn, asks the Attorney General to submit to the
court a suggestion that the defendant is entitled to immunity. In England,
a similar procedure is followed, only the Foreign Office issues a certification
to that effect instead of submitting a suggestion.

In the Philippines, the practice is for the foreign government or the

international organization to first secure an executive endorsement of its
claim of sovereign or diplomatic immunity. But how the Philippine Foreign
Office conveys its endorsement to the courts varies. In International Catholic
Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of
Foreign Affairs just sent a letter directly to the Secretary of Labor and
Employment, informing the latter that the respondent-employer could not be
sued because it enjoyed diplomatic immunity. In World Health Organization
v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial
court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S.
Embassy asked the Secretary of Foreign Affairs to request the Solicitor
General to make, in behalf of the commander of the United States Naval
Base at Olongapo City, Zambales, a suggestion to respondent Judge. The
Solicitor General embodied the suggestion in a Manifestation and
Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of
Legal Affairs moved with this Court to be allowed to intervene on the side of
petitioner. The Court allowed the said Department to file its memorandum in
support of 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, 533-534, Dec.
1, 1994, En Banc [Quiason])

390. What is extradition? To whom does it apply?

Held: It is the process by which persons charged with or convicted of crime

against the law of a State and found in a foreign State are returned by the
latter to the former for trial or punishment. It applies to those who are
merely charged with an offense but have not been brought to trial; to those
who have been tried and convicted and have subsequently escaped from
custody; and those who have been convicted in absentia. It does not apply
to persons merely suspected of having committed an offense but against
whom no charge has been laid or to a person whose presence is desired as a
witness or for obtaining or enforcing a civil judgment. (Weston, Falk, D'
Amato, International Law and Order, 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 Assyro-Babylonians but their basis for allowing extradition was unclear.
Sometimes, it was granted due to pacts; at other times, due to plain good
will. The classical commentators on international law thus focused their
early views on the nature of the duty to surrender an extraditee --- whether
the duty is legal or moral in character. Grotius and Vattel led the school of
thought that international law imposed a legal duty called civitas maxima to
extradite criminals. In sharp contrast, Puffendorf and Billot led the school of
thought that the so-called duty was but an "imperfect obligation which could
become enforceable only by a contract or agreement between states.

Modern nations tilted towards the view of Puffendorf and Billot that under
international law there is no duty to extradite in the absence of treaty,
whether bilateral or multilateral. Thus, the US Supreme Court in US v.
Rauscher (119 US 407, 411, 7 S Ct. 234, 236, 30 L. ed. 425 [1886]), held: x
x x it is only in modern times that the nations of the earth have imposed
upon themselves the obligation of delivering up these fugitives from justice
to the states where their crimes were committed, for trial and punishment.
This has been done generally by treaties x x x Prior to these treaties, and
apart from them there was no well-defined obligation on one country to
deliver up such fugitives to another; and though such delivery was often
made it was upon the principle of comity x x x. (Dissenting Opinion,
Puno, J., in Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No.
139465, Jan. 18, 2000, En Banc)

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

proceeding?

Held: [A]n extradition proceeding is sui generis. It is not a criminal

proceeding which will call into operation all the rights of an accused as
guaranteed by the Bill of Rights. To begin with, the process of extradition
does not involve the determination of the guilt or innocence of an accused.
His guilt or innocence will be adjudged in the court of the state where he will
be extradited. Hence, as a rule, constitutional rights that are only relevant to
determine the guilt or innocence of an accused cannot be invoked by an
extraditee especially by one whose extradition papers are still undergoing
evaluation. As held by the US Supreme Court in United States v. Galanis:

An extradition proceeding is not a criminal prosecution, and the

constitutional safeguards that accompany a criminal trial in this country do
not shield an accused from extradition pursuant to a valid treaty. (Wiehl,
Extradition Law at the Crossroads: The Trend Toward Extending Greater
Constitutional Procedural Protections To Fugitives Fighting Extradition from
the United States, 19 Michigan Journal of International Law 729, 741 [1998],
citing United States v. Galanis, 429 F. Supp. 1215 [D. Conn. 1977])

There are other differences between an extradition proceeding and a

criminal proceeding. An extradition proceeding is summary in natural while
criminal proceedings involve a full-blown trial. In contradistinction to a
criminal proceeding, the rules of evidence in an extradition proceeding allow
admission of evidence under less stringent standards. In terms of the
quantum of evidence to be satisfied, a criminal case requires proof beyond
reasonable doubt for conviction while a fugitive may be ordered extradited
upon showing of the existence of a prima facie case. Finally, unlike in a
criminal case where judgment becomes executory upon being rendered final,
in an extradition proceeding, our courts may adjudge an individual
extraditable but the President has the final discretion to extradite him. The
United States adheres to a similar practice whereby the Secretary of State
exercises wide discretion in balancing the equities of the case and the
demands of the nation's foreign relations before making the ultimate
decision to extradite.

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

stage in an extradition proceeding is not akin to a preliminary investigation,
the due process safeguards in the latter do not necessarily apply to the
former. This we hold for the procedural due process required by a given set
of circumstances must begin with a determination of the precise nature of
the government function involved as well as the private interest that has
been affected by governmental action. The concept of due process is
flexible for not all situations calling for procedural safeguards call for the
same kind of procedure. (Secretary of Justice v. Hon. Ralph C.
Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc [Puno])

393. Will the retroactive application of an extradition treaty violate the

constitutional prohibition against "ex post facto" laws?

Held: The prohibition against ex post facto law applies only to criminal
legislation which affects the substantial rights of the accused. This being so,
there is no merit in the contention that the ruling sustaining an extradition
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.

5 There Is an Underlying Risk of Flight.

Fifth, persons to be extradited are presumed to be flight risks. This prima

facie presumption finds reinforcement in the experience of the executive
branch: nothing short of confinement can ensure that the accused will not
flee the jurisdiction of the requested state in order to thwart their extradition
to the requesting state.
The present extradition case further validates the premise that persons
sought to be extradited have a propensity to flee. Indeed, extradition
hearings would not even begin, if only the accused were willing to submit to
trial in the requesting country (Persily, International Extradition and the
Right to Bail, 34 Stan. J. 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 ever-present, underlying
high risk of flight. He has demonstrated that he has the capacity and the will
to flee. Having fled once, what is there to stop him, given sufficient
opportunity, from fleeing a second time? (Government of the United
States of America v. Hon. Guillermo Purganan, G.R. No. 148571,
Sept. 24, 2002, En Banc [Panganiban])

399. Discuss the Ten Points to consider in Extradition Proceedings?

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

whether the request expressed in the petition, supported by its annexes and
the evidence that may be adduced during the hearing of the petition,
complies with the Extradition Treaty and Law; and whether the person sought
is extraditable. The proceedings are intended merely to assist the
requesting state in bringing the accused or the fugitive who has illegally
escaped back to its territory, so that the criminal process may proceed
therein.

2. By entering into an extradition treaty, the Philippines is deemed to have

reposed its trust in the reliability or soundness of the legal and judicial
system of its treaty partner; as well as in the ability and the willingness of
the latter to grant basic rights to the accused in the pending criminal case
therein.

3. By nature then, extradition proceedings are not equivalent to a criminal

case in which guilt or innocence is determined. Consequently, an extradition
case is not one in which the constitutional rights of the accused are
necessarily available. It is more akin, if at all, to a courts request to police
authorities for the arrest of the accused who is at large or has escaped
detention or jumped bail. Having once escaped the jurisdiction of the
requesting state, the reasonable prima facie presumption is that the person
would escape again if given the opportunity.
4. Immediately upon receipt of the petition for extradition and its supporting
documents, the judge shall make a prima facie finding whether the petition is
sufficient in form and substance, whether it complies with the Extradition
Treaty and Law, and whether the person sought is extraditable. The
magistrate has discretion to require the petitioner to submit further
documentation, or to personally examine the affiants or witnesses. If
convinced that a prima facie case exists, the judge immediately issues a
warrant for the arrest of the potential extraditee and summons him or her to
answer and to appear at scheduled hearings on the petition.

5. After being taken into custody, potential extraditees may apply for bail.
Since the applicants have a history of absconding, they have the burden of
showing that (a) there is no flight risk and no danger to the community; and
(b) there exist special, humanitarian or compelling circumstances. The
grounds used by the highest court in the requesting state for the grant of bail
therein may be considered, under the principle of reciprocity as a special
circumstance. In extradition cases, bail is not a matter of right; it is subject
to judicial discretion in the context of the peculiar facts of each case.

6. Potential extraditees are entitled to the rights to due process and to

fundamental fairness. Due process does not always call for a prior
opportunity to be heard. A subsequent opportunity is sufficient due to the
flight risk involved. Indeed, available during the hearings on the petition and
the answer is the full chance to be heard and to enjoy fundamental fairness
that is compatible with the summary nature of extradition.

7. This Court will always remain a protector of human rights, a bastion of

liberty, a bulwark of democracy and the conscience of society. But it is also
well aware of the limitations of its authority and of the need for respect for
the prerogatives of the other co-equal and co-independent organs of
government.

8. We realize that extradition is essentially an executive, not a judicial,

responsibility arising out of the presidential power to conduct foreign
relations and to implement treaties. Thus, the Executive Department of
government has broad discretion in its duty and power of implementation.
9. On the other hand, courts merely perform oversight functions and
exercise review authority to prevent or excise grave abuse and tyranny.
They should not allow contortions, delays and over-due process every little
step of the way, lest these summary extradition proceedings become not
only inutile but also sources of international embarrassment due to our
inability to comply in good faith with a treaty partners simple request to
return a fugitive. Worse, our country should not be converted into a dubious
haven where fugitives and escapees can unreasonably delay, mummify,
mock, frustrate, checkmate and defeat the quest for bilateral justice and
international cooperation.

10. At bottom, extradition proceedings should be conducted with all

deliberate speed to determine compliance with the Extradition Treaty and
Law; and, while safeguarding basic individual rights, to avoid the legalistic
contortions, delays and technicalities that may negate that purpose.
(Government of the United States of America v. Hon. Guillermo
Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

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, 5 th Edition,
1992, pp. 141-142)

2. The purpose of a most favored nation clause is to grant to the contracting

party treatment not less favorable than that which has been or may be
granted to the "most favored" among other countries. The most favored
nation clause is intended to establish the principle of equality of international
treatment by providing that the citizens or subjects of the contracting
nations may enjoy the privileges accorded by either party to those of the
most favored nation (Commissioner of Internal Revenue v. S.C.
Johnson and Son, Inc., 309 SCRA 87, 107-108, June 25, 1999, 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 non-resident foreign corporation based in the USA,
with the BIR for refund of overpaid withholding tax on royalties pursuant to
the most-favored-nation clause of the RP-US Tax Treaty in relation to the RP-
West Germany Tax Treaty. It held:

Given the purpose underlying tax treaties and the rationale for the most
favored nation clause, the concessional tax rate of 10 percent provided for in
the RP-Germany Tax Treaty should apply only if the taxes imposed upon
royalties in the RP-US Tax Treaty and in the RP-Germany Tax Treaty are paid
under similar circumstances. This would mean that private respondent (S.C.
Johnson and Son, Inc.) must prove that the RP-US Tax Treaty grants similar
tax reliefs to residents of the United States in respect of the taxes imposable
upon royalties earned from sources within the Philippines as those allowed to
their German counterparts under the RP-Germany Tax Treaty.

The RP-US and the RP-West Germany Tax Treaties do not contain similar
provisions on tax crediting. Article 24 of the RP-Germany Tax Treaty x x x
expressly allows crediting against German income and corporation tax of
20% of the gross amount of royalties paid under the law of the Philippines.
On the other hand, Article 23 of the RP-US Tax Treaty, which is the
counterpart provision with respect to relief for double taxation, does not
provide for similar crediting of 20% of the gross amount of royalties paid. X x
x

X x x The entitlement of the 10% rate by U.S. firms despite the absence of
matching credit (20% for royalties) would derogate from the design behind
the most favored nation clause to grant equality of international treatment
since the tax burden laid upon the income of the investor is not the same in
the two countries. The similarity in the circumstances of payment of taxes is
a condition for the enjoyment of most favored nation treatment precisely to
underscore the need for equality of treatment.

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

Held: Ratification is generally held to be an executive act, undertaken by

the head of state or of the government, as the case may be, through which
the formal acceptance of the treaty is proclaimed. A State may provide in its
domestic legislation the process of ratification of a treaty. The consent of the
State to be bound by a treaty is expressed by ratification when: (a) the treaty
provides for such ratification, (b) it is otherwise established that the
negotiating States agreed that ratification should be required, (c) the
representative of the State has signed the treaty subject to ratification, or (d)
the intention of the State to sign the treaty subject to ratification appears
from the full powers of its representative, or was expressed during the
negotiation. (BAYAN [Bagong Alyansang Makabayan] v. Executive
Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc
[Buena])

407. Explain the pacta sunt servanda rule.

Held: One of the oldest and most fundamental rules in international law is
pacta sunt servanda international agreements must be performed in good
faith. A treaty engagement is not a mere moral obligation but creates a
legally binding obligation on the parties x x x. A state which has contracted
valid international obligations is bound to make in its legislations such
modifications as may be necessary to ensure the fulfillment of the
obligations undertaken. (Tanada v. Angara, 272 SCRA 18, May 2, 1997
[Panganiban])

408. Explain the "rebus sic stantibus" rule (i.e., things remaining as they
are). Does it operate automatically to render a treaty inoperative?

Held: According to Jessup, the doctrine constitutes an attempt to formulate

a legal principle which would justify non-performance of a treaty obligation if
the conditions with relation to which the parties contracted have changed so
materially and so unexpectedly as to create a situation in which the exaction
of performance would be unreasonable. The key element of this doctrine is
the vital change in the condition of the contracting parties that they could
not have foreseen at the time the treaty was concluded.

The doctrine of rebus sic stantibus does not operate automatically to render
the treaty inoperative. There is a necessity for a formal act of rejection,
usually made by the head of state, with a statement of the reasons why
compliance with the treaty is no longer required. (Santos III v. Northwest
Orient Airlines, 210 SCRA 256, June 23, 1992)

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

Held: This principle is expressed in Article 5 of the Hague Convention of

1930 on the Conflict of Nationality Laws as follows:

Art. 5. Within a third State a person having more than one nationality shall
be treated as if he had only one. Without prejudice to the application of its
law in matters of personal status and of any convention in force, a third State
shall, of the nationalities which any such person possesses, recognize
exclusively in its territory either the nationality of the country in which he is
habitually and principally resident or the nationality of the country with
which in the circumstances he appears to be in fact most closely connected.
(Frivaldo v. COMELEC, 174 SCRA 245, June 23, 1989)

410. What are the conditions before foreign military bases, troops, or
facilities may be allowed in the Philippines?

Ans.: After the expiration in 1991 of the Agreement between the

Republic of the Philippines and the United States of America concerning
Military Bases, foreign military bases, troops, or facilities shall not be allowed
in the Philippines except under a treaty duly concurred in by the Senate and,
when the Congress so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a
treaty by the other contracting State. (Sec. 25, Art. XVIII, 1987
Constitution)

411. Which provision of the Constitution applies with regard to the exercise
by the Senate of its constitutional power to concur with the Visiting Forces
Agreement (VFA)?

Held: One focal point of inquiry in this controversy is the determination of

which provision of the Constitution applies, with regard to the exercise by the
Senate of its constitutional power to concur with the VFA. Petitioners argue
that Section 25, Article XVIII is applicable considering that the VFA has for its
subject the presence of foreign military troops in the Philippines.
Respondents, on the contrary, maintain that Section 21, Article VII should
apply inasmuch as the VFA is not a basing arrangement but an agreement
which involves merely the temporary visits of United States personnel
engaged in joint military exercises.

The 1987 Philippine contains two provisions requiring the concurrence

of the Senate on treaties or international agreements. Section 21, Article VII
x x x reads:

"No treaty or international agreement shall be valid and effective unless

concurred in by at least two-thirds of all the Members of the Senate."

Section 25, Article XVIII, provides:

"After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases,
foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and, when
the Congress so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a
treaty by the other contracting State."

Section 21, Article VII deals with treaties or international agreements in

general, in which case, the concurrence of at least two-thirds (2/3) of all the
Members of the Senate is required to make the subject treaty, or
international agreement, valid and binding on the part of the Philippines.
This provision lays down the general rule on treaties or international
agreements and applies to any form of treaty with a wide variety of subject
matter, such as, but not limited to, extradition or tax treaties or those
economic in nature. All treaties or international agreements entered into by
the Philippines, regardless of subject matter, coverage, or particular
designation or appellation, requires the concurrence of the Senate to be valid
and effective.
 In contrast, Section 25, Article XVIII is a special provision that applies
to treaties which involve the presence of foreign military bases, troops or
facilities in the Philippines. Under this provision, the concurrence of the
Senate is only one of the requisites to render compliance with the
constitutional requirements and to consider the agreement binding on the
Philippines. Section 25, Article XVIII further requires that "foreign military
bases, troops, or facilities" may be allowed in the Philippines only by virtue of
a treaty duly concurred in by the Senate, ratified by a majority of the votes
cast in a national referendum held for that purpose if so required by
Congress, and recognized as such by the other contracting State.

It is our considered view that both constitutional provisions, far from

contradicting each other, actually share some common ground. These
constitutional provisions both embody phrases in the negative and thus, are
deemed prohibitory in mandate and character. In particular, Section 21
opens with the clause "No treaty x x x," and Section 25 contains the phrase
"shall not be allowed." Additionally, in both instances, the concurrence of
the Senate is indispensable to render the treaty or international agreement
valid and effective.

To our mind, the fact that the President referred the VFA to the Senate
under Section 21, Article VII, and that the Senate extended its concurrence
under the same provision, is immaterial. For in either case, whether under
Section 21, Article VII or Section 25, Article XVIII, the fundamental law is
crystalline that the concurrence of the Senate is mandatory to comply with
the strict constitutional requirements.

On the whole, the VFA is an agreement which defines the treatment of

United States troops and personnel visiting the Philippines. It provides for
the guidelines to govern such visits of military personnel, and further defines
the rights of the United States and the Philippine government in the matter
of criminal jurisdiction, movement of vessels and aircraft, importation and
exportation of equipment, materials and supplies.

Undoubtedly, Section 25, Article XVIII, which specifically deals with

treaties involving foreign military bases, troops, or facilities, should apply in
the instant case. To a certain extent and in a limited sense, however, the
provisions of Section 21, Article VII will find applicability with regard to the
issue and for the sole purpose of determining the number of votes required
to obtain the valid concurrence of the Senate x x x.

It is a finely-imbedded principle in statutory construction that a special

provision or law prevails over a general one. Lex specialis derogat generali.
Thus, where there is in the same statute a particular enactment and also a
general one which, in its most comprehensive sense, would include what is
embraced in the former, the particular enactment must be operative, and
the general enactment must be taken to affect only such cases within its
general language which are not within the provision of the particular
enactment (Manila Railroad Co. v. Collector of Customs, 52 Phil. 950).
(BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary
Ronaldo Zamora, G.R. No. 138570 and Companion Cases, Oct. 10,
2000, 342 SCRA 449, 481-492, En Banc [Buena])

412. Should the contention that since the VFA merely involved the
temporary visits of United States personnel engaged in joint military
exercises and not a basing agreement, therefore, Sec. 21, Art. VII of the
1987 Constitution, and not Sec. 25, Art. XVIII, should apply to the VFA, be
upheld?

Held: It is specious to argue that Section 25, Article XVIII is

inapplicable to mere transient agreements for the reason that there is no
permanent placing of structure for the establishment of a military base. On
this score, the Constitution makes no distinction between "transient" and
"permanent". Certainly, we find nothing in Section 25, Article XVIII that
requires foreign troops or facilities to be stationed or placed permanently in
the Philippines.

It is a rudiment in legal hermeneutics that when no distinction is made

by law, the Court should not distinguish - Ubi lex non distinguit nec nos
distinguire debemos.

In like manner, we do not subscribe to the argument that Section 25,

Article XVIII is not controlling since no foreign military bases, but merely
foreign troops and facilities, are involved in the VFA. Notably, a perusal of
said constitutional provision revels that the proscription covers "foreign
military bases, troops, or facilities." Stated differently, this prohibition is not
limited to the entry of troops and facilities without any foreign bases being
established. The clause does not refer to foreign military bases, troops, or
facilities" collectively but treats them as separate and independent subjects.
The use of comma and disjunctive word "or" clearly signifies disassociation
and independence of one thing from the others included in the enumeration
(Castillo-Co v. Barbers, 290 SCRA 717, 723 [1998]), such that, the provision
contemplates three different situations - a military treaty the subject of
which could be either (a) foreign bases (b) foreign troops, or (c) foreign
facilities - any of the three standing alone places it under the coverage of
Section 25, Article XVIII.

To this end, the intention of the framers of the Charter, as manifested

during the deliberations of the 1986 Constitutional Commission, is consistent
with this interpretation x x x.
 Moreover, military bases established within the territory of another
state is no longer viable because of the alternatives offered by new means
and weapons of warfare such as nuclear weapons, guided missiles as well as
huge sea vessels that can stay afloat in the sea even for months and years
without returning to their home country. These military warships are actually
used as substitutes for a land-home base not only of military aircraft but also
of military personnel and facilities. Besides, vessels are mobile as compared
to a land-based military headquarters. (BAYAN [Bagong Alyansang
Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No.
138570 and Companion Cases, Oct. 10, 2000, 342 SCRA 449, 481-
492, En Banc [Buena])

413. Were the requirements of Sec. 25, Art. XVIII of the 1987 Constitution
complied with when the Senate gave its concurrence to the VFA?

Held: Section 25, Article XVIII disallows foreign military bases, troops, or
facilities in the country, unless the following conditions are sufficiently met,
viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by
the Senate and, when so required by Congress, ratified by a majority of the
votes cast by the people in a national referendum; and (c) recognized as a
treaty by the other contracting state.

There is no dispute as to the presence of the first two requisites in the case
of the VFA. The concurrence handed by the Senate through Resolution No.
18 is in accordance with the provisions of the Constitution, whether under
the general requirement in Section 21, Article VII, or the specific mandate
mentioned in Section 25, Article XVIII, the provision in the latter article
requiring ratification by a majority of the votes cast in a national referendum
being unnecessary since Congress has not required it.

As to the matter of voting, Section 21, Article VII particularly requires that a
treaty or international agreement, to be valid and effective, must be
concurred in by at least two-thirds of all the members of the Senate. On the
other hand, Section 25, Article XVIII simply provides that the treaty be "duly
concurred in by the Senate."

Applying the foregoing constitutional provisions, a two-thirds vote of all the

members of the Senate is clearly required so that the concurrence
contemplated by law may be validly obtained and deemed present. While it
is true that Section 25, Article XVIII requires, among other things, that the
treaty - the VFA, in the instant case - be "duly concurred in by the Senate," it
is very true however that said provision must be related and viewed in light
of the clear mandate embodied in Section 21, Article VII, which in more
specific terms, requires that the concurrence of a treaty, or international
agreement, be made by a two-thirds vote of all the members of the Senate.
Indeed, Section 25, Article XVIII must not be treated in isolation to Section
21, Article VII.

As noted, the "concurrence requirement" under Section 25, Article XVIII must
be construed in relation to the provisions of Section 21, Article VII. In a more
particular language, the concurrence of the Senate contemplated under
Section 25, Article XVIII means that at least two-thirds of all the members of
the Senate favorably vote to concur with the treaty - the VFA in the instant
case.

xxx

Having resolved that the first two requisites prescribed in Section 25, Article
XVIII are present, we shall now pass upon and delve on the requirement that
the VFA should be recognized as a treaty by the United States of America.

xxx

This Court is of the firm view that the phrase "recognized as a treaty" means
that the other contracting party accepts or acknowledges the agreement as
a treaty (Ballantine's Legal Dictionary, 1995). To require the other
contracting state, The United States of America in this case, to submit the
VFA to the United States Senate for concurrence pursuant to its Constitution,
is to accord strict meaning to the phrase.

Well-entrenched is the principle that the words used in the Constitution are
to be given their ordinary meaning except where technical terms are
employed, in which case the significance thus attached to them prevails. Its
language should be understood in the sense they have in common use (J.M.
Tuason & Co., Inc. v. Land Tenure Association, 31 SCRA 413 [1970])

Moreover, it is inconsequential whether the United States treats the VFA only
as an executive agreement because, under international law, an executive
agreement is as binding as a treaty (Altman Co. v. United States, 224 US 263
[1942], cited in Coquia and Defensor-Santiago, International Law, 1998 Ed. P.
497). To be sure, as long as the VFA possesses the elements of an
agreement under international law, the said agreement is to be taken equally
as a treaty.

xxx

The records reveal that the United States Government, through Ambassador
Thomas C. Hubbard, has stated that the United States government has fully
committed to living up to the terms of the VFA. For as long as the United
States of America accepts or acknowledges the VFA as a treaty, and binds
itself further to comply with its obligations under the treaty, there is indeed
marked compliance with the mandate of the Constitution.

Worth stressing too, is that the ratification, by the President, of the VFA and
the concurrence of the Senate should be taken as a clear and unequivocal
expression of our nation's consent to be bound by said treaty, with the
concomitant duty to uphold the obligations and responsibilities embodied
thereunder.

xxx

With the ratification of the VFA, which is equivalent to final acceptance, and
with the exchange of notes between the Philippines and the United States of
America, it now becomes obligatory and incumbent on our part, under the
principles of international law, to be bound by the terms of the agreement.
Thus, no less than Section 2, Article II of the Constitution, declares that the
Philippines adopts the generally accepted principles of international law as
part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with all nations. (BAYAN [Bagong
Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R.
No. 138570 and Companion Cases, Oct. 10, 2000, 342 SCRA 449,
481-492, En Banc [Buena])

414. Are the Balikatan exercises covered by the Visiting Forces

Agreement?

Held: The holding of Balikatan 02-1 must be studied in the

framework of the treaty antecedents to which the Philippines bound itself.
The first of these is the Mutual Defense Treaty (MDT, for brevity). The MDT
has been described as the core of the defense relationship between the
Philippines and its traditional ally, the United States. Its aim is to enhance
the strategic and technological capabilities of our armed forces through joint
training with its American counterparts; the Balikatan is the largest such
training exercise directly supporting the 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, 2nd Ed., American Casebook Series, p. 136). Hence, we
cannot readily plead the Constitution as a convenient excuse for non-
compliance with our obligations, duties and responsibilities under
international law.

Beyond this, Article 13 of the Declaration of Rights and Duties of States

adopted by the International Law Commission in 1949 provides: Every State
has the duty to carry out in good faith its obligations arising from treaties
and other sources of international law, and it may not invoke provisions in its
constitution or its laws as an excuse for failure to perform this duty. (Gerhard
von Glahn, supra, p. 487)

Equally important is Article 26 of the Convention which provides that Every

treaty in force is binding upon the parties to it and must be performed by
them in good faith. This is known as the principle of pacta sunt servanda
which preserves the sanctity of treaties and have been one of the most
fundamental principles of positive international law, supported by the
jurisprudence of international tribunals (Harris, p. 634 cited in Coquia,
International Law, supra, p. 512). (BAYAN [Bagong Alyansang
Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No.
138570, Oct. 10, 2000, 342 SCRA 449, 492-493, En Banc [Buena])

416. What must a person who feels aggrieved by the acts of a foreign
sovereign do to espouse his cause?

Held: Private respondent is not left without any legal remedy for the
redress of its grievances. Under both Public International Law and
Transnational Law, a person who feels aggrieved by the acts of a foreign
sovereign can ask his own government to espouse his cause through
diplomatic channels.

Private respondent can ask the Philippine government, through the

Foreign Office, to espouse its claims against the Holy See. Its first task is to
persuade the Philippine government to take up with the Holy See the validity
of its claim. Of course, the Foreign Office shall first make a determination of
the impact of its espousal on the relations between the Philippine
government and the Holy See (Young, Remedies of Private Claimants Against
Foreign States, Selected Readings on Protection by Law of Private Foreign
Investments 905, 919 [1964]). Once the Philippine government decides to
espouse the claim, the latter ceases to be a private cause.

According to the Permanent Court of International Justice, the

forerunner of the International Court of Justice:
 By taking up the case of one of its subjects and by resorting to diplomatic
action or international judicial proceedings on his behalf, a State is in reality
asserting its own rights - its right to ensure, in the person of its subjects,
respect for the rules of international law (The Mavrommatis Palestine
Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).
(Holy See, The v. Rosario, Jr., 238 SCRA 524, 538-539, Dec. 1, 1994,
En Banc [Quiason])

417. What are the conditions before the rights of belligerency may be
accorded the rebels?

Ans.: As a matter of legal theory, the rebels have to fulfill certain

conditions before the rights of belligerency are accorded them, namely:

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

418. Discuss the legal consequences that follow recognition of belligerency.

Ans.:

1) Before recognition as such, it is the legitimate government that is

responsible for the acts of the rebels affecting foreign nationals and their
properties. Once recognition is given, the legitimate government may no
longer be held responsible for their acts; responsibility is shifted to the rebel
government;
2) The legitimate government, once it recognizes the rebels as
belligerents, is bound to observe the laws and customs of war in conducting
the hostilities;
3) From the point of view of third States, the effect of recognition of
belligerency is to put them under obligation to observe strict neutrality and
abide by the consequences arising from that position;
4) On the side of the rebels, recognition of belligerency puts them
under responsibility to third States and to the legitimate government for all
their acts which do not conform to the laws and customs of war. (Salonga
& Yap, Public International Law, 5th Ed. [1992], p. 33)
419. Should Courts blindly adhere and take on its face the communication
from the Department of Foreign Affairs (DFA) that a person is covered by any
immunity?

Held: Courts cannot blindly adhere and take on its face the
communication from the DFA that petitioner is covered by any immunity.
The 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 254-257).

On the other hand, they are similar in the sense that acts performed in an
official capacity by either a diplomatic envoy or an international official are
not attributable to him as an individual but are imputed to the entity he
represents, the state in the case of the diplomat, and the organization in the
case of the international official (Id. at 103). ). (Concurring Opinion, Puno
J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26,
2001, 1st Div. [Motion for Reconsideration])

424. What is the reason behind the current tendency of reducing privileges
and immunities of personnel of international organizations to a minimum?

Held: Looking back over 150 years of privileges and immunities granted to
the personnel of international organizations, it is clear that they were
accorded a wide scope of protection in the exercise of their functions The
Rhine Treaty of 1804 between the German Empire and France which provided
all the rights of neutrality to persons employed in regulating navigation in
the international interest; The Treaty of Berlin of 1878 which granted the
European Commission of the Danube complete independence of territorial
authorities in the exercise of its functions; The Convention of the League
which granted diplomatic immunities and privileges. Today, the age of the
United Nations finds the scope of protection narrowed. The current tendency
is to reduce privileges and immunities of personnel of international
organizations to a minimum. The tendency cannot be considered as a
lowering of the standard but rather as a recognition that the problem on the
privileges and immunities of international officials is new. The solution to the
problem presented by the extension of diplomatic prerogatives to
international functionaries lies in the general reduction of the special position
of both types of agents in that the special status of each agent is granted in
the interest of function. The wide grant of diplomatic prerogatives was
curtailed because of practical necessity and because the proper functioning
of the organization did not require such extensive immunity for its officials.
While the current direction of the law seems to be to narrow the prerogatives
of the personnel of international organizations, the reverse is true with
respect to the prerogatives of the organizations themselves, considered as
legal entities. Historically, states have been more generous in granting
privileges and immunities to organizations than they have to the personnel
of these organizations (J.K. King, supra note 12, at 253-268).

Thus, Section 2 of the General Convention on the Privileges and Immunities

of the United Nations states that the UN shall enjoy immunity from every
form of legal process except insofar as in any particular case it has expressly
waived its immunity. Section 4 of the Convention on the Privileges and
Immunities of the Specialized Agencies likewise provides that the specialized
agencies shall enjoy immunity from every form of legal process subject to
the same exception. Finally, Article 50[1] of the ADB Charter and Section 5
of the Headquarters Agreement similarly provide that the bank shall enjoy
immunity from every form of legal process, except in cases arising out of or
in connection with the exercise of its powers to borrow money, to guarantee
obligations, or to buy and sell or underwrite the sale of securities.

The phrase immunity from every form of legal process as used in the UN
General Convention has been interpreted to mean absolute immunity from a
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, 1st Div. [Motion for Reconsideration])

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

Held: Section 18 [a] of the General Convention has been interpreted

to mean that officials of the specified categories are denied immunity from
local jurisdiction for acts of their private life and empowers local courts to
assume jurisdiction in such cases without the necessity of waiver (Id. at
186). It has earlier been mentioned that historically, international officials
were granted diplomatic privileges and immunities and were thus considered
immune for both private and official acts. In practice, this wide grant of
diplomatic prerogatives was curtailed because of practical necessity and
because the proper functioning of the organization did not require such
exclusive immunity for its officials. Thus, the current status of the law does
not maintain that states grant jurisdictional immunity to international
officials for acts of their private lives (But see id. at 259. It is important to
note that the submission of international officials to local jurisdiction for
private acts is not completely accepted in doctrine and theory. Jenks, in
particular, has argued for complete jurisdictional immunity, as has
Hammarskjold.). This much is explicit from the charter and Headquarters
Agreement of the ADB which contain substantially similar provisions to that
of the General convention. (Concurring Opinion, Puno J., in Jeffrey
Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 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,
1st 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,
1st Div. [Motion for Reconsideration])

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

Ans.: There are only two occasions when the use of force is allowed under
the UN Charter. The first is when it is authorized in pursuance of the
enforcement action that may be decreed by the Security Council under Art.
42. The second is when it is employed in the exercise of the inherent right of
self-defense under conditions prescribed in Art. 51. (Justice Isagani A.
Cruz, in an article entitled A New World Order written in his
column Separate Opinion published in the March 30, 2003 issue of
the Philippines Daily Inquirer)

429. Is the United States justified in invading Iraq invoking its right to
defend itself against an expected attack by Iraq with the use of its biological
and chemical weapons of mass destruction?

Ans.: The United States is invoking its right to defend itself against an
expected attack by Iraq with the use of its biological and chemical weapons
of mass destruction. There is no evidence of such a threat, but Bush is
probably invoking the modern view that a state does not have to wait until
the potential enemy fires first. The cowboy from Texas says that outdrawing
the foe who is about to shoot is an act of self-defense.

Art. 51 says, however, that there must first be an armed attack before a
state can exercise its inherent right of self-defense, and only until the
Security Council, to which the aggression should be reported, shall have
taken the necessary measures to maintain international peace and security.
It was the United States that made the armed attack first, thus becoming
the aggressor, not Iraq. Iraq is now not only exercising its inherent right of
self-defense as recognized by the UN Charter. (Justice Isagani A. Cruz, in
an article entitled A New World Order written in his column
Separate Opinion published in the March 30, 2003 issue of the
Philippines Daily Inquirer)

430. Will the subsequent discovery of weapons of mass destruction in Iraq

after its invasion by the US justify the attack initiated by the latter?

Ans.: Even if 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)