Prof. Sandoval Edwin 2018 SYLLABUS POL PIL PDF

NO.
03
Notes and Cases
POLITICAL LAW
AND PUBLIC
INTERNATIONAL
LAW
PROF. EDWIN R. SANDOVAL
Notes and Cases
POLITICAL LAW AND PUBLIC INTERNATIONAL LAW
Attorney EDWIN REY SANDOVAL
January 16 – July 28, 2017
August 6, 2017
April 20, 2018
POLITICAL LAW
THE CONSTITUTION
The Doctrine of Constitutional Supremacy
Under the doctrine of constitutional supremacy, if a law or contract violates any norm
of the Constitution, that law or contract, whether promulgated by the legislative or by the
executive branch or entered into by private persons for private purposes, is null and void and
without any force and effect. Thus, since the Constitution is the fundamental, paramount
and supreme law of the nation, it is deemed written in every statute and contract. (Manila
Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo])
Self-executing and Non-self-executing Provisions of the Constitution
A provision which lays down a general principle, such as those found in Article II of
the 1987 Constitution, is usually not self-executing. But a provision which is complete in
itself and becomes operative without the aid of supplementary or enabling legislation, or that
which supplies sufficient rule by means of which the right it grants may be enjoyed or
protected, is self-executing. Thus a constitutional provision is self-executing if the nature
and extent of the right conferred and the liability imposed are fixed by the Constitution itself,
so that they can be determined by an examination and construction of its terms, and there is
no language indicating that the subject is referred to the legislature for action. (Manila
Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo])
Provisions of the Constitution are presumed to be Self-executing
Unless it is expressly provided that a legislative act is necessary to enforce a

constitutional mandate, the presumption now is that all provisions are self-executing. If the
constitutional provisions are treated as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically nullify the mandate of the
fundamental law. This can be cataclysmic. (Manila Prince Hotel v. GSIS, 267 SCRA 408
[1997] [Bellosillo])
AMENDMENTS OR REVISION
(Article XVII, 1987 Constitution)
Ways of Proposing Amendments or Revision
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Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626
First: Congress may directly propose amendments or revision by three-fourths (3/4)
vote of all its members. In such a case, Congress will not be acting as a legislative body but
rather, as a constituent assembly – a non-legislative function of Congress.
Second: through a Constitutional Convention. A constitutional convention is a body

separate and distinct from that of the Congress itself whose members shall be elected by the
people of their respective districts.
Third: through People’s Initiative.
People’s initiative on the Constitution is done through a petition, but the petition will
have to be signed by at least twelve (12) per cent of the total number of registered voters
provided that in each legislative district, at least three (3) per cent of the registered voters
therein shall sign the petition.
The provisions of R.A. No 6735 (The Initiative and Referendum Law) dealing with
initiative on the constitution implements people’s initiative on the Constitution under Section
2, Article XVII, 1987 Constitution.
Ratification
Any proposed amendment or revision of the Constitution will have to be submitted to

the people in a plebiscite to be ratified by majority of the voters.
The Effect of Declaration of Unconstitutionality of a Legislative or Executive Act
A legislative or executive act that is declared void for being unconstitutional cannot
give rise to any right or obligation. (Commissioner of Internal Revenue v. San Roque
Power Corporation, G.R. No. 187485, October 8, 2013 cited in Maria Carolina P. Araullo,
et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014,
En Banc [Bersamin])
The Operative Fact Doctrine
The doctrine of operative fact recognizes the existence of the law or executive act
prior to the determination of its unconstitutionality as an operative fact that produced
consequences that cannot always be erased, ignored or disregarded. In short, it nullifies the
void law or executive act but sustains its effects. It provides an exception to the general rule
that a void or unconstitutional law produces no effect. But its use must be subjected to great
scrutiny and circumspection, and it cannot be invoked to validate an unconstitutional law or
executive act, but is resorted to only as a matter of equity and fair play. It applies only to
cases where extraordinary circumstances exist, and only when the extraordinary
circumstances have met the stringent conditions that will permit its application. (Maria
Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728
SCRA 1, July 1, 2014, En Banc [Bersamin])
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Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626
Operative Fact Doctrine Applied in the DAP (Disbursement Acceleration Program)
Case
We find the doctrine of operative fact applicable to the adoption and implementation
of the DAP. Its application to the DAP proceeds from equity and fair play. The
consequences resulting from the DAP and its related issuances could not be ignored or
could no longer be undone.
As already mentioned, the implementation of the DAP resulted into the use of
savings pooled by the Executive to finance the PAPs that were not covered in the GAA, or
that did not have proper appropriation covers, as well as to augment items pertaining to
other departments of the Government in clear violation of the Constitution. To declare the
implementation of the DAP unconstitutional without recognizing that its prior implementation
constituted an operative fact that produced consequences in the real as well as juristic
worlds of the Government and the Nation is to be impractical and unfair. Unless the doctrine
is held to apply, the Executive as the disburser and the offices under it and elsewhere as the
recipients could be required to undo everything that they had implemented in good faith
under the DAP. That scenario would be enormously burdensome for the Government.
Equity alleviates such burden.
The other side of the coin is that it has been adequately shown as to be beyond
debate that the implementation of the DAP yielded undeniably positive results that enhanced
the economic welfare of the country. To count the positive results may be impossible, but
the visible ones, like public infrastructure, could easily include roads, bridges, homes for the
homeless, hospitals, classrooms and the like. Not to apply the doctrine of operative fact to
the DAP could literally cause the physical undoing of such worthy results by destruction, and
would result in most undesirable wastefulness. (Maria Carolina P. Araullo, et al. v.
Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En
Banc [Bersamin])
The Doctrine of Operative Fact Extends as well to a Void or Unconstitutional

Executive Act
The term executive act is broad enough to include any and all acts of the Executive,
including those that are quasi-legislative and quasi-judicial in nature.
In Commissioner of Internal Revenue v. San Roque Power Corporation (G.R. No.

187485, October 8, 2013), the Court likewise declared that “for the operative act doctrine to
apply, there must be a ‘legislative or executive measure,’ meaning a law or executive
issuance.” Thus, the Court opined there that the operative fact doctrine did not apply to a
mere administrative practice of the Bureau of Internal Revenue, x x x.
It is clear from the foregoing that the adoption and the implementation of the DAP
and its related issuances were executive acts. The DAP itself, as a policy, transcended a
merely administrative practice especially after the Executive, through the DBM, implemented
it by issuing various memoranda and circulars. (Maria Carolina P. Araullo, et al. v.
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Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626
Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En
Banc [Bersamin])
The Presumption of Good Faith Stands in the DAP Case despite the Obiter
Pronouncement
The quoted text of paragraphs 3 and 4 shows that the Court has neither thrown out
the presumption of good faith nor imputed bad faith to the authors, proponents and
implementers of the DAP. The contrary is true, because the Court has still presumed their
good faith by pointing out that “the doctrine of operative fact x x x cannot apply to the authors,
proponents and implementers of the DAP, unless there are concrete findings of good faith in
their favor by the proper tribunals determining their criminal, civil, administrative and other
liabilities.” X x x
It is equally important to stress that the ascertainment of good faith, or the lack of it,
and the determination of whether or not due diligence and prudence were exercised, are
questions of fact. The want of good faith is thus better determined by tribunals other than
this Court, which is not a trier of facts.
For sure, the Court cannot jettison the presumption of good faith in this or in any
other case. The presumption is a matter of law. It has had a long history. Indeed, good
faith has long been established as a legal principle even in the heydays of the Roman
Empire. X x x
Relevantly the authors, proponents and implementers of the DAP, being public
officers, further enjoy the presumption of regularity in the performance of their functions.
This presumption is necessary because they are clothed with some part of the sovereignty of
the State, and because they act in the interest of the public as required by law. However,
the presumption may be disputed.
At any rate, the Court has agreed during its deliberations to extend to the proponents
and the implementers of the DAP the benefit of the doctrine of operative fact. This is
because they had nothing to do at all with the adoption of the invalid acts and practices.
(Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et al., G.R. No.
209287, February 3, 2015, En Banc [Bersamin], Resolution of the Motion for
Reconsideration)
THE NATIONAL TERRITORY
The national territory comprises the Philippine archipelago, with all the islands
and waters embraced therein, and all other territories over which the Philippines has
sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains,
including its territorial sea, the seabed, the subsoil, the insular shelves, and other
submarine areas. The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of the internal
waters of the Philippines. (Article I, 1987 Constitution)
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Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626
The Maritime Baselines Law (R.A. No. 9522)
In 1961, Congress passed Republic Act No. 3046 (RA 3046) demarcating the
maritime baselines of the Philippines as an archipelagic State. This law followed the framing
of the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I),
codifying, among others, the sovereign right of States parties over their “territorial sea,” the
breadth of which, however, was left undetermined. Attempts to fill this void during the
second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus,
domestically, RA 3046 remained unchanged for nearly five decades, save for legislation
passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and
reserving the drawing of baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522. The change was
prompted by the need to make RA 3046 compliant with the terms of the United Nations
Convention on the Law of the Sea (UNCLOS III), which the Philippines ratified on 27
February 1984. Among others, UNCLOS III prescribes the water-land ratio, length, and
contour of baselines of archipelagic states like the Philippines and sets the deadline for the
filing of application for the extended continental shelf. Complying with these requirements,
RA 9522 shortened one baseline, optimized the location of some basepoints around the
Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group
(KIG) and the Scarborough Shoal, as “regimes of islands” whose islands generate their own
applicable maritime zones. (Professor Merlin M. Magallona, et al. v. Hon. Eduardo
Ermita, et al., G.R. No. 187167, 655 SCRA 476, August 16, 2011, En Banc [Carpio])
RA 9522 is not unconstitutional. It is a statutory tool to demarcate the country’s

maritime zones and continental shelf under UNCLOS III, not to delineate Philippine
territory.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones (i,e., the
territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles
from the baselines], exclusive economic zone [200 nautical miles from the baselines]), and
continental shelves that UNCLOS III delimits. UNCLOS III was the culmination of decades-
long negotiations among United Nations members to codify norms regulating the conduct of
States in the world’s oceans and submarine areas, recognizing coastal and archipelagic
States’ graduated authority over a limited span of waters and submarine lands along their
coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III
States parties to work-out specific basepoints along their coasts from which baselines are
drawn, either straight or contoured, to serve as geographic starting points to measure the
breadth of the maritime zones and continental shelf.
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States
parties to delimit with precision the extent of their maritime zones and continental shelves.
In turn, this gives notice to the rest of the international community of the scope of the
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Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626
maritime space and submarine areas within which States parties exercise treaty-based
rights, namely: the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to
enforce customs, fiscal, immigration and sanitation laws in the contiguous zone (Article 33),
and the right to exploit the living and non-living resources in the exclusive economic zone
(Article 56) and continental shelf (Article 77). (Professor Merlin M. Magallona, et al. v. Hon.
Eduardo Ermita, et al., G.R. No. 187167, 655 SCRA 476, August 16, 2011, En Banc
[Carpio])
UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or diminution of territory. Under traditional international law typology, states
acquire (or conversely, lose) territory through occupation, accretion, cession and prescription,
not by executing multilateral treaties on the regulation of sea-use rights or enacting statutes
to comply with the treaty’s terms to delimit maritime zones and continental shelves.
Territorial claims to land features are outside UNCLOS IIII, and are instead governed by the
rules on general international law. (Professor Merlin M. Magallona, et al. v. Hon. Eduardo
Ermita, et al., G.R. No. 187167, 655 SCRA 476, August 16, 2011, En Banc [Carpio])
RA 9522’s use of the framework of Regime of Islands to determine the maritime zones
of the Kalayaan Island Group (KIG) and the Scarborough Shoal is not inconsistent
with the Philippines’ claim of sovereignty over these areas.
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that
RA 9522 merely followed the basepoints mapped by RA 3046, save for at least nine
basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the length
of one baseline (and thus comply with UNCLOS III’s limitation on the maximum length of
baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie
outside of the baselines drawn around the Philippine archipelago. This undeniable
cartographic fact takes the wind out of petitioners’ argument branding RA 9522 as a
statutory renunciation of the Philippines’ claim over the KIG, assuming that baselines are
relevant for this purpose.
Petitioners’ assertion of loss of “about 15,000 square nautical miles of territorial

waters” under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA
9522, by optimizing the location of basepoints, increased the Philippines’ total maritime
space (covering its internal waters, territorial sea and exclusive economic zone) by 154,216
square nautical miles x x x.
Further, petitioners’ argument that the KIG now lies outside Philippine territory
because the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522
itself. Section 2 of the law commits to text the Philippines’ continued claim of sovereignty
and jurisdiction over the KIG and the Scarborough Shoal x x x
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of
the Philippine archipelago, adverse legal effects would have ensued. The Philippines would
have committed a breach of two provisions of UNCLOS III. X x x
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Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626
Although the Philippines has consistently claimed sovereignty over the KIG and the
Scarborough Shoal for several decades, these outlying areas are located at an appreciable
distance from the nearest shoreline of the Philippine archipelago, such that any straight
baseline loped around them from the nearest basepoint will inevitably “depart to an
appreciable extent from the general configuration of our archipelago.”
Xxx
[T]he amendment of the baselines law was necessary to enable the Philippines to
draw the outer limits of its maritime zones including the extended continental shelf provided
by Article 47 of [UNCLOS III].
Hence, far from surrendering the Philippines’ claim over the KIG and the
Scarborough Shoal, Congress’ decision to classify the KIG and the Scarborough Shoal as
“’Regime[s] of Islands’ under the Republic of the Philippines consistent with Article 121” of
UNCLOS III manifests the Philippine State’s responsible observance of its pacta sunt
servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any “naturally
formed area of land, surrounded by water, which is above water at high tide,” such as
portions of the KIG, qualifies under the category of “regime of islands,” whose islands
generate their own applicable maritime zones. (Professor Merlin M. Magallona, et al. v.
Hon. Eduardo Ermita, et al., G.R. No. 187167, 655 SCRA 476, August 16, 2011, En Banc
[Carpio])
THE DOCTRINE OF STATE IMMUNITY FROM SUIT
The State may not be sued without its consent. (Section 3, Article XVI, 1987
Constitution)
Discuss the basis of the Doctrine of State Immunity from Suit
The basic postulate enshrined in the Constitution that “[t]he State may not be sued
without its consent,” reflects nothing less than a recognition of the sovereign character of the
State and an express affirmation of the unwritten rule effectively insulating it from the
jurisdiction of courts. It is based on the very essence of sovereignty. As has been aptly
observed by Justice Holmes, a sovereign is exempt from suit, not because of any formal
conception or obsolete theory, but on the logical and practical ground that there can be no
legal right as against the authority that makes the law on which the right depends. True, the
doctrine, not too infrequently, is derisively called “the royal prerogative of dishonesty”
because it grants the state the prerogative to defeat any legitimate claim against it by simply
invoking its non-suability. We have had occasion to explain in its defense, however, that a
continued adherence to the doctrine of non-suability cannot be deplored, for the loss of
governmental efficiency and the obstacle to the performance of its multifarious functions
would be far greater in severity than the inconvenience that may be caused private parties, if
such fundamental principle is to be abandoned and the availability of judicial remedy is not to
be accordingly restricted. (Department of Agriculture v. NLRC, 227 SCRA 693, Nov. 11,
1993 [Vitug])
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Is the rule absolute, i.e., that the State may not be sued at all? How may consent of
the State to be sued given?
The rule, in any case, is not really absolute for it does not say that the state may not
be sued under any circumstances. On the contrary x x x the doctrine only conveys, “the
state may not be sued without its consent;” its clear import then is that the State may at
times be sued. The State's consent may be given either expressly or impliedly. Express
consent may be made through a general law (i.e., Commonwealth Act No. 327, as amended
by Presidential Decree No. 1445 [Sections 49-50], which requires that all money claims
against the government must first be filed with the Commission on Audit which must act
upon it within sixty days. Rejection of the claim will authorize the claimant to elevate the
matter to the Supreme Court on certiorari and, in effect, sue the State thereby) or a special
law. In this jurisdiction, the general law waiving the immunity of the state from suit is found
in Act No. 3083, where the Philippine government “consents and submits to be sued upon
any money claim involving liability arising from contract, express or implied, which could
serve as a basis of civil action between the private parties.” Implied consent, on the other
hand, is conceded when the State itself commences litigation, thus opening itself to a
counterclaim or when it enters into a contract. In this situation, the government is deemed to
have descended to the level of the other contracting party and to have divested itself of its
sovereign immunity. (Department of Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993
[Vitug])
The rule that when the State enters into a contract with a private individual or entity, it
is deemed to have descended to the level of that private individual or entity and,
therefore, is deemed to have tacitly given its consent to be sued, is that without any
qualification? What is the Restrictive Doctrine of State Immunity from Suit?
This rule is not without qualification. Not all contracts entered into by the government
operate as a waiver of its non-suability; distinction must still be made between one which is
executed in the exercise of its sovereign function and another which is done in its proprietary
capacity.
In United States of America v. Ruiz (136 SCRA 487), where the questioned
transaction dealt with the improvements on the wharves in the naval installation at Subic Bay,
we held:
“The traditional rule of immunity exempts a State from being sued in the
courts of another State without its consent or waiver. This rule is a necessary
consequence of the principle of independence and equality of States. However, the
rules of International Law are not petrified; they are constantly developing and
evolving. And because the activities of states have multiplied, it has been necessary
to distinguish them - between sovereign and governmental acts (jure imperii) and
private, commercial and proprietary acts (jure gestionis). The result is that State
immunity now extends only to acts jure imperii. The restrictive application of State
immunity is now the rule in the United States, the United Kingdom and other states in
Western Europe.
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Xxx
The restrictive application of State immunity is proper only when the

proceedings arise out of commercial transactions of the foreign sovereign, its
commercial activities or economic affairs. Stated differently, a State may be said to
have descended to the level of an individual and can thus be deemed to have tacitly
given its consent to be sued only when it enters into business contracts. It does not
apply where the contracts relate to the exercise of its sovereign functions. In this
case the projects are an integral part of the naval base which is devoted to the
defense of both the United States and the Philippines, indisputably a function of the
government of the highest order; they are not utilized for nor dedicated to commercial
or business purposes.” (Department of Agriculture v. NLRC, 227 SCRA 693, Nov.
11, 1993 [Vitug])
When is a suit against a public official deemed to be a suit against the State? Discuss.
The doctrine of state immunity from suit applies to complaints filed against public
officials for acts done in the performance of their duties. The rule is that the suit must be
regarded as one against the State where the satisfaction of the judgment against the public
official concerned will require the State itself to perform a positive act, such as appropriation
of the amount necessary to pay the damages awarded to the plaintiff.
The rule does not apply where the public official is charged in his official capacity for
acts that are unlawful and injurious to the rights of others. Public officials are not exempt, in
their personal capacity, from liability arising from acts committed in bad faith.
Neither does it apply where the public official is clearly being sued not in his official
capacity but in his personal capacity, although the acts complained of may have been
committed while he occupied a public position. (Amado J. Lansang v. CA, G.R. No.
102667, Feb. 23, 2000, 2nd Div. [Quisumbing])
As early as 1954, this Court has pronounced that an officer cannot shelter himself by
the plea that he is a public agent acting under the color of his office when his acts are wholly
without authority. Until recently in 1991 (Chavez v. Sandiganbayan, 193 SCRA 282 [1991]),
this doctrine still found application, this Court saying that immunity from suit cannot
institutionalize irresponsibility and non-accountability nor grant a privileged status not
claimed by any other official of the Republic. (Republic v. Sandoval, 220 SCRA 124,
March 19, 1993, En Banc [Campos, Jr.])
Arigo v. Swift, 735 SCRA 102 (2014)
A petition filed for the issuance of a Writ of Kalikasan directed against the
Commander of the US Pacific Fleet for the destruction of our corrals in Tubbataha reef (a
protected area system under the NIPAS [National Integrated Protected Areas System] and a
UN declared World Heritage Site because of its rich marine bio-diversity) in the Sulu Sea
caused by the USS Guardian, an American naval vessel when it ran aground there in the
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course of its voyage to Indonesia from its base in Okinawa, Japan, will not prosper for lack of
jurisdiction following the doctrine of sovereign equality of all States. In effect, the suit is a
suit against the US government and, therefore, should be dismissed.
The waiver of immunity from suit of the US under the Visiting Forces Agreement
(VFA) applies only to waiver from criminal jurisdiction, so that if an American soldier commits
an offense in the Philippines, he shall be tried by Philippine courts under Philippine laws.
The waiver did not include the special civil action for the issuance of a Writ of Kalikasan.
Also, the demand for compensation for the destruction of our corrals in Tubbataha
reef has been rendered moot and academic. After all, the US already signified its intention
to pay damages, as expressed by the US embassy officials in the Philippines, the only
request is that a panel of experts composed of scientists be constituted to assess the total
damage caused to our corrals there, which request is not unreasonable.
Government Funds may not be subject to Garnishment
The funds of the UP are government funds that are public in character. They include
the income accruing from the use of real property ceded to the UP that may be spent only for
the attainment of its institutional objectives. Hence, the funds subject of this action could not
be validly made the subject of writ of execution or garnishment. The adverse judgment
rendered against the UP in a suit to which it had impliedly consented was not immediately
enforceable by execution against the UP, because suability of the State did not necessarily
mean its liability. (UP v. Dizon, G.R. No. 171182, 679 SCRA 54, 23 August 2012, 1st Div.
[Bersamin])
The Doctrine should not be used to perpetrate an Injustice on a Citizen
To our mind, it would be the apex of injustice and highly inequitable for us to defeat
petitioners-contractors’ right to be duly compensated for actual work performed and services
rendered, where both the government and the public have, for years, received and accepted
benefits from said housing project and reaped the fruits of petitioners-contractors’ honest toil
and labor.
Incidentally, respondent likewise argues that the State may not be sued in the instant
case, invoking the constitutional doctrine of Non-suability of the State, otherwise known as
the Royal Prerogative of Dishonesty.
Respondent’s argument is misplaced inasmuch as the principle of State immunity

finds no application in the case before us.
Under these circumstances, respondent may not validly invoke the Royal Prerogative
of Dishonesty and conveniently hide under the State’s cloak of invincibility against suit,
considering that this principle yields to certain settled exceptions. True enough, the rule, in
any case, is not absolute for it does not say that the state may not be sued under any
circumstances.
Thus, in Amigable v. Cuenca, this Court, in effect, shred the protective shroud which
shields the state from suit, reiterating our decree in the landmark case of Ministerio v. CFI of
Cebu that “the doctrine of governmental immunity from suit cannot serve as an instrument
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for perpetrating an injustice on a citizen.” It is just as important, if not more so, that there be
fidelity to legal norms on the part of officialdom if the rule of law were to be maintained.
Although the Amigable and Ministerio cases generously tackled the issue of the
State’s immunity from suit vis a vis the payment of just compensation for expropriated
property, this Court nonetheless finds the doctrine enunciated in the aforementioned cases
applicable to the instant controversy, considering that the ends of justice would be subverted
if we were to uphold, in this particular instance, the State’s immunity from suit.
To be sure, this Court – as the staunch guardian of the citizens’ rights and welfare –
cannot sanction an injustice so patent on its face, and allow itself to be an instrument in the
perpetration thereof. Justice and equity sternly demand that the State’s cloak of invincibility
against suit be shred in this particular instance, and that petitioners-contractors be duly
compensated – on the basis of quantum meruit – for construction done on the public works
housing project. (EPG Construction Co. v. Vigilar, 354 SCRA 566, Mar.16, 2001, 2nd Div.
[Buena])
FUNDAMENTAL PRINCIPLES AND STATE POLICIES (Article II, 1987 Constitution)
The Philippines Adherence to the Doctrine of Incorporation
Section 2, Article II of the 1987 Constitution provides that the Philippines

adopts the generally accepted principles of international as part of the laws of the
land. This provision is an affirmation of our adherence to the doctrine of
incorporation in international law.
Under the 1987 Constitution, an international law can become part of the sphere of
domestic law either by transformation or incorporation. The transformation method requires
that an international law be transformed into a domestic law through a constitutional
mechanism such as local legislation. On the other hand, generally accepted principles of
international law, by virtue of the incorporation clause of the Constitution, form part of the
laws of the land even if they do not derive from treaty stipulations. Generally accepted
principles of international law include international customs as evidence of a general practice
accepted as law, and general principles of law recognized by civilized nations. International
customary rules are accepted as binding as a result from the combination of two elements:
the established, widespread, and consistent practice on the part of States; and a
psychological element known as the opinion juris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it. “General principles of law recognized
by civilized nations” are principles “established by a process of reasoning” or judicial logic,
based on principles which are “basic to legal systems generally,” such as “general principles
of equity, i.e., the general principles of fairness and justice,” and the “general principles
against discrimination” which is embodied in the “Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, the International
Convention on the Elimination of All Forms of Racial Discrimination, the Convention Against
Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect
of Employment and Occupation.” These are the same core principles which underlie the
Philippine Constitution itself, and embodied in the due process and equal protection clauses
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of the Bill of Rights. (Mary Grace Natividad S. Poe-Llamanzares v. COMELEC, G R. No.
221697, March 8, 2016, En Banc [Perez])
The Right to Self-Determination of Peoples
This right to self-determination of peoples has gone beyond mere treaty or

convention; in fact, it has now been elevated into the status of a generally accepted principle
of international law. (The Province of North Cotabato v. The Government of the
Republic of the Philippines Peace Panel, G.R. No. 183591, 568 SCRA 402, October 14,
2008, En Banc [Carpio-Morales])
The Yogyakarta Principles: Have they evolved into a generally accepted principle of
international law and, therefore, binding upon the Philippines?
We refer now to the petitioner’s invocation of the Yogyakarta Principles (the

Application of International Human Rights Law In Relation to Sexual Orientation and
Gender Identity), which petitioner declares to reflect binding principles of international law.
At this time, we are not prepared to declare that these Yogyakarta Principles contain
norms that are obligatory on the Philippines. There are declarations and obligations outlined
in said Principles which are not reflective of the current state of international law, and do not
find basis in any of the sources of international law enumerated under Article 38(1) of the
Statute of the International Court of Justice. X x x
Xxx
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a
declaration formulated by various international law professors, are – at best – de lege
refenda – and do not constitute binding obligations on the Philippines. X x x (Ang LADLAD
LGBT Party v. COMELEC, G.R. No. 190582, 618 SCRA 32, April 8, 2010, En Banc [Del
Castillo])
The Filipino First Policy
In the grant of rights, privileges and concessions covering the national

economy and patrimony, the State shall give preference to qualified Filipinos (Sec.
10, 2nd par., Art. XII of the Constitution)
Manila Prince Hotel v. GSIS, 267 SCRA 408 (1997) (Bellosillo)
In this case, the SC ruled that this provision is self-executing. It was also in this case
where the Court clarified that the rule now is that all provisions of the Constitution are
presumed to be self-executing, rather than non-self-executing. Elaborating, the Court
explained that if a contrary presumption is adopted, the whole Constitution shall remain
dormant and be captives of Congress, which could have disastrous consequences.
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Also, in this case the SC held that “patrimony” simply means “heritage.” Thus, when
we speak of “national patrimony,” we refer not only to the natural resources of the
Philippines but as well as the cultural heritage of the Filipino people.
The Right to Life of the Unborn from Conception
The Philippine national population program has always been grounded on two
cornerstone principles: “principle of no-abortion” and the “principle of non-coercion.”
These principles are not merely grounded on administrative policy, but rather, originates
from the constitutional protection which expressly provided to afford protection to life and
guarantee religious freedom.
When Does Life Begin?
Majority of Members of the Court are of the position that the question of when life
begins is a scientific and medical issue that should not be decided, at this stage, without
proper hearing and evidence. During the deliberations, however, it was agreed upon that
the individual members of the Court could express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
Xxx
Textually, the Constitution affords protection to the unborn from conception. This is
undisputable because before conception, there is no unborn to speak of. For said reason, it
is no surprise that the Constitution is mute as to any proscription prior to conception or when
life begins. The problem has arisen because, amazingly, there are quarters who have
conveniently disregarded the scientific fact that conception is reckoned from fertilization.
They are waving the view that life begins at implantation. Hence, the issue of when life
begins.
Xxx
In conformity with the above principle, the traditional meaning of the word
“conception” which, as described and defined by all reliable and reputable sources, means
that life begins at fertilization.
Xxx
From the deliberations above-quoted, it is apparent that the framers of the

Constitution emphasized that the State shall provide equal protection to both the mother and
the unborn child from the earliest opportunity of life, that is, upon fertilization or upon
the union of the male sperm and the female ovum. X x x
Equally apparent, however, is that the Framers of the Constitution did not intend to
ban all contraceptives for being unconstitutional. From the discussions above,
contraceptives that kill or destroy the fertilized ovum should be deemed an abortive and thus
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prohibited. Conversely, contraceptives that actually prevent the union of the male sperm
and the female ovum, and those that similarly take action prior to fertilization should be
deemed non-abortive, and thus, constitutionally permissible. (James M. Imbong, et al. v.
Hon. Paquito N. Ochoa, Jr., et al., GR No. 204819, April 8, 2014, En Banc [Mendoza])
The Right to Health and to a Balanced and Healthful Ecology in Accord with the
Rhythm and Harmony of Nature
International Service for the Acquisition of Agri-Biotech Applications, Inc. v.

Greenpeace Southeast Asia (Philippines), et al., G.R. No. 209271, December 8, 2015,
En Banc (Villarama, Jr.)
The Precautionary Principle
The precautionary principle originated in Germany in the 1960s, expressing the

normative idea that governments are obligated to “foresee and forestall” harm to the
environment. In the following decades, the precautionary principle has served as the
normative guideline for policymaking by many national governments. The Rio Declaration
on Environment and Development, the outcome of the 1992 United Nations Conference on
Environment and Development held in Rio de Janeiro, defines the rights of the people to be
involved in the development of their economies, and the responsibilities of human beings to
safeguard the common environment. It states that the long term economic progress is only
ensured if it s linked with the protection of the environment. For the first time, the
precautionary approach was codified under Principle 15, which reads:
In order to protect the environment, the precautionary approach shall be widely

applied by States according to their capabilities. Where there are threats of serious
or irreversible damage, lack of full scientific certainty shall not be used as a reason
for postponing cost-effective measures to prevent environmental degradation.
Principle 15 codified for the first time at the global level the precautionary approach,
which indicates that lack of scientific certainty is no reason to postpone action to avoid
potentially serious or irreversible harm to the environment. It has been incorporated in
various international legal instruments. The Cartagena Protocol on Biosafety to the
Convention on Biological Diversity, finalized and adopted in Montreal on January 29, 2000,
establishes an international regime primarily aimed at regulating trade in GMOs intended for
release into the environment, in accordance with Principle 15 of the Rio Declaration on
Environment and Development. X x x
The precautionary principle applies when the following conditions are met:
1. There exist considerable scientific uncertainties;

2. There exist scenarios (or models) of possible harm that are scientifically
reasonable (that is based on some scientifically plausible reasoning);
3. Uncertainties cannot be reduced in the short term without at the same time
increasing ignorance of other relevant factors by higher levels of abstraction
and idealization;
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4. The potential harm is sufficiently serious or even irreversible for present or
future generations or otherwise morally unacceptable;
5. There is a need to act now, since effective counteraction later will be made
significantly more difficult or costly at any later time.
The Rules (of Procedure for Environmental Cases) likewise incorporated the principle
in Part V, Rule 20, which states:
PRECAUTIONARY PRINCIPLE
Sec. 1. Applicability. – When there is a lack of full scientific certainty in

establishing a causal link between human activity and environmental effect, the court
shall apply the precautionary principle in resolving the case before it.
The constitutional right of the people to a balanced and healthful ecology shall
be given the benefit of the doubt.
SEC. 2. Standards for application. – In applying the precautionary principle,

the following factors, among others, may be considered: (1) threats to human life or
health; (2) inequity to present or future generations; or (3) prejudice to the
environment without legal consideration of the environmental rights of those affected.
Under this Rule, the precautionary principle finds direct application in the evaluation
of evidence in cases before the courts. The precautionary principle bridges the gap in cases
where scientific certainty in factual findings cannot be achieved. By applying the
precautionary principle, the court may construe a set of facts as warranting either judicial
action or inaction, with the goal of preserving and protecting the environment. This may be
further evinced from the second paragraph where bias is created in favor of the
constitutional right of the people to a balanced and healthful ecology. In effect, the
precautionary principle shifts the burden of evidence of harm away from those likely to suffer
harm and onto those desiring to change the status quo. An application of the precautionary
principle to the rules on evidence will enable courts to tackle future environmental problems
before ironclad scientific consensus emerges. (Annotation to the Rules of Procedure for
Environmental Cases)
For purposes of evidence, the precautionary principle should be treated as a principle

of last resort, where application of the regular Rules of Evidence would cause in an
inequitable result for the environmental plaintiff – (a) settings in which the risks of harm are
uncertain; (b) settings in which harm might be irreversible and what is lost is irreplaceable;
and (c) settings in which the harm that might result would be serious. When these features –
uncertainty, the possibility of irreversible harm, and the possibility of serious harm –
coincide, the case for the precautionary principle is strongest. When in doubt, cases must
be resolved in favor of the constitutional right to a balanced and healthful ecology.
Parenthetically, judicial adjudication is one of the strongest fora in which the precautionary
principle may find applicability. (International Service for the Acquisition of Agri-biotech
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Applications, Inc. v. Greenpeace Southeast Asia [Philippines], et al., GR No. 209271,
December 8, 2015, En Banc [Villarama])
Application of the Precautionary Principle to the Bt talong Field Trials in the

Philippines
Assessing the evidence on record, as well as the current state of GMO research
worldwide, the Court finds all the three conditions present in this case – uncertainty, the
possibility of irreversible harm and the possibility of serious harm.
Xxx
Alongside the aforesaid uncertainties, the non-implementation of the NBF (National

Biosafety Framework) in the crucial stages of risk assessment and public consultation,
including the determination of the applicability of the EIS (Environmental Impact Statement)
requirements to GMO field testing, are compelling reasons for the application of the
precautionary principle. There exists a preponderance of evidence that the release of GMOs
into the environment threatens to damage our ecosystems and not just the field trial sites,
and eventually the health of our people once the Bt eggplant are consumed as food.
Adopting the precautionary approach, the Court rules that the principles of the NBF need to
be operationalized first by the coordinated actions of the concerned departments and
agencies before allowing the release into the environment of genetically modified eggplant.
The more prudent course is to immediately enjoin the Bt talong field trials and approval for
its propagation or commercialization until the said government offices shall have performed
their respective mandates to implement the NBF.
We have found the experience of India in the Bt brinjal field trials – for which an
indefinite moratorium was recommended by a Supreme Court-appointed committee till the
government fixes regulatory and safety aspects – as relevant because majority of Filipino
farmers are also small-scale farmers. Further, the precautionary approach entailed inputs
from all stakeholders, including the marginalized farmers, not just the scientific community.
This proceeds from the realization that acceptance of uncertainty is not only a scientific issue,
but is related to public policy and involves an ethical dimension. For scientific research
alone will not resolve all the problems, but participation of different stakeholders from
scientists to industry, NGOs, farmers and the public will provide a needed variety of
perspective foci, and knowledge. (International Service for the Acquisition of Agri-
biotech Applications, Inc. v. Greenpeace Southeast Asia (Philippines), et al., GR No.
209271, December 8, 2015, En Banc [Villarama])
Field Trial Proposal of Bt (Bacillus thuringiensis) Talong
The crystal toxin genes from the soil bacterium Bacillus thuringiensis (Bt) were
incorporated into the eggplant (talong) genome to produce the protein CrylAc which is toxic
to the target insect pests. CrylAc protein is said to be highly specific to lepidopteran larvae
such as the fruit and shoot borer (FSB), the most destructive insect pest of eggplant.
(International Service for the Acquisition of Agri-biotech Applications, Inc. v.
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Greenpeace Southeast Asia (Philippines), et al., GR No. 209271, December 8, 2015, En
Banc [Villarama])
Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., G.R.
No. 189185, August 16, 2016, En Banc (Bersamin)
The principle of precaution originated as a social planning principle in Germany. In

the 1980’s, the Federal Republic of Germany used the Vorsogeprinzip (“foresight principle”)
to justify the implementation of vigorous policies to tackle acid rain, global warming and
pollution of the North Sea. It has since emerged from a need to protect humans and the
environment from increasingly unpredictable, uncertain, and unquantifiable but possibly
catastrophic risks such as those associated with Genetically Modified Organisms and
climate change. The oft-cited Principle 15 of the 1992 Rio Declaration on Environment and
Development (1992 Rio Agenda) first embodied this principle x x x.
In this jurisdiction, the principle of precaution appearing in the Rules of Procedure for
Environmental Cases (A.M. No. 09-6-8-SC) involves matters of evidence in cases where
there is lack of full scientific certainty in establishing a causal link between human activity
and environmental effect. In such an event, the courts may construe a set of facts as
warranting either judicial action or inaction with the goal of preserving and protecting the
environment.
Application of the Precautionary Principle
It is notable x x x that the precautionary principle shall only be relevant if there is

concurrence of three elements, namely: uncertainty, threat of environmental damage and
serious or irreversible harm. In situations where the threat is relatively certain, or that the
causal link between an action and environmental damage can be established, or the
probability of occurrence can be calculated, only preventive, not precautionary measures,
may be taken. Neither will the precautionary principle apply if there is no indication of a
threat of environmental harm, or if the threatened harm is trivial or easily reversible.
In Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et

al., (G.R. No. 189185, August 16, 2016, En Banc [Bersamin]), it was argued that the
Ordinance enacted by the City of Davao prohibiting aerial spraying of pesticides is justified
since it will protect the health of residents and the environment against the risks posed by
aerial drift of chemicals applying the precautionary principle. The Court did not find the
presence of the elements for this principle to apply, thus, it held:
We cannot see the presence of all the elements. To begin with, there has
been no scientific study. Although the precautionary principle allows lack of full
scientific certainty in establishing a connection between the serious or irreversible
harm and the human activity, its application is still premised on empirical studies.
Scientific analysis is still a necessary basis for effective policy choices under the
precautionary principle.
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Precaution is a risk management principle invoked after scientific inquiry
takes place. This scientific stage is often considered synonymous with risk
assessment. As such, resort to the principle shall not be based on anxiety or
emotion, but from a rational decision rule, based on ethics. As much as possible, a
complete and objective scientific evaluation of the risk to the environment or health
should be conducted and made available to decision-makers for them to choose the
most appropriate course of action. Furthermore, the positive and negative effects of
an activity are also important in the application of the principle. The potential harm
resulting from certain activities should always be judged in view of the potential
benefits they offer, while the positive and negative effects of potential precautionary
measures should be considered.
The only study conducted to validate the effects of aerial spraying appears to
be the Summary Report on the Assessment and Fact-Finding Activities on the Issue
of Aerial Spraying in Banana Plantations. Yet, the fact-finding team that generated
the report was not a scientific study that could justify the resort to the precautionary
principle. In fact, the Sangguniang Bayan ignored the findings and conclusions of the
fact-finding team x x x.
We should not apply the precautionary approach in sustaining the ban against
aerial spraying if little or nothing is known of the exact or potential dangers that aerial
spraying may bring to the health of the residents within and near the plantations and
to the integrity and balance of the environment. It is dangerous to quickly presume
that the effects of aerial spraying would be adverse even in the absence of evidence.
Accordingly, for lack of scientific data supporting a ban on aerial spraying, Ordinance
No. 0309-07 should be struck down for being unreasonable.
Resident Marine Mammals of the Protected Seascape Tanon Strait, et al. v. Secretary
Angelo Reyes, et al., G.R. No. 180771, April 21, 2015, En Banc (Leonardo-De Castro)
Petitioners in this case were marine mammals (toothed whales, dolphins, and other
cetacean species) but were joined by human beings as “stewards of nature.
Are these marine mammals the proper parties to file the petition? In this case,
actually the SC did not rule squarely on this issue. The Court ruled instead that the issue of
whether these marine mammals have locus standi to file the petition had been eliminated
because of Section 5, Rules for the Enforcement of Environmental Laws, which allows any
citizen to file a petition for the enforcement of environmental laws (Citizen’s Suit) and, in their
petition, these marine mammals were joined by human beings as “stewards of nature.”
Service Contracts with Foreign Corporations for Exploration of Oil and Petroleum
Products (Paragraph 4, Section 2, Article XII, 1987 Constitution)
Angelo Reyes, et al., GR Nos. 180771 and 181527, April 21, 2015, En Banc (Leonardo-
De Castro)
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In these consolidated petitions, this Court has determined that the various issues
raised by the petitioners may be condensed into two primary issues:
Procedural Issue: Locus standi of the Resident Marine Mammals and Stewards x x
x; and
Main Issue: Legality of Service Contract No. 46.
Procedural Issue
The Resident Marine Mammals, through the Stewards, “claim” that they have the
legal standing to file this action since they stand to be benefited or injured by the judgment in
this suit, citing Oposa v. Factoran, Jr. They also assert their right to sue for the faithful
performance of international and municipal environment laws created in their favor and for
their benefit. In this regard, they propound that they have a right to demand that they be
accorded the benefits granted to them in multilateral international instruments that the
Philippine Government had signed, under the concept of stipulation pour autrui.
Xxx
In light of the foregoing, the need to give the Resident Marine Mammals legal
standing has been eliminated by our Rules, which allow any Filipino citizen, as a steward of
nature, to bring to suit to enforce our environmental laws. It is worth noting here that the
Stewards are joined as real parties in the Petition and not just in representation of the named
cetacean species. The Stewards x x x having shown in their petition that there may be
possible violations of laws concerning the habitat of the Resident Marine Mammals, are
therefore declared to possess the legal standing to file this petition.
On the Legality of Service Contract No. 46 vis-à-vis Section 2, Article XII of the 1987
Constitution
This Court has previously settled the issue of whether service contracts are still
allowed under the 1987 Constitution. In La Bugal, we held that the deletion of the words
“service contracts” in the 1987 Constitution did not amount to a ban on them per se. In fact,
in that decision, we quoted in length, portions of the deliberations of the members of the
Constitutional Commission (ConCom) to show that in deliberating on paragraph 4, Section 2,
Article XII, they were actually referring to service contracts as understood in the 1973
Constitution, albeit with safety measures to eliminate or minimize the abuses prevalent
during the martial law regime.
Agreements involving Technical or Financial Assistance are Service Contracts with
Safeguards
From the foregoing, we are impelled to conclude that the phrase agreements
involving either technical or financial assistance, referred to in paragraph 4, are in fact
service contracts. But unlike those of the 1973 variety, the new ones are between foreign
corporations acting as contractors on the one hand; and on the other, the government as
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principal or “owner” of the works. In the new service contacts, the foreign contractors
provide capital, technology and technical know-how, and managerial expertise in the
creation and operation of large-scale mining/extractive enterprises; and the government,
through its agencies (DENR, MGB), actively exercises control and supervision over the
entire operation.
In summarizing the matters discussed in the ConCom, we established that paragraph

4, with the safeguards in place, is the exception to paragraph 1, Section 2 of Article XII. The
following are the safeguards this Court enumerated in La Bugal:
Such service contracts may be entered into only with respect to minerals, petroleum
and other mineral oils. The grant thereof is subject to several safeguards, among which are
these requirements:
(1) The service contract shall be crafted in accordance with a general law that will set
standard or uniform terms, conditions and requirements, presumably to attain a
certain uniformity in provisions to avoid the possible insertion of terms
disadvantageous to the country.
(2) The President shall be the signatory of the government because, supposedly
before an agreement is presented to the President for signature, it will have been
vetted several times over at different levels to ensure that it conforms to law and
can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it to
Congress to give that branch of government an opportunity to look over the
agreement and interpose timely objections, if any.
` Adhering to the aforementioned guidelines, this Court finds that SC-46 is indeed null
and void for noncompliance with the requirements of the 1987 Constitution.
1. The General Law on Oil Exploration
The disposition, exploration, development, exploitation, and utilization of indigenous

petroleum in the Philippines are governed by Presidential Decree No. 87 or the Oil
Exploration and Development Act of 1972. X x x
Contrary to the petitioners’ argument, Presidential Decree No. 87, although enacted
in 1972, before the adoption of the 1987 Constitution, remains to be a valid law unless
otherwise repealed x x x.
This Court could not simply assume that while Presidential Decree No. 87 had not
yet been expressly repealed, it had been impliedly repealed. X x x
Consequently, we find no merit in petitioners’ contention that SC-46 is prohibited on

the ground that there is no general law prescribing the standard or uniform terms, conditions,
and requirements for service contracts involving oil exploration and extraction.
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But note must be made at this point that while Presidential Decree No. 87 may serve
as the general law upon which a service contract for petroleum exploration and extraction
may be authorized, x x x the exploitation and utilization of this energy resource in the present
case may be allowed only through a law passed by Congress, since the Tanon Strait is a
NIPAS (National Integrated Protected Areas System) area.
2. President was not the signatory to SC-46 and the same was not submitted to
Congress
While the Court finds that Presidential Decree No. 87 is sufficient to satisfy the
requirement of a general law, the absence of the two other conditions, that the President be
a signatory to SC-46, and that Congress be notified of such contract, renders it null and void.
As SC-46 was executed in 2004, its terms should have conformed not only to the
provisions of Presidential Decree No. 87, but also those of the 1987 Constitution. X x x
Paragraph 4, Section 2, Article XII of the 1987 Constitution requires that the
President himself enter into any service contract for the exploration of petroleum. SC-46
appeared to have been entered into and signed only by the DOE (Department of Energy)
through its then Secretary, Vicente S. Perez, Jr., contrary to the said constitutional
requirement. Moreover, public respondents have neither shown nor alleged that Congress
was subsequently notified of the execution of such contract.
Public respondents’ implied argument that based on the “alter ego principle,” their
acts are also that of then President Macapagal-Arroyo’s, cannot apply in this case. In Joson
v. Torres (352 Phil. 888, 915 [1998]), we explained the concept of the alter ego principle or
the doctrine of qualified political agency and its limits x x x.
Under this doctrine, which recognizes the establishment of a single executive, all
executive and administrative organizations are adjuncts of the Executive Department, the
heads of the various executive departments are assistants and agents of the Chief Executive,
and, except in cases where the Chief Executive is required by the Constitution or law to act
in person or the exigencies of the situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are performed by and through
the executive departments, and the acts of the Secretaries of such departments, performed
and promulgated in the regular course of business, are, unless disapproved or reprobated by
the Chief Executive presumably the acts of the Chief Executive.
While the requirements in executing service contracts in paragraph 4, Section 2 of

Article XII of the 1987 Constitution seem like mere formalities, they, in reality, take on a
much bigger role. As we have explained in La Bugal, they are the safeguards put in place
by the framers of the Constitution to “eliminate or minimize the abuses prevalent during the
martial law regime.” Thus, they are not just mere formalities, which will render a contract
unenforceable but not void, if not complied with. They are requirements placed, not just in
an ordinary statute, but in the fundamental law, the non-observance of which will nullify the
contract. X x x
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As this Court has held in La Bugal, our Constitution requires that the President
himself be the signatory of service agreements with foreign-owned corporations involving the
exploration, development, and utilization of our minerals, petroleum, and other mineral oils.
This power cannot be taken lightly.
In this case, the public respondents have failed to show that the President had any
participation in SC-46. Their argument that their acts are actually the acts of then President
Macapagal-Arroyo, absent proof of her disapproval, must fail as the requirement that the
President herself enter into these kinds of contracts are embodied not just in any ordinary
statute, but in the Constitution itself. These service contracts involving the exploitation,
development, and utilization of our natural resources are of paramount interest to the
present and future generations. Hence, safeguards were put in place to insure that the
guidelines set by law are meticulously observed and likewise to eradicate the corruption that
may easily penetrate departments and agencies by ensuring that the President has
authorized or approved of these service contracts herself.
Even under the provisions of Presidential Decree No. 87, it is required that the
Petroleum Board, now the DOE (Department of Energy), obtain the President’s approval for
the execution of any contract under said statute x x x.
Even if we were inclined to relax the requirement in La Bugal to harmonize the 1987
Constitution with the aforementioned provision of Presidential Decree No. 87, it must be
shown that the government agency or subordinate official has been authorized by the
President to enter into such service contract for the government. Otherwise, it should be at
least shown that the President subsequently approved of such contract explicitly. None of
these circumstances is evident in the case at bar.
On the legality of Service Contract No. 46 vis-à-vis Other Laws
Xxx
Moreover, SC-46 was not executed for the mere purpose of gathering information on
the possible energy resources in the Tanon Strait as it also provides for the parties’ rights
and obligations relating to extraction and petroleum production should oil in commercial
quantities be found to exist in the area. While Presidential Decree No. 87 may serve as the
general law upon which a service contract for petroleum exploration and extraction may be
authorized, the exploitation and utilization of this energy resource in the present case may
be allowed only through a law passed by Congress, since the Tanon Strait is a NIPAS
(National Integrated Protected Areas System) area. Since there is no such law specifically
allowing oil exploration and/or extraction in the Tanon Strait, no energy resource exploitation
and utilization may be done in said protected seascape.
Academic Freedom
Academic freedom shall be enjoyed in all institutions of higher learning. (Sec. 5[2],
Art. XIV, 1987 Constitution)
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Academic freedom of educational institutions has been defined as the right of the
school or college to decide for itself, its aims and objectives, and how best to attain them -
free from outside coercion or interference save possibly when the overriding public welfare
calls for some restraint. It has a wide sphere of autonomy certainly extending to the choice
of students. Said constitutional provision is not to be construed in a niggardly manner or in a
grudging fashion. That would be to frustrate its purpose and nullify its intent. (University of
San Agustin, Inc. v. Court of Appeals, 230 SCRA 761, 774-775, March 7, 1994 [Nocon])
What are the essential freedoms subsumed in the term “academic freedom”?
In Ateneo de Manila University v. Capulong (G.R. No. 99327, 27 May 1993), this
Court cited with approval the formulation made by Justice Felix Frankfurter of the essential
freedoms subsumed in the term “academic freedom” encompassing not only “the freedom to
determine x x x on academic grounds who may teach, what may be taught (and) how it shall
be taught,” but likewise “who may be admitted to study.” We have thus sanctioned its
invocation by a school in rejecting students who are academically delinquent, or a laywoman
seeking admission to a seminary, or students violating “School Rules on Discipline.”
(Isabelo, Jr. v. Perpetual Help College of Rizal, Inc., 227 SCRA 595-597, Nov. 8, 1993,
En Banc [Vitug])
THE STRUCTURE OF GOVERNMENT
The main distinction between a presidential form of government and a parliamentary

form of government
In a presidential form of government, there is the observance of the doctrine of

separation of powers; in a parliamentary government, instead of separation of powers, there
is the union of the executive and legislative branches. In a presidential form of government,
the President is elected by the people at large; in a parliamentary government, the Prime
Minister is elected not by the people at large but by members of Parliament.
Tests of a Valid Delegation of Power
In order to determine whether there is undue delegation of legislative power, the

Court has adopted two tests: the completeness test and the sufficient standard test. Under
the first test, the law must be complete in all its terms and conditions when it leaves the
legislature such that when it reaches the delegate, the only thing he will have to do is to
enforce it. The second test mandates adequate guidelines or limitations in the law to
determine the boundaries of the delegate’s authority and prevent the delegation from
running riot. (Jose Jesus M. Disini, Jr., et al. v. The Secretary of Justice, et al., G.R. No,.
203335, Feb. 11, 2014, En Banc [Abad])
The Legislative Department (Article VI, 1987 Constitution)
The legislative power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of Representatives, except to the extent
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reserved to the people by the provision on initiative and referendum. (Section 1,
Article VI, 1987 Constitution)
Is legislative power exclusively vested in the Congress?
R.A. No. 6735 (The Initiative and Referendum Law)
The Principle of Bicameralism
The Bicameral Conference Committee
It is a mechanism for compromising differences between the Senate and the House
of Representatives. By the nature of its function, a Bicameral Conference Committee is
capable of producing unexpected results – results which sometimes may even go beyond its
own mandate. Philippine Judges Association v. Secretary Prado; Tolentino v. Secretary of
Finance)
The Bills That Are Required to Originate Exclusively in the House of Representatives
(Section 24, Article VI of the 1987 Constitution)
It is important to note, however, that what is really required to originate exclusively in

the House of Representatives is not the law, but only the bill. The Senate has the power to
propose or concur with amendments. (Tolentino v. Secretary of Finance)
The Party-List System
The 1987 Constitution provides the basis for the party-list system of representation.
Simply put, the party-list system is intended to democratize political power by giving political
parties that cannot win in legislative district elections a chance to win seats in the House of
Representatives. The voter elects two representatives in the House of Representatives: one
for his or her legislative district; and another for his or her party-list group or organization of
choice. (Atong Paglaum, Inc., et al. v. COMELEC, G.R. No. 203766, 694 SCRA 477,
April 2, 2013, En Banc [Carpio])
Parameters to Determine Who May Participate in Party-List Elections
In determining who may participate in the coming 13 May 2013 and subsequent
party-list elections, the COMELEC shall adhere to the following parameters:
1. Three different groups may participate in the party-list system: (1) national parties
or organizations, (2) regional parties or organizations, and (3) sectoral parties or
organizations.
2. National parties or organizations and regional parties or organizations do not

need to organize along sectoral lines and do not need to represent any
“marginalized and underrepresented” sector.
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3. Political parties can participate in party-list elections provided they register under
the party-list system and do not field candidates in legislative district elections. A
political party, whether major or not, that fields candidates in legislative district
elections can participate in party-list elections through its sectoral wing that can
separately register under the party-list system. The sectoral wing is by itself an
independent sectoral party, and is linked to a political party through a coalition.
4. Sectoral parties or organizations may either be “marginalized and

underrepresented” or lacking in “well-defined political constituencies.” It is
enough that their principal advocacy pertains to the special interest and concerns
of their sector. The sectors that are “marginalized and underrepresented” include
labor, peasant, fisherfolk, urban poor, indigenous cultural communities,
handicapped, veterans, and overseas workers. The sectors that lack “well-
defined political constituencies” include professionals, the elderly, women and the
youth.
5. A majority of the members of sectoral parties or organizations that represent the

“marginalized and underrepresented” must belong to the “marginalized and
underrepresented” sector they represent. Similarly, a majority of the members of
sectoral parties or organizations that lack “well-defined political constituencies”
must belong to the sector they represent. The nominees of sectoral parties or
organizations that represent the “marginalized and underrepresented,” or that
represent those who lack “well-defined political constituencies,” either must
belong to their respective sectors, or must have a track record of advocacy for
their respective sectors. The nominees of national and regional parties or
organizations must be bona fide members of such parties or organizations.
6. National, regional, and sectoral parties or organizations shall not be disqualified if

some of their nominees are disqualified, provided that they have at least one
nominee who remains qualified. (Atong Paglaum, Inc., et al. v. COMELEC, G.R.
No. 203766, 694 SCRA 477, April 2, 2013, En Banc [Carpio])
Based on the foregoing, it can be inferred that although the party-list system is a
social justice tool designed to have the marginalized and underrepresented sectors of
society represented in the House of Representatives, nonetheless, the dominant political
parties are not totally prohibited from participating in party-list elections.
Although, as a rule, they may not participate in party-list elections if they field
candidates in district elections, however, by way of an exception, they may still participate
through their sectoral wing, provided that the sectoral wing is registered separately as a
political party in the COMELEC and is linked to the dominant political party through a
coalition. (Atong Paglaum, Inc., et al. v. COMELEC, G.R. No. 203766, 694 SCRA 477,
April 2, 2013, En Banc [Carpio])
Ang Bagong Bayani – OFW Labor Party v. COMELEC
The religious sector is expressly prohibited from participating in party-list elections

(Sec. 5, 2nd par., Art. VI, 1987 Constitution). Religious denominations and sects are even
prohibited from being registered as political parties in the COMELEC (Sec. 2, par. 5, Art. IX-
C, 1987 Constitution).
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However, the Supreme Court clarified, based on the intent of the framers of the 1987
Constitution, that what is prohibited is the registration of a religious sect as a political party;
there is no prohibition against a priest running as a candidate.
Ang Ladlad-LGBT Party v. Commission on Elections, G.R. No. 190582, 618 SCRA 32,
April 8, 2010, En Banc (Del Castillo)
The act of the COMELEC of not allowing the registration of Ang Ladlad-LGBT Party
as a political party to participate in party-list elections on the ground that its members are
“immoral,” citing verses from the Bible and the Koran, is tainted with grave abuse of
discretion as it violated the non-establishment clause of freedom of religion and, therefore,
should be nullified.
Under this non-establishment clause of freedom of religion, the COMELEC, as an

agency of the government, is not supposed to use religious standards in its decisions and
actions.
Veterans Federation Party v. COMELEC
Under Sec. 5, 2nd par., Art. VI of the Constitution, the party-list representatives shall
constitute twenty (20) percent of the total number of representatives, including those under
the party-list. Based on this, the ratio is 4:1, i.e., for every four (4) district representatives,
there should be one (1) party-list representative.
In the computation of the number of seats allocated to party-list representatives,

fractional representation is not allowed is it will exceed the twenty (20) allocated seats for
party-list representatives and, therefore, will violate the Constitution. In such a case, what
should be done is simply to disregard the fraction.
The Inviolable Parameters to Determine the Winners in Party-list Elections are:
1. the twenty (20) percent allocation;

2. the two (2) percent threshold;
3. the three (3) - seat limit; and
4. proportional representation
Barangay Association for National Advancement and Transparency (BANAT) v.

COMELEC, G.R. No. 179271, 586 SCRA 210, July 2, 2009, En Banc (Carpio)
What was declared unconstitutional in this case was not the two (2) percent threshold
itself; but rather, the continued application of the two (2) percent threshold in determining the
additional seats that will be allocated to winners in party-list elections. Thus, the SC clarified:
“We rule that, in computing the allocation of additional seats, the continued
operation of the two percent threshold for the distribution of the additional seats as
found in the second clause of Section 11(b) of R.A. No. 7941 is unconstitutional.
This Court finds that the two percent threshold makes it mathematically impossible to
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achieve the maximum number of available party list seats when the number of
available party list seats exceeds 50. The continued operation of the two percent
threshold in the distribution of the additional seats frustrates the attainment of the
permissive ceiling that 20% of the members of the House of Representatives shall
consist of party-list representatives.
“X x x
“We therefore strike down the two percent threshold only in relation to the
distribution of the additional seats as found in the second clause of Section 11(b) of
R.A. No. 7941. The two percent threshold presents an unwarranted obstacle to the
full implementation of Section 5(2), Article VI of the Constitution and prevents the
attainment of “the broadest possible representation of party, sectoral or group
interests in the House of Representatives.”
Party-list Representatives and District Representatives have the same Rights, Salaries,
and Emoluments
Once elected, both the district representatives and the party-list representatives are
treated in like manner. They have the same deliberative rights, salaries, and emoluments.
They can participate in the making of laws that will directly benefit their legislative districts or
sectors. They are also subject to the same term limitation of three years for a maximum of
three consecutive terms. (Daryl Grace J. Abayon v. The Honorable House of
Representatives Electoral Tribunal, et al., G.R. Nos. 189466 and 189506, 612 SCRA 375,
11 February 2010, En Banc [Abad])
Oversight Powers and Functions of Congress
MakalIntal v. COMELEC (Justice Reynato S. Puno’s Separate Concurring Opinion;

ABAKADA Guro Party List v. Secretary Purisima)
Post-enactment measures undertaken by Congress to enhance its understanding of,

and influence over, the legislation it has enacted.
This is intrinsic in the grant of legislative power itself to Congress, and integral to the
system of checks and balances inherent in a democratic system of government.
Categories of Oversight Powers and Functions
1. Legislative Scrutiny
2. Legislative Investigation
3. Legislative Supervision
What is a Legislative Veto?
A disapproval by Congress, or by an oversight committee of Congress, of an

administrative regulation promulgated by an administrative body or agency.
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The Power of Appropriation
No money shall be paid out of the Treasury except in pursuance of an

appropriations made by law. (Section 29 [1], Article VI, 1987 Constitution)
Under the Constitution, the power of appropriation is vested in the Legislature,

subject to the requirement that appropriations bills originate exclusively in the House of
Representatives with the option of the Senate to propose or concur with amendments.
While the budgetary process commences from the proposal submitted by the President to
Congress, it is the latter which concludes the exercise by crafting an appropriation act it may
deem beneficial to the nation, based on its own judgment, wisdom and purposes. Like any
other piece of legislation, the appropriation act may then be susceptible to objection from the
branch tasked to implement it, by way of a Presidential veto. Thereafter, budget execution
comes under the domain of the Executive branch which deals with the operational aspects of
the cycle including the allocation and release of funds earmarked for various projects.
Simply put, from the regulation of fund releases, the implementation of payment schedules
and up to the actual spending of the funds specified in the law, the Executive takes the
wheel. The DBM (Department of Budget and Management) lays down the guidelines for the
disbursement of the fund. This demonstrates the power given to the President to execute
appropriation laws and therefore, to exercise the spending per se of the budget. (Lawyers
against Monopoly and Poverty [LAMP] v. The Secretary of Budget and Management,
G.R. No. 164987, Apr. 24, 2012, En Banc [Mendoza])
The “Pork Barrel” System
Considering petitioners’ submission and in reference to its local concept and legal
history, the Court defines the Pork Barrel System as the collective body of rules and
practices that govern the manner by which lump-sum, discretionary funds, primarily
intended for local projects, are utilized through the respective participations of the
Legislative and Executive branches of government, including its members. The Pork
Barrel System involves two (2) kinds of lump-sum, discretionary funds:
First, there is the Congressional Pork Barrel which is herein defined as a kind of
lump-sum, discretionary fund wherein legislators, either individually or collectively
organized into committees, are able to effectively control certain aspects of the fund’s
utilization through various post-enactment measures and/or practices; and
Second, there is the Presidential Pork Barrel which is herein defined as a kind of
lump-sum, discretionary fund which allows the President to determine the manner of
its utilization. X x x the Court shall delimit the use of such term to refer only to the
Malampaya Funds and the Presidential Social Fund. (Belgica v. Ochoa, G.R. No. 208566,
710 SCRA 1, 105-106, Nov. 19, 2013, En Banc [Perlas-Bernabe])
The “Pork Barrel” System Declared Unconstitutional: Reasons
The Court renders this Decision to rectify an error which has persisted in the
chronicles of our history. In the final analysis, the Court must strike down the Pork Barrel
System as unconstitutional in view of the inherent defects in the rules within which it
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operates. To recount, insofar as it has allowed legislators to wield, in varying gradations,
non-oversight, post-enactment authority in vital areas of budget execution, the system has
violated the principle of separation of powers; insofar as it has conferred unto legislators
the power of appropriation by giving them personal, discretionary funds from which they are
able to fund specific projects which they themselves determine, it has similarly violated the
principle of non-delegability of legislative power; insofar as it has created a system of
budgeting wherein items are not textualized into the appropriations bill, it has flouted the
prescribed procedure of presentment and, in the process, denied the President the
power to veto items; insofar as it has diluted the effectiveness of congressional oversight
by giving legislators a stake in the affairs of budget execution, an aspect of governance
which they may be called to monitor and scrutinize, the system has equally impaired public
accountability; insofar as it has authorized legislators, who are national officers, to
intervene in affairs of purely local nature, despite the existence of capable local institutions, it
has likewise subverted genuine local autonomy; and again, insofar as it has conferred to
the President the power to appropriate funds intended by law for energy-related purposes
only to other purposes he may deem fit as well as other public funds under the broad
classification of “priority infrastructure development projects,” it has once more transgressed
the principle of non-delegability. (Belgica, et al. v. Exec. Sec. Paquito N. Ochoa, et al.,
G.R. No. 208566, 710 SCRA 1, 160-161, Nov. 19, 2013, En Banc [Perlas-Bernabe])
The Power of Augmentation
No law shall be passed authorizing any transfer of appropriations; however,

the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item in the
general appropriations law for their respective offices from savings in other items in
their respective appropriations. (Section 25 [5], Article VI, 1987 Constitution)
Requisites for the valid transfer of appropriated funds under Section 25(5), Article VI
of the 1987 Constitution
The transfer of appropriated funds, to be valid under Section 25(5), Article VI of the
Constitution, must be made upon a concurrence of the following requisites, namely:
(1) There is a law authorizing the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme Court,
and the heads of the Constitutional Commissions to transfer funds within their
respective offices;
(2) The funds to be transferred are savings generated from the appropriations of
their respective offices; and
(3) The purpose of the transfer is to augment an item in the general appropriations
law for their respective offices. (Maria Carolina P. Araullo, et al. v. Benigno
Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En
Banc [Bersamin])
Congressional Investigations
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There are two (2) kinds of congressional investigations, i.e., inquiry in aid of
legislation (Section 21, Article VI, 1987 Constitution); and the question hour (Section 22,
Article VI, 987 Constitution)
Inquiry in Aid of Legislation (Section 21, Article VI, 1987 Constitution)
In Arnault v. Nazareno, the Court held that intrinsic in the grant of legislative power
itself to Congress by the Constitution is the power to conduct inquiries in aid of legislation,
for Congress may not be expected to enact good laws if it will be denied the power
investigate. Note that Arnault was decided in the 1950’s under the 1935 Constitution, and in
that Constitution there was no provision similar to that which is expressly provided in the
present Constitution. Yet, as early as that case, the Court already recognized that this
power is intrinsic in the grant of legislative power itself to Congress by the Constitution.
In Bengzon, Jr. v. Senate Blue Ribbon Committee, two (2) relevant questions were
raised. First, is this power of each House of Congress to conduct inquiries in aid of
legislation absolute, or are there limitations? Second, is this power subject to judicial review,
or is it a political question?
As to the first question, the Court clarified that a mere reading of Section 21, Article
VI of the Constitution will show that the power is not really absolute; in fact there are three (3)
important limitations imposed therein, and these are:
1. The inquiry must be in aid of legislation;

2. It must be conducted in accordance with the duly published rules of procedure of
a House of Congress conducting such inquiry; and
3. The rights of persons appearing in or affected by such inquiry shall be respected.
As to the second, the Court held that since it had already been shown that the power
is not really absolute, in fact, there are important limitations, it follows, therefore, that such is
subject to judicial review especially in view of the expanded power of the Court to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government.
That’s why in that case of Bengzon, Jr., the Court granted the petition for certiorari
and ordered the Senate Blue Ribbon Committee not to further conduct the inquiry since the
Court found that the purpose of said inquiry was not really in aid of legislation; in fact the
purpose was an encroachment on a judicial prerogative.
The Question Hour (Section 22, Article VI, 1987 Constitution)
As explained by the Court in Senate v. Ermita, this question hour is not really a
regular feature of a presidential government, but is merely a borrowed concept from a
parliamentary government.
(PHILCOMSAT Holdings Corporation v. Senate, G.R. No. 180308, June 19, 2012 En
Banc [Perlas-Bernabe])
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The Senate Committees’ power of inquiry relative to PSR No. 455 has been passed
upon and upheld in the consolidated cases of In the Matter of the Petition for Habeas Corpus
of Camilo L. Sabio which cited Article VI, Section 21 of the Constitution.
The Court explained that such conferral of the legislative power of inquiry upon any
committee of Congress must carry with it all powers necessary and proper for its effective
discharge. On this score, the Senate Committee cannot be said to have acted with grave
abuse of discretion amounting to lack or in excess of jurisdiction when it submitted
Committee Resolution No. 312, given its constitutional mandate to conduct legislative
inquiries. Nor can the Senate Committee be faulted for doing so on the very same day that
the assailed resolution was submitted. The wide latitude given to Congress with respect to
these legislative inquiries has long been settled, otherwise, Article VI, Section 21 would be
rendered pointless.
Neri v. Senate Committee on Accountability of Public Officers and Investigations, 564

SCRA 152, Sept. 4, 2008, En Banc (Leonardo-De Castro)
There is a Recognized Presumptive Presidential Communications Privilege
The Court, in the earlier case of Almonte v. Vasquez, affirmed that the presidential
communications privilege is fundamental to the operation of government and inextricably
rooted in the separation of powers under the Constitution. Even Senate v. Ermita reiterated
this concept. There, the Court enumerated the cases in which the claims of executive
privilege was recognized, among them Almonte v. Chavez, Chavez v. Presidential
Commission on Good Government (PCGG), and Chavez v. PEA. The Court articulated in
these cases that “there are certain types of information which the government may withhold
from the public,” that there is a “government privilege against public disclosure with respect
to state secrets regarding military, diplomatic and other national security matters”; and that
“the right to information does not extend to matters recognized as ‘privileged
information’ under the separation of powers, by which the Court meant Presidential
conversations, correspondences, and discussions in closed-door Cabinet meetings.
Xxx
The constitutional infirmity found in the blanket authorization to invoke executive

privilege granted by the President to executive officials in Sec. 2(b) of E.O. No. 464 does not
obtain in this case.
In this case, it was the President herself, through Executive Secretary Ermita, who
invoked executive privilege on a specific matter involving an executive agreement between
the Philippines and China, which was the subject of the three (3) questions propounded to
petitioner Neri in the course of the Senate Committees’ investigation. Thus, the factual
setting of this case markedly differs from that passed upon in Senate v. Ermita.
Moreover x x x the Decision in this present case hews closely to the ruling in Senate
v. Ermita, to wit:
Executive Privilege
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The phrase “executive privilege is not new in this jurisdiction. It has
been used even prior to the promulgation of the 1986 Constitution. Being of
American origin, it is best understood in light of how it has been defined and used in
the legal literature of the United States.
Schwartz defines executive privilege as “the power of the Government to

withhold information from the public, the courts, and the Congress.” Similarly,
Rozell defines it as “the right of the President and high-level executive branch officers
to withhold information from Congress, the courts, and ultimately the public.” X x x In
this jurisdiction, the doctrine of executive privilege was recognized by this Court in
Almonte v. Vasquez. Almonte used the term in reference to the same privilege
subject of Nixon. It quoted the following portion of the Nixon decision which explains
the basis for the privilege:
“The expectation of a President to the confidentiality of his

conversations and correspondences, like the claim of confidentiality of
judicial deliberations, for example, he has all the values to which we accord
deference for the privacy of all citizens and, added to those values, is the
necessity for protection of the public interest in candid, objective, and even
blunt or harsh opinions in Presidential decision-making. A President and
those who assist him must be free to explore alternatives in the process of
shaping policies and making decisions and to do so in a way many would be
unwilling to express except privately. These are the considerations
justifying s presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of government and inextricably
rooted in the separation of powers under the Constitution x x x.”
Clearly, therefore, even Senate v. Ermita adverts to “a presumptive privilege for

Presidential communication,” which was recognized early in Almonte v. Vasquez. To
construe the passage in Senate v. Ermita to x x x referring to the non-existence of a
“presumptive authorization” of an executive official, to mean that the “presumption” in favor
of executive privilege “inclines heavily against executive secrecy and in favor of disclosure”
is to distort the ruling in the Senate v. Ermita and make the same engage in self-
contradiction.
Senate v. Ermita expounds on the constitutional underpinning of the relationship

between the Executive Department and the Legislative Department to explain why there
should be no implied authorization or presumptive authorization to invoke executive privilege
by the President’s subordinate officials, as follows:
“When Congress exercises its power of inquiry, the only way for
department heads to exempt themselves therefrom is by a valid claim of
privilege. They are not exempt by the mere fact that they are department heads.
Only one executive official may be exempted from this power – the President on
whom executive power is vested, hence, beyond the reach of Congress except
through the power of impeachment. It is based on he being the highest official of the
executive branch, and the due respect accorded to a co-equal branch of government
which is sanctioned by a long-standing custom.”
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Thus, if what is involved is the presumptive privilege of presidential communications
when invoked by the President on a matter clearly within the domain of the Executive, the
said presumption dictates that the same be recognized and be given preference or priority,
in the absence of proof of a compelling or critical need for disclosure by the one assailing
such presumption. Any construction to the contrary will render meaningless the presumption
accorded by settled jurisprudence in favor of executive privilege. In fact, Senate v. Ermita
reiterates jurisprudence citing “the considerations justifying a presumptive privilege for
Presidential communications.”
The Electoral Tribunals in Congress
The House of Representatives Electoral Tribunal (HRET) has Jurisdiction over

Election Contests involving Party-List Representatives
It is for the HRET to interpret the meaning of this particular qualification of a nominee
– the need for him or her to be a bona fide member or a representative of his party-list
organization – in the context of the facts that characterize Abayon and Palparan’s relation to
Aangat Tayo and Bantay, respectively, and the marginalized and underrepresented interests
that they presumably embody.
Section 17, Article VI of the Constitution provides that the HRET shall be the sole
judge of all contests relating to, among other things, the qualifications of the members of the
House of Representatives. Since party-list nominees are “elected members” of the House of
Representatives, the HRET has jurisdiction to hear and pass upon their qualifications. By
analogy with the cases of district representatives, once the party or organization of the party-
list nominee has been proclaimed and the nominee has taken his oath and assumed office
as member of the House of Representatives, the COMELEC’s jurisdiction over election
contests relating to his qualification ends and the HRET’s own jurisdiction begins. (Daryl
Grace J. Abayon v. The Honorable House of Representatives Electoral Tribunal, et al., G.R.
Nos. 189466 and 189506, 612 SCRA 375, 11 February 2010, En Banc [Abad])
The Executive Department (Article VII, 1987 Constitution)
The executive power shall be vested in the President of the Philippines.

(Section 1, Article VII, 1987 Constitution)
It has already been established that there is one repository of executive powers, and
that is the President of the Republic. This means that when Section 1, Article VII of the
Constitution speaks of executive power, it is granted to the President and no one else.
Corollarily, it is only the President, as Chief Executive, who is authorized to exercise
emergency powers as provided under Section 23, Article VI, of the Constitution, as well as
what became known as the calling-out powers under Section 18, Article VII thereof. (Jamar
Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En Banc [Sereno, CJ]),
The duty to protect the State and its people must be carried out earnestly and
effectively throughout the whole territory of the Philippines in accordance with constitutional
provision on national territory. Hence, the President of the Philippines, as the sole repository
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of executive power, is the guardian of the Philippine archipelago, including all the islands
and waters embraced therein and all other territories over which the Philippines and
sovereignty or jurisdiction. X x x
To carry out this important duty, the President is equipped with authority over the
Armed Forces of the Philippines (AFP), which is the protector of the people and the state. X
x x. In addition, the Executive is constitutionally empowered to maintain peace and order,
protect life, liberty, and property, and promote the general welfare. In recognition of these
powers, Congress has specified that the President must oversee, ensure, and reinforce our
defensive capabilities against external and internal threats and, in the same vein, ensure that
the country is adequately prepared for all national and local emergencies arising from natural
and man-made disasters.
To be sure, this power is limited by the Constitution itself. X x x (Rene A.V.

Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No. 212426,
Jan. 12, 2016, En Banc [Sereno, CJ])
The Faithful Execution Clause
This Court has interpreted the faithful execution clause as an obligation imposed on
the President, and not a separate grant of power. Section 17, Article VII of the Constitution,
expresses this duty in no uncertain terms and includes it in the provision regarding the
President’s power of control over the executive department x x x.
Xxx
Hence, the duty to faithfully execute the laws of the land is inherent in executive
power and is intimately related to the other executive functions. X x x
These obligations are as broad as they sound, for a President cannot function with
crippled hands, but must be capable of securing the rule of law within all territories of the
Philippine Islands and be empowered to do so within constitutional limits. Congress cannot,
for instance, limit or take over the President’s power to adopt implementing rules and
regulations for a law it has enacted.
More important, this mandate is self-executory by virtue of its being inherently

executive in nature. X x x
The import of this characteristic is that the manner of the President’s execution of the
law, even if not expressly granted by the law, is justified by necessity and limited only by law,
since the President must “take necessary and proper steps to carry into execution the law.”
Xxx
In light of this constitutional duty, it is the President’s prerogative to do whatever is

legal and necessary for Philippine defense interests. It s no coincidence that the
constitutional provision on the faithful execution clause was followed by that on the
President’s commander-in-chief powers, which are specifically granted during extraordinary
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events of lawless violence, invasion, or rebellion. And this duty of defending the country is
unceasing, even in times when there is no state of lawless violence, invasion, or rebellion.
At such times, the President has full powers to ensure the faithful execution of the laws.
It would therefore be remiss for the President and repugnant to the faithful-execution
clause of the Constitution to do nothing when the call of the moment requires increasing the
military’s defensive capabilities, which could include forging alliances with states that hold a
common interest with the Philippines or bringing an international suit against an offending
state.
Xxx
This approach of giving utmost deference to presidential initiatives in respect of

foreign affairs is not novel to the Court. The President’s act of treating EDCA as an
executive agreement is not the principal power being analyzed x x x. Rather, the preliminary
analysis is in reference to the expansive power of foreign affairs. We have long treated this
power as something the Courts must not unduly restrict. X x x
Xxx
Understandably, this Court must view the instant case with the same perspective and
understanding, knowing full well the constitutional and legal repercussions of any judicial
overreach. (Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et
al., G.R. No. 212426, Jan. 12, 2016, En Banc [Sereno, CJ])
The Doctrine of Qualified Political Agency
Under this doctrine, which recognizes the establishment of a single executive, all
executive and administrative organizations are adjuncts of the Executive Department, the
heads of the various executive departments are assistants and agents of the Chief Executive,
and, except in cases where the Chief Executive is required by the Constitution or law to act
in person or the exigencies of the situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are performed by and through
the executive departments, and the acts of the Secretaries of such departments, performed
and promulgated in the regular course of business, are, unless disapproved or reprobated by
the Chief Executive presumably the acts of the Chief Executive. (Resident Marine Mammals
of the Protected Seascape Tanon Strait, et al. v. Secretary Angelo Reyes, et al., GR Nos.
180771 and 181527, April 21, 2015, En Banc [Leonardo-De Castro])
Angelo Reyes, et al., G.R. No. 180771, April 21, 2015, En Banc (Leonardo-De Castro)
The constitutionality of the Service Contract Agreement for the large-scale

exploration, development and utilization of oil and petroleum gasses in Tanon Strait entered
into between a Japanese petroleum corporation and the Philippine Government was
challenged in this case. The one who signed this Agreement on behalf of the Philippine
government was the Secretary of Energy. Was the Agreement valid?
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The SC said “No.” It violated Section 2, 4th par., Article XII of the Constitution
(National Economy and Patrimony) which states that it is the President who should enter into
that kind of contract with foreign corporations. Public respondents, in trying to justify their
action, however, invoked the doctrine of qualified political agency since the Secretary of
Energy is an alter-ego of the President. The SC clarified that this doctrine of qualified
political agency may not be validly invoked if it is the Constitution itself that provides that the
act should be performed by the President no less, especially since what are involved are
natural resources.
The Appointing Power of the President
Not All Officers Appointed by the President under Section 16, Article VII of the 1987
Constitution Shall Require Confirmation by the Commission on Appointments
Conformably, as consistently interpreted and ruled in the leading case of Sarmiento

III v. Mison, and in the subsequent cases of Bautista v. Salonga, Quintos-Deles v.
Constitutional Commission, and Calderon v. Carale, under Section 16, Article VII, of the
Constitution, there are four groups of officers of the government to be appointed by the
President:
First, the heads of the executive departments, ambassadors, other public

ministers and consuls, officers of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are vested in him in this Constitution;
Second, all other officers of the Government whose appointments are not
otherwise provided for by law;
Third, those whom the President may be authorized by law to appoint;
Fourth, officers lower in rank whose appointments the Congress may by law
vest in the President alone.
It is well-settled that only presidential appointees belonging to the first group require
the confirmation by the Commission on Appointments. (Manalo v. Sistoza, 312 SCRA 239,
Aug. 11, 1999, En Banc [Purisima])
The Nature of an Ad Interim Appointment
An ad interim appointment is a permanent appointment because it takes effect

immediately and can no longer be withdrawn by the President once the appointee has
qualified into office. The fact that it is subject to confirmation by the Commission on
Appointments does not alter its permanent character. The Constitution itself makes an ad
interim appointment permanent in character by making it effective until disapproved by the
Commission on Appointments or until the next adjournment of Congress. X x x Thus, the ad
interim appointment remains effective until such disapproval or next adjournment, signifying
that it can no longer be withdrawn or revoked by the President.
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Xxx
More than half a century ago, this Court had already ruled that an ad interim
appointment is permanent in character. In Summers v. Ozaeta, decided on October 25,
1948, we held that:
“x x x an ad interim appointment is one made in pursuance of paragraph (4), Section

10, Article VII of the Constitution, which provides that the ‘President shall have the
power to make appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress.’ It is an appointment
permanent in nature, and the circumstance that it is subject to confirmation by the
Commission on Appointments does not alter its permanent character. An ad interim
appointment is disapproved certainly for a reason other than that its provisional
period has expired. Said appointment is of course distinguishable from an ‘acting’
appointment which is merely temporary, good until another permanent appointment
is issued.”
The Constitution imposes no condition on the effectivity of an ad interim appointment,

and thus an ad interim appointment takes effect immediately. The appointee can at once
assume office and exercise, as a de jure officer, all the powers pertaining to the office. X x x
Thus, the term “ad interim appointment”, as used in letters of appointment signed by
the President, means a permanent appointment made by the President in the meantime that
Congress is in recess. It does not mean a temporary appointment that can be withdrawn or
revoked at any time. The term, although not found in the text of the Constitution, has
acquired a definite legal meaning under Philippine jurisprudence. The Court had again
occasion to explain the nature of an ad interim appointment in the more recent case of
Marohombsar v. Court of Appeals, where the Court stated:
“We have already mentioned that an ad interim appointment is not descriptive of the
nature of the appointment, that is, it is not indicative of whether the appointment is
temporary or in an acting capacity, rather it denotes the manner in which the
appointment was made. In the instant case, the appointment extended to private
respondent by then MSU President Alonto, Jr. was issued without condition nor
limitation as to tenure. The permanent status of private respondent’s appointment as
Executive Assistant II was recognized and attested to by the Civil Service
Commission Regional Office No. 12. Petitioner’s submission that private
respondent’s ad interim appointment is synonymous with a temporary appointment
which could be validly terminated at any time is clearly untenable. Ad interim
appointments are permanent appointment but their terms are only until the Board
disapproves them.”
An ad interim appointee who has qualified and assumed office becomes at that
moment a government employee and therefore part of the civil service. He enjoys the
constitutional protection that “[n]o officer or employee in the civil service shall be removed or
suspended except for cause provided by law.” (Section 2[3], Article IX-B of the Constitution)
Thus, an ad interim appointment becomes complete and irrevocable once the appointee has
qualified into office. X x x Once an appointee has qualified, he acquires a legal right to the
office which is protected not only by statute but also by the Constitution. He can only be
removed for cause, after notice and hearing, consistent with the requirements of due
process. (Matibag v. Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])
Limitations on the Appointing Power of the President

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Two months immediately before the next presidential elections and up to the
end of his term, a President or Acting President shall not make appointments, except
temporary appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety. (Section 15, Article VII, 1987
Constitution)
In Re: Honorable Mateo Valenzuela and Placido Vallarta
De Castro v. Judicial and Bar Council
The Calling-out Power of the President as Commander-in-Chief of the Armed Forces
While the President is still a civilian, Article II, Section 3 of the Constitution mandates
that civilian authority is, at all times, supreme over the military, making the civilian president
the nation’s supreme military leader. The net effect of Article II, Section 3, when read with
Article VII, Section 18, is that a civilian President is the ceremonial, legal and administrative
head of the armed forces. The Constitution does not require that the President must be
possessed of military training and talents, but as Commander-in-Chief, he has the power to
direct military operations and to determine military strategy. Normally, he would be expected
to delegate the actual command of the armed forces to military experts, but the ultimate
power is his. (Jamar Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En
Banc [Sereno, CJ])
The Calling out Power is exclusive to the President
In Jamar Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En
Banc (Sereno, CJ), the Court held:
Given the foregoing, Governor Tan is not endowed with the power to call upon the
armed forces at his own bidding. In issuing the assailed proclamation, Governor Tan
exceeded his authority when he declared a state of emergency and called upon the Armed
Forces, the police, and his own civilian Emergency Force. The calling-out powers
contemplated under the Constitution is exclusive to the President. An exercise by another
official, even if he is the local chief executive, is ultra vires, and may not be justified by the
invocation of Section 465 of the Local Government Code.
Is the President’s power to call out the armed forces as their Commander-in-Chief in
order to prevent or suppress lawless violence, invasion or rebellion subject to judicial
review, or is it a political question?
When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in his
wisdom. This is clear from the intent of the framers and from the text of the Constitution
itself. The Court, thus, cannot be called upon to overrule the President's wisdom or
substitute its own. However, this does not prevent an examination of whether such power
was exercised within permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion. In view of the constitutional intent to give the
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President full discretionary power to determine the necessity of calling out the armed forces,
it is incumbent upon the petitioner to show that the President's decision is totally bereft of
factual basis. The present petition fails to discharge such heavy burden as there is no
evidence to support the assertion that there exists no justification for calling out the armed
forces. There is, likewise, no evidence to support the proposition that grave abuse was
committed because the power to call was exercised in such a manner as to violate the
constitutional provision on civilian supremacy over the military. In the performance of this
Court's duty of “purposeful hesitation” before declaring an act of another branch as
unconstitutional, only where such grave abuse of discretion is clearly shown shall the Court
interfere with the President's judgment. To doubt is to sustain. (Integrated Bar of the
Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc
[Kapunan])
The Pardoning Power of the President
Except in cases of impeachment, or as otherwise provided in this Constitution,

the President may grant reprieves, commutations, and pardons, and remit fines and
forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of all the
Members of the Congress. (Section 19, 1987 Constitution)
Was the Pardon granted to former President Estrada an Absolute Pardon?
Former President Estrada was granted an absolute pardon that fully restored all his
civil and political rights, which naturally includes the right to seek public office. The wording
of the pardon extended to former President Estrada is complete, unambiguous, and
unqualified. It is likewise unfettered by Articles 36 and 41 of the Revised Penal Code. The
only reasonable, objective, and constitutional interpretation of the language of the pardon is
that the same in fact conforms to Articles 36 and 41 of the Revised Penal Code. (Atty. Alicia
Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015, En Banc [Leonardo-De
Castro])
The 1987 Constitution specifically Section 19 of Article VII and Section 5 of Article IX-
C, provides that the President of the Philippines possesses the power to grant pardons,
along with other acts of executive clemency.
It is apparent that the only instances in which the President may not extend pardon
remain to be: (1) impeachment cases; (2) cases that have not yet resulted in a final
conviction; and (3) cases involving violations of election laws, rules and regulations in which
there was no favorable recommendation coming from the COMELEC. Therefore, it can be
argued that any act of Congress by way of statute cannot operate to delimit the pardoning
power of the President.
It is unmistakably the long-standing position of this Court that the exercise of the
pardoning power is discretionary in the President and may not be interfered with by
Congress or the Court, except only when it exceeds the limits provided for by the
Constitution.
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This doctrine of non-diminution or non-impairment of the President’s power of pardon
by acts of Congress, specifically through legislation, was strongly adhered to by an
overwhelming majority of the framers of the 1987 Constitution when they finally rejected a
proposal to carve out an exception from the pardoning power of the President in the form of
“offenses involving graft and corruption” that would be enumerated and defined by Congress
through the enactment of a law. (Atty. Alicia Risos-Vidal v. COMELEC, G.R. No. 206666,
January 21, 2015, En Banc [Leonardo-De Castro])
The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the
Revised Penal Code cannot, in any way, serve to abridge or diminish the exclusive power
and prerogative of the President to pardon persons convicted of violating penal laws.
Xxx
A rigid and inflexible reading of the above provisions of law is unwarranted,

especially so if it will defeat or unduly restrict the power of the President to grant executive
clemency.
It is well-entrenched in this jurisdiction that where the words of a statute are clear,
plain, and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation. Verba legis non est recedendum. From the words of a statute
there should be no departure (Republic v. Camacho, G.R. No. 185604, June 13, 2013, 698
SCRA 380, 398). It is this Court’s firm view that the phrase in the presidential pardon at
issue which declares that former President Estrada “is hereby restored to his civil and
political rights” substantially complies with the requirement of express restoration.
Xxx
For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in
a way that will give full effect to the executive clemency granted by the President, instead of
indulging in an overly strict interpretation that may serve to impair or diminish the import of
the pardon which emanated from the Office of the President and duly signed by the Chief
Executive himself/herself. The said codal provisions must be construed to harmonize the
power of Congress to define crimes and prescribe penalties for such crimes and the power
of the President to grant executive clemency. All that said provisions impart is that the
pardon of the principal penalty does not carry with it the remission of the accessory penalties
unless the President expressly includes said accessory penalties in the pardon. It still
recognizes the Presidential prerogative to grant executive clemency and, specifically, to
decide to pardon the principal penalty while excluding its accessory penalties or to pardon
both. Thus, Articles 36 and 41 only clarify the effect of the pardon so decided upon by the
President on the penalties imposed in accordance with law.
A close scrutiny of the text of the pardon to former President Estrada shows that both
the principal penalty of reclusion perpetua and its accessory penalties are included in the
pardon. The first sentence refers to the executive clemency extended to former President
Estrada who was convicted by the Sandiganbayan of plunder and imposed a penalty of
reclusion perpetua. The latter is the principal penalty pardoned which relieved him of
imprisonment. The sentence that followed, which states that “(h)e is hereby restored to his
civil and political rights,” expressly remitted the accessory penalties that attached to the
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principal penalty of reclusion perpetua. Hence, even if we apply Articles 36 and 41 of the
Revised Penal Code, it is indubitable from the text of the pardon that the accessory penalties
of civil interdiction and perpetual absolute disqualification were expressly remitted together
with the principal penalty of reclusion perpetua.
In this jurisdiction, the right to seek public elective office is recognized by law as
falling under the whole gamut of civil and political rights.
Xxx
No less than the International Covenant on Civil and Political Rights, to which the
Philippines is a signatory, acknowledges the existence of said rights. X x x
Recently, in Sobejana-Condon v. Commission on Elections (G.R. No. 198742,

August 10, 2012, 678 SCRA 267, 292), the Court unequivocally referred to the right to seek
public elective office as a political right x x x.
Thus, from both law and jurisprudence, the right to seek public elective office is
unequivocally considered as a political right. Hence, the Court reiterates its earlier
statement that the pardon granted to former President Estrada admits no other interpretation
other than to mean that, upon acceptance of the pardon granted to him, he regained his
FULL civil and political rights – including the right to seek elective office. (Atty. Alicia
Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015, En Banc [Leonardo-De
Castro])
Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e.,
“[w]hereas, Joseph Ejercito Estrada has publicly committed to no longer seek any elective
position or office,” neither makes the pardon conditional, nor militates against the conclusion
that former President Estrada’s rights to suffrage and to seek public elective office have
been restored. This is especially true as the pardon itself does not explicitly impose a
condition or limitation, considering the unqualified use of the term “civil and political rights” as
being restored.
Jurisprudence educates that a preamble is not an essential part of an act as it is an

introduction or preparatory clause that explains the reasons for the enactment, usually
introduced by the word “whereas.” (People v. Balasa, 356 Phil. 362, 396 [1998]) Whereas
clauses do not form part of a statute because, strictly speaking, they are not part of the
operative language of the statute (Llamado v. Court of Appeals, 256 Phil. 328, 339 [1989]).
In this case, the whereas clause at issue is not an integral part of the decree of the pardon,
and therefore, does not by itself alone operate to make the pardon conditional or to make its
effectivity contingent upon the fulfillment of the aforementioned commitment nor to limit the
scope of the pardon. (Atty. Alicia Risos-Vidal v. COMELEC, G.R. No. 206666, January
21, 2015, En Banc [Leonardo-De Castro])
The Diplomatic and Treaty-Making Power of the President
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 21,
Article VII, 1987 Constitution)
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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 25,
Article XVIII, 1987 Constitution)
The Power and Duty to Conduct Foreign Relations
The President also carries the mandate of being the sole organ in the conduct of
foreign relations. Since every state has the capacity to interact with and engage in relations
with other sovereign states, it is but logical that every state must vest in an agent the
authority to represent its interests to those other sovereign states.
Xxx
The role of the President in foreign affairs is qualified by the Constitution in that the
Chief Executive must give paramount importance to the sovereignty of the nation, the
integrity of its territory, its interest, and the right of the sovereign Filipino people to self-
determination. X x x(Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N.
Ochoa, Jr., et al., G.R. No. 212426, Jan. 12, 2016, En Banc [Sereno, CJ])
The Relationship between the Two Major Presidential Functions and the Role of the
Senate
Clearly, the power to defend the State and to act as its representative in the
international sphere inheres in the person of the President. This power, however, does not
crystallize into absolute discretion to craft whatever instrument the Chief Executive so
desires. As previously mentioned, the Senate has a role in ensuring that treaties or
international agreements the President enters into, as contemplated in Section 21 of Article
VII of the Constitution, obtain the approval of two-thirds of its members.
Xxx
The responsibility of the President when it comes to treaties and international

agreements under the present Constitution is therefore shared with the Senate. X x x (Rene
A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No.
212426, Jan. 12, 2016, En Banc [Sereno, CJ])
Who has the Power to Ratify a Treaty?
In our jurisdiction, the power to ratify is vested in the President and not, as commonly
believed, in the legislature. The role of the Senate is limited only to giving or withholding its
consent, or concurrence, to the ratification. (BAYAN [Bagong Alyansang Makabayan] v.
Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])
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With respect to the Visiting Forces Agreement (VFA) entered into between the
Philippines and the USA in 1998, Section 25, Article XVIII of the Constitution applies, it
being a special provision
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.
Xxx
On the whole, the VFA is an agreement which defines the treatment of United States
troops and personnel visiting the Philippines. It provides for the guidelines to govern such
visits of military personnel, and further defines the rights of the United States and the
Philippine government in the matter of criminal jurisdiction, movement of vessels and aircraft,
importation and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving
foreign military bases, troops, or facilities, should apply in the instant case. To a certain
extent and in a limited sense, however, the provisions of Section 21, Article VII will find
applicability with regard to the issue and for the sole purpose of determining the number of
votes required to obtain the valid concurrence of the Senate x x x.
It is a finely-imbedded principle in statutory construction that a special provision or

law prevails over a general one. Lex specialis derogat generali. (BAYAN [Bagong
Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570 and
Companion Cases, Oct. 10, 2000, 342 SCRA 449, 481-492, En Banc [Buena])
Despite the President’s roles as defender of the State and sole authority in foreign
relations, the 1987 Constitution expressly limits his ability in instances when it involves the
entry of foreign military bases, troops or facilities. The initial limitation is found in Section 21
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of the provisions on the Executive Department x x x. The specific limitation is given by
Section 25 of the Transitory Provisions x x x.
It is quite plain that the Transitory Provisions of the 1987 Constitution intended to add
to the basic requirements of a treaty under Section 21 of Article VII. This means that both
provisions must be read as additional limitations to the President’s overarching executive
functions in matters of defense and foreign relations. (Rene A.V. Saguisag, et al. v.
Executive Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12, 2016, En
Banc [Sereno, CJ])
The Power of the President to Enter into Executive Agreements
The power of the President to enter into binding executive agreements without
Senate concurrence is already well-established in this jurisdiction. That power has been
alluded to in our present and past Constitutions, in various statutes, in Supreme Court
decisions, and during the deliberations of the Constitutional Commission. X x x
As the sole organ of our foreign relations, and the constitutionally assigned chief
architect of our foreign policy, the President is vested with the exclusive power to conduct
and manage the country’s interface with other states and governments. Being the principal
representative of the Philippines, the Chief Executive speaks and listens for the nation;
initiates, maintains, and develops diplomatic relations with other states and governments;
negotiates and enters into international agreements; promotes trade, investments, tourism
and other economic relations; and settles international disputes with other states.
As previously discussed, this constitutional mandate emanates from the inherent

power of the President to enter into agreements with other stats, including the prerogative to
conclude binding executive agreements that do not require further Senate concurrence. The
existence of this presidential power is so well-entrenched that Section 5(2)(a), Article VIII of
the Constitution, even provides for a check on its exercise. X x x
In Commissioner of Customs v. Eastern Sea Trading (113 Phil. 333 [1961]) executive
agreements are defined as “international agreements embodying adjustments of detail
carrying out well-established national polices and traditions and those involving
arrangements of a more or less temporary nature.” In Bayan Muna v. Romulo, this Court
further clarified that executive agreements can cover a wide array of subjects that have
various scopes and purposes. They are no longer limited to the traditional subjects that are
usually covered by executive agreements as identified in Eastern Sea Trading. X x x
One of the distinguishing features of executive agreements is that their validity and
effectivity are not affected by a lack of Senate concurrence. This distinctive feature was
recognized as early as in Eastern Sea Trading (1961) x x x (Rene A.V. Saguisag, et al. v.
Executive Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12, 2016, En
Banc [Sereno, CJ])
Discuss the Binding Effect of Treaties and Executive Agreements in International Law.
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In 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])
The Enhanced Defense Cooperation Agreement (EDCA)
The fear that EDCA is a reincarnation of the U.S. bases so zealously protested by
noted personalities in Philippine history arises not so much from xenophobia but from a
genuine desire for self-determination, nationalism, and above all a commitment to ensure the
independence of the Philippine Republic from any foreign domination.
Mere fears, however, cannot curtail the exercise by the President of the Philippines
of his Constitutional prerogatives in respect of foreign affairs. They cannot cripple him when
he deems that additional security measures are made necessary by the times. X x x In the
future, the Philippines must navigate a world in which armed forces fight with increasing
sophistication in both strategy and technology, while employing asymmetric warfare and
remote weapons.
Additionally, our country is fighting a most terrifying enemy: the backlash of Mother
Nature. X x x
In order to keep the peace in its archipelago in this region of the world, and to sustain
itself at the same time against the destructive forces of nature, the Philippines will need
friends. Who they are, and what form the friendships will take, are for the President to
decide. The only restriction is what the Constitution itself prohibits. It appears that this
overarching concern for balancing constitutional requirements against the dictates of
necessity was what led to EDCA.
As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains

consistent with existing laws and treaties that it purports to implement. (Rene A.V.
Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., G.R. No. 212426,
January 12, 2016, En Banc [Sereno, CJ])
Powers relative to Appropriation measures
The President shall submit to the Congress within thirty days from the
opening of every regular session, as the basis of the general appropriations bill, a
budget of expenditures and sources of financing, including receipts from existing and
proposed revenue measures. (Sec. 22, Art. VII, 1987 Constitution)
The Congress may not increase the appropriations recommended by the

President for the operation of the Government as specified in the budget. The form,
content, and manner of preparation of the budget shall be prescribed by law. (Sec.
25[1], Art. VI, 1987 Constitution)
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Emergency Power
In times of war or other national emergency, the Congress may, by law,

authorizing the President, for a limited period and subject to such restrictions as it
may prescribe, to exercise powers necessary and proper to carry out a declared
national policy. Unless sooner withdrawn by resolution of the Congress, such
powers shall cease upon the next adjournment thereof. (Section 23[2], Article VI,
1987 Constitution)
The Judicial Department (Article VIII, 1987 Constitution)
The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government. (Section 1, Article VIII, 1987 Constitution)
Thus, the Constitution vests judicial power in the Court and in such lower courts as
may be established by law. In creating a lower court, Congress concomitantly determines
the jurisdiction of that court, and that court, upon its creation, becomes by operation of the
Constitution one of the repositories of judicial power. However, only the Court is a
constitutionally created court, the rest being created by Congress in its exercise of the
legislative power.
The Constitution states that judicial power includes the duty of the courts of justice
not only “to settle actual controversies involving rights which are legally demandable and
enforceable” but also “to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.” It has thereby expanded the concept of judicial power,
which up to then was confined to its traditional ambit of settling actual controversies
involving rights that were legally demandable and enforceable.
The background and rationale of the expansion of judicial power under the 1987
Constitution were laid out during the deliberations of the 1986 Constitutional Commission by
Commissioner Roberto R. Concepcion (a former Chief Justice of the Philippines) in his
sponsorship of the proposed provisions on the Judiciary.
Our previous Constitutions equally recognized the extent of the power of judicial
review and the great responsibility of the Judiciary in maintaining the allocation of powers
among the three great branches of the Government. (Maria Carolina P. Araullo, et al. v.
Benigno Simeon C. Aquino III, et al. G.R. No., 209287, July 1, 2014, En Banc
[Bersamin])
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Judicial Power and the Political Question Doctrine
The Political Question Doctrine
Baker v. Carr remains the starting point for analysis under the political question
doctrine.
In Tanada v. Cuenco, we held that political questions refer “to those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or executive
branch of the government. It is concerned with issues dependent upon the wisdom, not
legality of a particular measure.” (Vinuya, et al. v. The Honorable Executive Secretary
Alberto G. Romulo, et al., G.R. No. 162230, April 28. 2010, En Banc [Del Castillo])
Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No.
225973, November 8, 2016, En Banc (Peralta)
The petitioners failed to show that President Duterte committed grave abuse of
discretion when he allowed the burial of former President Ferdinand E. Marcos at the
“Libingan ng mga Bayani (LNMB).”
Held:
In sum, there is no clear constitutional or legal basis to hold that there was a
grave abuse of discretion amounting to lack or excess of jurisdiction which would
justify the Court to interpose its authority to check and override an act entrusted to
the judgment of another branch. Truly, the President’s discretion is not totally
unfettered. X x x. At bar, President Duterte x x x acted within the bounds of the law
and jurisprudence, Notwithstanding the call of human rights advocate, the Court
must uphold what is legal and just. And that is not to deny Marcos of his rightful
place at the LNMB. For even the Framers of our Constitution intend that full respect
for human rights is available at any stage of a person’s development, from the time
he or she becomes a person to the time he or she leaves this earth.
There are certain things that are better left for history – not this Court – to
adjudge. The Court could only do so much in accordance with clearly established
rules and principles. Beyond that, it is ultimately for the people themselves, as the
sovereign, to decide, a task that may require the better perspective that the passage
of time provides.
Vinuya, et. al. v. The Honorable Executive Secretary Alberto G. Romulo, et. al., G.R. No.
162230, April 28. 2010, En Banc (Del Castillo)
The SC may not compel the President to take up the cause of the petitioners
(comfort women during World War II) against Japan. That will violate the doctrine of
separation of powers for that is a political question – a question in regard to which full
discretionary authority has been delegated by the Constitution to the President as the chief
architect of our foreign policy and as the spokesman of the nation in matters of foreign
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relations. The most that the SC may do is to exhort her, to urge her to take up petitioners
cause – but not to compel her.
In matters of foreign policy, the Executive and the Judiciary must speak with just one
voice to avoid serious embarrassments and strained relations with foreign countries.
Elaborating, the Court held:
“To be sure, not all cases implicating foreign relations present political
questions, and courts certainly possess the authority to construe or invalidate treaties
and executive agreements. However, the question whether the Philippine
government should espouse claims of its nationals against a foreign government is a
foreign relations matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In this case, the Executive
Department has already decided that it is to the best interest of the country to waive
all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951.
The wisdom of such decision is not for the courts to question.
“In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme

Court held that ‘[t]he President is the sole organ of the nation in its external relations,
and its sole representative with foreign relations.’
“It is quite apparent that if, in the maintenance of our international relations,
embarrassment – perhaps serious embarrassment – is to be avoided and success
for our aims achieved, congressional legislation which is to be made effective
through negotiation and inquiry within the international field must often accord to the
President a degree of discretion and freedom from statutory restriction which would
not be admissible where domestic affairs alone involved. Moreover, he, not
Congress, has the better opportunity of knowing the conditions which prevail in
foreign countries, and especially is this true in times of war. He has his confidential
sources of information. He has his agents in the form of diplomatic, consular and
other officials.
“X x x
“The Executive Department has determined that taking up petitioners’ cause

would be inimical to our country’s foreign policy interests, and could disrupt our
relations with Japan, thereby creating serious implications for stability in this region.
For us to overturn the Executive Department’s determination would mean an
assessment of the foreign policy judgments by a coordinate political branch to which
authority to make that judgment has been constitutionally committed.
Requisites for a Proper Exercise by the Court of its Power of Judicial Review
The prevailing rule in constitutional litigation is that no question involving the

constitutionality or validity of a law or governmental act may be heard and decided by the
Court unless there is compliance with the legal requisites for judicial inquiry, namely: (a)
there must be an actual case or controversy calling for the exercise of judicial power; (b)
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the person challenging the act must have the standing to question the validity of the subject
act or issuance; (c) the question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the very lis mota of the case. Of
these requisites, case law states that the first two are the most important. (Belgica, et al. v.
Exec. Sec. Paquito N. Ochoa, et al., G.R. No. 208566, 710 SCRA 1, 89, Nov. 19, 2013,
En Banc [Perlas-Bernabe])
It is well-settled that no question involving the constitutionality or validity of a law or

governmental act may be heard and decided by the Court unless the following requisites for
judicial inquiry are present: (a) there must be an actual case of controversy calling for the
exercise of judicial power; (b) the person challenging the act must have the standing to
question the validity of the subject or issuance; (c) the question of constitutionality must be
raised at the earliest opportunity; and (d) the issue of constitutionality must be the very lis
mota of the case. In this case, the absence of the first two, which are the most essential,
renders the discussion of the last two superfluous. (Saturnino C. Ocampo, et al. v. Rear
Admiral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016, En Banc
[Peralta])
The Meaning of an “Actual Case or Controversy”
An “actual case or controversy” is one which involves a conflict of legal rights, an

assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a
hypothetical or abstract difference or dispute. There must be contrariety of legal rights that
can be interpreted and enforced on the basis of existing law or jurisprudence. Related to the
requisite of an actual case or controversy is the requisite of “ripeness,” which means that
something had been accomplished or performed by either branch before a court may come
into the picture, and the petitioner must allege the existence of an immediate or threatened
injury to itself as a result of the challenged action. Moreover, the limitation on the power of
judicial review to actual cases and controversies carries the assurance that the courts will
not intrude into areas committed to the other branches of the government. Those areas
pertain to questions which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated to
the legislative or executive branch of the government. As they are concerned with questions
of policy and issues dependent upon the wisdom, not legality of a particular measure,
political questions used to be beyond the ambit of judicial review. However, the scope of the
political question doctrine has been limited by Section 1 of Article VIII of the 1987
Constitution when it vested in the judiciary the power to determine whether or not there has
been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. (Saturnino C. Ocampo, et al. v. Rear
Admiral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016, En Banc
[Peralta])
An actual case or controversy means an existing case or controversy that is

appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the
court would amount to an advisory opinion. (Republic Telecommunications Holding, Inc. v.
Santiago, 556 Phil. 83, 91-92 [2001]) The rule is that courts do not sit to adjudicate mere
academic questions to satisfy scholarly interest, however intellectually challenging. The
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controversy must be justiciable – definite and concrete, touching on the legal relations of
parties having adverse legal interests. In other words, the pleadings must show an active
antagonistic assertion of a legal right, on the one hand, and a denial thereof, on the other;
that is, it must concern a real, tangible and not merely a theoretical question or issue. There
ought to be an actual and substantial controversy admitting of specific relief through a
decree conclusive in nature, as distinguished from an opinion advising what the law would
be upon a hypothetical state of facts. (Information Technology Foundation of the Philippines
v. Commission on Elections, 499 Phil. 281, 304-305 [2005])
Corollary to the requirement of an actual case or controversy is the requirement of

ripeness (Lawyers against Monopoly and Poverty [LAMP] v. The Secretary of Budget and
Management, GR No. 164987, April 24, 2012, 670 SCRA 373, 383). A question is ripe for
adjudication when the act being challenged has had a direct adverse effect on the individual
challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that
something has then been accomplished or performed by either branch before a court may
come into the picture, and the petitioner must allege the existence of an immediate or
threatened injury to himself as a result of the challenged action. He must show that he has
sustained or is immediately in danger of sustaining some direct injury as a result of the act
complained of (The Province of North Cotabato v. The Government of the Republic of the
Philippines, 589 Phil. 387, 481 [2008]). (James M. Imbong, et al. v. Hon. Paquito N.
Ochoa, Jr., et al., GR No. 204819, April 8, 2014,
The Moot and Academic Principle
An action is considered “moot” when it no longer presents a justiciable controversy

because the issued involved have become academic or dead, or when the matter in dispute
has already been resolved and hence, one is not entitled to judicial intervention unless the
issue is likely to be raised again between the parties (Santiago v. Court of Appeals, 348 Phil.
792, 800 [1998]). Time and again, courts have refrained from even expressing an opinion in
a case where the issues have become moot and academic, there being no more justiciable
controversy to speak of, so that a determination thereof would be of no practical use or value
(Barbieto v. Court of Appeals, GR No. 184646, October 30, 2009, 604 SCRA 825, 840).
(International Service for the Acquisition of Agri-biotech Applications, Inc. v.
Greenpeace Southeast Asia (Philippines), et al., GR No. 209271, December 8, 2015, En
Banc [Villarama])
Exceptions to the Moot and Academic Principle
Even on the assumption of mootness, jurisprudence dictates that “the ‘moot and
academic’ principle is not a magical formula that can automatically dissuade the Court in
resolving a case.” The Court will decide cases, otherwise moot, if first, there is a grave
violation of the Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; and fourth,
the case is capable of repetition yet evading review. (Belgica, et al. v. Exec. Sec. Paquito
N. Ochoa, et al., G.R. No. 208566, 710 SCRA 1, 93, Nov. 19, 2013, En Banc [Perlas-
Bernabe])
Locus Standi
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Defined as a right of appearance in a court of justice on a given question, locus
standi requires that a party alleges such personal stake in the outcome of the controversy as
to assure that concrete adverseness which sharpens the presentation of issues upon which
the court depends for illumination of difficult constitutional questions. Unless a person has
sustained or is in imminent danger of sustaining an injury as a result of an act complained of,
such party has no standing. (Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C.
Enriquez, et al., G.R. No. 225973, November 8, 2016, En Banc [Peralta])
Locus standi is “a right of appearance in a court of justice on a given question (Bayan

Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA 244, 254, citing David v.
Macapagal-Arroyo, 522 Phil. 705, 755 [2006]). Specifically, it is “a party’s personal and
substantial interest in a case where he has sustained or will sustain direct injury as a result”
of the act being challenged, and “calls for more than just a generalized grievance.” (Id., citing
Jumamil v. Café, 507 Phil. 455, 465 [2005], citing Integrated Bar of the Philippines v. Zamora,
392 Phil. 618, 632-633 [2000]) However, the rule on standing is a procedural matter which
this Court has relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers and
legislators when the public interest so requires, such as when the subject matter of the
controversy is of transcendental importance, of overreaching significance to society, or of
paramount public interest. (Biraogo v. Philippine Truth Commission of 2010, G.R. Nos.
192935 & 193036, December 7, 2010, 637 SCRA 78, 151 citing Social Justice Society [SJS]
v. Dangerous Drugs Board, et al., 591 Phil. 393404 [2008]; Tatad v. Secretary of the
Department of Energy, 346 Phil. 321 [1997] and De Guia v. COMELEC, G.R. No. 104712,
May 6, 1992, 208 SCRA 420, 422.)
In the landmark case of Oposa v. Factoran, Jr., G.R. No. 101083, July 30, 1993, 224
SCRA 792, we recognized the “public right” of citizens to “a balanced and healthful ecology
which, for the first time in our constitutional history, is solemnly incorporated in the
fundamental law.” We declared that the right to a balanced and healthful ecology need not
be written in the Constitution for it is assumed, like other civil and political rights guaranteed
in the Bill of Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications. Such right carries with it the
correlative duty to refrain from impairing the environment. (Id. At 804-805) (Most Rev.
Pedro D. Arigo, et al. v. Scott H. Swift, et al., G.R. No. 206510, September 16,
2014, En Banc [Villarama, Jr.])
Taxpayers’ Suit
Taxpayers have been allowed to sue where there is a claim that public funds are
illegally disbursed or that public money is being deflected to any improper purpose, or that
public funds are wasted through the enforcement of an invalid or unconstitutional law.
(Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No.
225973, November 8, 2016, En Banc [Peralta])
Suits Filed by Concerned Citizens
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As concerned citizens, petitioners are also required to substantiate that the issues
are of transcendental significance, or of paramount public interest. In cases involving such
issues, the imminence and clarity of the threat to fundamental constitutional rights outweigh
the necessity for prudence. (Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C.
Enriquez, et al., G.R. No. 225973, November 8, 2016, En Banc [Peralta])
Suits Filed by Members of Congress
In the absence of a clear showing of any direct injury to their person or the institution
to which they belong, their standing as members of the Congress cannot be upheld.
(Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No.
225973, November 8, 2016, En Banc [Peralta])
The Liberalization of the Rules on Legal Standing
The liberalization of standing first enunciated in Oposa, insofar as it refers to minors

and generations yet unborn, is now enshrined in the Rules which allows the filing of a citizen
suit in environmental cases. The provision on citizen suits in the Rules “collapses the
traditional rule on personal and direct interest, on the principle that humans are stewards of
nature.” (See ANNOTATION TO THE RULES OF PROCEDURE FOR ENVIRONMENTAL
CASES) (Most Rev. Pedro D. Arigo, et al. v. Scott H. Swift, et al., G.R. No. 206510,
September 16, 2014, En Banc [Villarama, Jr.])
Facial Challenge
James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et al., (GR No. 204819, April 8,
2014, En Banc [Mendoza])
In United States (US) constitutional law, a facial challenge, also known as a First
Amendment Challenge, is on that is launched to assail the validity of statutes concerning not
only protected speech, but also all other rights in the First Amendment (See United States
v. Salerno, 481 U.S. 739 [1987]). These include religious freedom, freedom of the press,
and the right of the people to peaceably assemble, and to petition the Government for
a redress of grievances. After all, the fundamental right to religious freedom, freedom of
the press and peaceful assembly are but component rights of the right to one’s freedom of
expression, as they are modes which one’s thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been
generally maintained, albeit with some modifications. While this Court has withheld the
application of facial challenges to strictly penal statutes (Romualdez v. Commission on
Elections, 576 Phil. 357 [2008]; Romualdez v. Sandiganbayan, 479 Phil. 265 [2004];
Estradfa v. Sandiganbayan, 421 Phil. 290 [2001]), it has expanded its scope to cover
statutes not only regulating free speech, but also those involving religious freedom, and
other fundamental rights (Resolution, Romualdez v. Commission on Elections, 594 Phil.
305, 316 [2008]). The underlying reason for this modification is simple. For unlike its
counterpart in the U.S., this Court, under its expanded jurisdiction, is mandated by the
Fundamental Law not only to settle actual controversies involving rights which are legally
demandable and enforceable, but also to determine whether or not there has been a
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grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government. Verily, the framers of Our Constitution
envisioned a proactive Judiciary, ever vigilant with its duty to maintain the supremacy of the
Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that the
constitutional human rights to life, speech and religion and other fundamental rights
mentioned above have been violated by the assailed legislation, the Court has authority to
take cognizance of these kindred petitions and to determine if the RH (Reproductive Health)
Law can indeed pass constitutional scrutiny. To dismiss these petitions on the simple
expedient that there exist no actual case or controversy, would diminish this Court as a
reactive branch of government, acting only when the Fundamental Law has been
transgressed, to the detriment of the Filipino people.
Jose Jesus M. Disini, Jr., et al. v. The Secretary of Justice, et al., G.R. No,. 203335, Feb.
11, 2014, En Banc (Abad)
When a penal statute encroaches upon the freedom of speech, a facial challenge
grounded on the void-for-vagueness doctrine is acceptable. The inapplicability of the
doctrine must be carefully delineated. As Justice Antonio T. Carpio explained in his dissent
in Romualdez v. Commission on Elections, “we must view these statements of the Court on
the inapplicability of the overbreadth and vagueness doctrines to penal statutes as
appropriate only insofar as these doctrines are used to mount “facial” challenges to penal
statutes not involving free speech.”
In an “as applied” challenge, the petitioner who claims a violation of his constitutional
right can raise any constitutional ground – absence of due process, lack of fair notice, lack of
ascertainable standards, overbreadth, or vagueness. Here, one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. It prohibits one
from assailing the constitutionality of the statute based solely on the violation of the rights of
third persons not before the court. This rule is also known as the prohibition against third-
party standing.
The Void-for-vagueness Doctrine and the Doctrine of Overbeadth
Southern Hemisphere Engagement Network, Inc., et al. v. Anti-Terrorism Council, et al.

(G.R. Nos. 178552, 178581, 178890, 179157, & 179461, 5 October 2010, En Banc
(Carpio-Morales)
In addition, a statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must necessarily guess at its
meaning and differ as to its application. The overbreadth doctrine, meanwhile, decrees that
a governmental purpose to control or prevent activities constitutionally subject to state
regulations may not be achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms. Distinguished from an as-applied challenge which
considers only extant facts affecting real litigants, a facial invalidation is an examination of
the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation
to the parties, but also on the assumption or prediction that its very existence may cause
others not before the court to refrain from constitutionally protected speech or activities.
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The most distinctive feature of the overbreadth technique is that it marks an
exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant
claims that a statute is unconstitutional as applied to him or her. Moreover, challengers to a
law are not permitted to raise the rights of third parties and can only assert their own
interests. In overbreadth analysis, those rules give way; challenges are permitted to raise
the rights of third parties; and the court invalidates the entire statute “on its fact,” not merely
“as applied for” so that the overbreadth law becomes unenforceable until a properly
authorized court construes it more narrowly. The factor that motivates courts to depart from
the normal adjudicatory rules is the concern with the “chilling” deterrent effect of the
overbreadth statute on third parties not courageous enough to bring suit. The Court
assumes that an overbreadth law’s “very existence may cause others not before the court to
refrain from constitutionally protected speech or expression.” An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third parties.
The rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case may
ordinary penal statutes be subjected to a facial challenge. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is allowed for this
reason alone, the State may well be prevented from enacting laws against socially harmful
conduct. In the area of criminal law, the law cannot take chances as in the area of free
speech.
Xxx
Utterances not elemental but inevitably incidental to the doing of the criminal conduct
alter neither the intent of the law to punish socially harmful conduct nor the essence of the
whole act as conduct and not free speech. It is true that the agreements and course of
conduct were in most instances brought about through speaking or writing. But it has never
been deemed an abridgement of freedom of speech or press to make a course of conduct
illegal merely because that conduct was, in part, initiated, evidenced, or carried out by
means of language, either spoken, written, or printed. Such an expansive interpretation of
the constitutional guarantees of speech and press would make it practically impossible ever
to enforce laws against agreements in restraint of trade as well as many other agreements
and conspiracies deemed injurious to society.
The Rule-Making Power of the Supreme Court
The Supreme Court shall have the following powers:
Xxx
(5) Promulgate rules concerning the protection and enforcement of

constitutional rights, pleading, practice, and procedure in all courts, the admission to
the practice of law, the Integrated Bar, and legal assistance to the underprivileged.
Such rules shall provide a simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of the same grade, and shall not
diminish, increase, or modify substantive rights. Rules of procedure of special courts
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and quasi-judicial bodies shall remain effective unless disapproved by the Supreme
Court. (Section 5[5], 1987 Constitution)
In In Re: Petition for Recognition of the Exemption of the Government Service

Insurance System from Payment of Legal Fees, The Court ruled that the provision in the
Charter of the GSIS, i.e., Section 39 of Republic Act No. 8291, which exempts it from “all
taxes, assessments, fees, charges or duties of all kinds,” cannot operate to exempt it from
the payment of legal fees. This was because, unlike the 1935 and 1973 Constitutions, which
empowered Congress to repeal, alter or supplement the rules of the Supreme Court
concerning pleading, practice and procedure, the 1987 Constitution removed this power from
Congress. Hence, the Supreme Court now has the sole authority to promulgate rules
concerning pleading, practice and procedure in all courts. (GSIS v. Heirs of Fernando F.
Caballero, G.R. No. 158090, 632 SCRA 5, 14-15, Oct. 4, 2010, 2nd Div. [Peralta])
CONSTITUTIONAL LAW
Police Power
The Power of Eminent Domain
The Constitution expressly provides in Article III, Section 9 that “private property shall
not be taken for public use without just compensation.” The provision is the most important
protection of property rights in the Constitution. This is a restriction on the general power of
the government to take property. The constitutional provision is about ensuring that the
government does not confiscate the property of some to give it to others. In part too, it is
about loss spreading. If the government takes away a person’s property to benefit society,
the society should pay. The principal purpose of the guarantee is “to bar the Government
from forcing some people alone to bear public burdens which, in all fairness and justice,
should be borne by the public as a whole.” (City of Manila v. Laguio, Jr., G.R. No. 118127,
April 12, 2005; cited in Mosqueda, et al. v. Pilipino Banana Growers & Exporters
Association, Inc., et al., G.R. No. 189185, August 16, 2016, En Banc [Bersamin])
The Two (2) Types of “Taking” under the Power of Eminent Domain
There are two different types of taking that can be identified. A “possessory” taking
occurs when the government confiscates or physically occupies property. A “regulatory”
taking occurs when the government’s regulation leaves no reasonable economically viable
use of the property. (City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005)

al. (G.R. No. 189185, August 16, 2016), it was argued that the requirement of maintaining a
buffer zone in all agricultural entities under Section 6 of an ordinance of Davao City
prohibiting aerial spraying unduly deprives all agricultural landowners in that City of the
beneficial use of their property amounting to taking without just compensation. The
Supreme Court did not agree. Citing City of Manila v. Laguio, Jr. (G.R. No. 118127, April 12,
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2005), it clarified that taking only becomes confiscatory if it substantially divests the owner of
the beneficial use of its property. According to the Court:
The establishment of the buffer zone is required for the purpose of minimizing
the effects of aerial spraying within and near the plantations. Although Section 3(e)
of the ordinance requires the planting of diversified trees within the identified buffer
zone, the requirement cannot be construed and deemed as confiscatoy requiring
payment of just compensation. A landowner may only be entitled to compensation if
the taking amounts to a permanent denial of all economically beneficial or productive
uses of the land. The respondents cannot be said to be permanently and completely
deprived of their landholdings because they can still cultivate or make other
productive uses of the areas to be identified as the buffer zones.
The Power of Taxation
THE BILL OF RIGHTS
The Right to Due Process of Law
Section 1 of the Bill of Rights lays down what is known as the “due process clause” of
the Constitution.
In order to fall within the aegis of this provision, two conditions must concur, namely,
that there is a deprivation and that such deprivation is done without proper observance of
due process. When one speaks of due process of law, however, a distinction must be made
between matters of procedure and matters of substance. In essence, procedural due
process “refers to the method or manner by which the law is enforced,” while substantive
due process “requires that the law itself, not merely the procedures by which the law would
be enforced, is fair, reasonable, and just.” (De Leon, Textbook on the Philippine Constitution,
1991, p. 81) (Corona v. United Harbor Pilots Association of the Phils., 283 SCRA 31,
Dec. 12, 1997 [Romero])
The due process clauses in the American and Philippine Constitutions are not only
worded in exactly identical language and terminology, but more importantly, they are alike in
what their respective Supreme Courts have expounded as the spirit with which the
provisions are informed and impressed, the elasticity in their interpretation, their dynamic
and resilient character which make them capable of meeting every modern problem, and
their having been designed from earliest time to the present to meet the exigencies of an
undefined and expanding future. The requirements of due process are interpreted in both,
the United States and the Philippines as not denying to the law the capacity for progress and
improvement. Toward this effect and in order to avoid the confines of a legal straitjacket, the
courts instead prefer to have the meaning of the due process clause “generally ascertained
by the process of inclusion and exclusion in the course of the decisions of cases as they
arise (Twining v. New Jersey, 211 U.S. 78). Capsulized, it refers to “the embodiment of the
sporting idea of fair play” (Ermita-Malate Hotel and Motel Owner’s Association v. City Mayor
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of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which
inhere in the very idea of free government (Holden v. Hardy, 169 U.S. 366).
Due process is comprised of two components – substantive due process which

requires the intrinsic validity of the law in interfering with the rights of the person to his life,
liberty, or property, and procedural due process which consists of the two basic rights of
notice and hearing, as well as the guarantee of being heard by an impartial and competent
tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106).
True to the mandate of the due process clause, the basic rights of notice and hearing
pervade not only in criminal and civil proceedings, but in administrative proceedings as well.
Non-observance of these rights will invalidate the proceedings. Individuals are entitled to be
notified of any pending case affecting their interests, and upon notice, they may claim the
right to appear therein and present their side and to refute the position of the opposing
parties (Cruz, Philippine Administrative Law, 1996 ed., p. 64). (Secretary of Justice v.
Lantion, 322 SCRA 160, 186-188, Jan. 18, 2000, En Banc [Melo])
Instances when Prior Notice or Hearing may be dispensed with
These twin rights may, however, be considered dispensable in certain instances,

such as:
1. In proceedings where there is an urgent need for immediate action, like the
summary abatement of a nuisance per se (Article 704, Civil Code), the
preventive suspension of a public servant facing administrative charges (Section
63, Local Government Code, B.P. Blg. 337), the padlocking of filthy restaurants
or theaters showing obscene movies or like establishments which are immediate
threats to public health and decency, and the cancellation of a passport of a
person sought for criminal prosecution;
2. Where there is tentativeness of administrative action, that is, where the

respondent is not precluded from enjoying the right to notice and hearing at a
later time without prejudice to the person affected, such as the summary distraint
and levy of the property of a delinquent taxpayer, and the replacement of a
temporary appointee; and
3. Where the twin rights have previously been offered but the right to exercise them
had not been claimed. (Secretary of Justice v. Lantion, 322 SCRA 160, 186-
188, Jan. 18, 2000, En Banc [Melo])
The Void-for-vagueness Doctrine
The law should be declared void as it is vague, i.e., it lacks comprehensible

standards so that men of ordinary intelligence will probably have to guess as to its meaning
and differ in its application.
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Such vague law is repugnant to the Constitution in two (2) respects: one, it violates
due process as it fails to afford persons fair notice of the conduct to avoid and; second, it
gives law enforcers unbridled discretion in carrying out provisions and, therefore, in effect, it
becomes an arbitrary flexing of the government’s muscle.
However, for this to be validly invoked, the act or law must be utterly vague on its
face that it cannot be clarified either by a saving clause or by statutory construction.
Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., G.R.
No. 189185, August 16, 2016, En Banc (Bersamin)
An Ordinance enacted by the City of Davao prohibiting aerial spraying in all

agricultural entities in that City and requiring affected parties to shift to other modes of
pesticide application within a three-month period under pain of penalty was declared
unconstitutional as it violates due process for being oppressive.
Held:
The impossibility of carrying out a shift to another mode of pesticide

application within three months can readily be appreciated given the vast area of the
affected plantations and the corresponding resources required therefor. X x x
Xxx
The required civil works for the conversion to truck-mounted boom spraying
alone will consume considerable time and financial resources given the topography
and geographical features of the plantations. As such, the completion could not be
completed within the short timeframe of three months. Requiring the respondents
and other affected individuals to comply with the consequences of the ban within the
three-month period under pain of penalty like fine, imprisonment and even
cancellation of business permits would definitely be oppressive as to constitute
abuse of police power.”
Extradition and Due Process
Secretary of Justice v. Honorable Ralph Lantion, October 17, 2000 Resolution of the
Motion for Reconsideration
During the initial evaluation stage at the Department of Justice of an extradition

proceeding, an extraditee is not yet entitled to the documents he was requesting (like copy of
request for his extradition from the requesting government, and supporting documents and
evidences) so that he may be able to prepare for his defense. That is because an
extradition is “sui generis;” it is not similar to a criminal proceeding which will call into
operation all of the rights of an accused as guaranteed by the Bill of Rights.
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He may be given copies of those documents once the petition for his extradition is
filed in the RTC. This is but a “soft restraint” on his right to due process at that stage. There
is no denial of due process for as long as fundamental fairness is assured a party.
The Right to the Equal Protection of the Laws
The constitutional right to equal protection requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and responsibilities imposed. It
requires public bodies and institutions to treat similarly situated individuals in a similar
manner. The guarantee of equal protection secures every person within the State’s
jurisdiction against intentional and arbitrary discrimination, whether occasioned by the
express terms of a statute or by its improper execution through the State’s duly constituted
authorities. The concept of equal justice under the law demands that the State governs
impartially and not to draw distinctions between individuals solely on differences that are
irrelevant to the legitimate governmental objective.
Equal protection neither requires universal application of laws to all persons or things
without distinction, nor intends to prohibit legislation by limiting the object to which it is
directed or by the territory in which it is to operate. The guaranty of equal protection
envisions equality among equals determined according to a valid classification. If the
groupings are characterized by substantial distinctions that make real differences, one class
may be treated and regulated differently from another. In other words, a valid classification
must be: (1) based on substantial distinctions; (2) germane to the purposes of the law; (3)
not limited to existing conditions only; and (4) equally applicable to all members of the class.
(Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., G.R.
No. 189185, August 16, 2016, En Banc [Bersamin])
The Three (3) Levels of Scrutiny to Determine the Propriety of the Classification under
the Equal Protection Clause
The reasonability of a distinction and sufficiency of the justification given by the

Government for its conduct is gauged by using the means-end test. This test requires
analysis of: (1) the interests of the public that generally requires its exercise, as
distinguished from those of a particular class; and (2) the means employed that are
reasonably necessary for the accomplishment of the purpose and are not unduly oppressive
upon individuals. To determine the propriety of the classification, courts resort to three
levels of scrutiny, viz: the rational scrutiny, intermediate scrutiny and strict scrutiny.
The rational basis scrutiny (also known as the rational relation test or rational basis
test) demands that the classification reasonably relate to the legislative purpose. The
rational basis test often applies in cases involving economics or social welfare, or to any
other case not involving a suspect class.
When the classification puts a quasi-suspect class at a disadvantage, it will be

treated under intermediate or heightened review. Classifications based on gender or
illegitimacy receives intermediate scrutiny. To survive intermediate scrutiny, the law must
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not only further an important governmental interest and be substantially related to that
interest, but the justification for the classification must be genuine and must not depend on
broad generalizations.
The strict scrutiny review applies when a legislative classification impermissibly

interferes with the exercise of a fundamental right or operates to the peculiar class
disadvantage of a suspect class. The Government carries the burden to prove that the
classification is necessary to achieve a compelling state interest, and that it is the least
restrictive means to protect such interest. (Mosqueda, et al. v. Pilipino Banana Growers &
Exporters Association, Inc., et al., G.R. No. 189185, August 16, 2016, En Banc
[Bersamin])

al., (G.R. No. 189185, August 16, 2016, En Banc [Bersamin]), the Court, applying the
rational basis test, ruled that the ordinance of Davao City prohibiting aerial spraying in all
agricultural entities therein as the practice produces pesticide drift causing inconvenience
and harm to the residents and degrades the environment, violates the equal protection
clause, hence, should be declared unconstitutional. The Court Held:
The occurrence of pesticide drift is not limited to aerial spraying but results
from the conduct of any mode of pesticide application. Even manual spraying or
truck-mounted boom spraying produces drift that may bring about the same
inconvenience, discomfort and alleged health risks to the community and to the
environment. A ban against aerial spraying does not weed out the harm that the
ordinance seeks to achieve. In the process, the ordinance suffers from being
“underinclusive” because the classification does not include all individuals tainted
with the same mischief that the law seeks to eliminate. A classification that is
drastically underinclusive with respect to the purpose or end appears as an irrational
means to the legislative end because it poorly serves the intended purpose of the law.
Xxx
Aside from its being underinclusive, the assailed ordinance also tends to be
“overinclusive” because its impending implementation will affect groups that have no
relation to the accomplishment of the legislative purpose. Its implementation will
unnecessarily impose a burden on a wider range of individuals than those included in
the intended class based on the purpose of the law.
It can be noted that the imposition of the ban is too broad because the
ordinance applies irrespective of the substance to be aerially applied and irrespective
of the agricultural activity to be conducted. The respondents admit that they aerially
treat their plantations not only with pesticides but also vitamins and other substances.
The imposition of the ban against aerial spraying of substances other than fungicides
and regardless of the agricultural activity being performed becomes unreasonable
inasmuch as it patently bears no relation to the purported inconvenience, discomfort,
health risk and environmental danger which the ordinance seeks to address. The
burden now will become more onerous to various entities, including the respondents
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and even others with no connection whatsoever to the intended purpose of the
ordinance.”
Xxx
The overinclusiveness of Ordinance No. 0309-07 may also be traced to its

Section 6 by virtue of its requirement for the maintenance of the 30-meter buffer zone.
This requirement applies regardless of the area of the agricultural landholding,
geographical location, topography, crops grown and other distinguishing
characteristics that ideally should bear a reasonable relation to the evil sought to be
avoided. As earlier stated, only large banana plantations could rely on aerial
technology because of the financial capital required therefor.
The establishment and maintenance of the buffer zone will become more
burdensome to the small landholders because: (1) they have to reserve the 30-meter
belt surrounding their property; (2) that will have to be identified through GPS; (3) the
metes and bounds of the buffer zone will have to be plotted in a survey plan for
submission to the local government unit; and (4) will be limited as to the crops that
may be cultivated therein based on the mandate that the zone shall be devoted to
“diversified trees” taller than what are being grown therein. The arbitrariness of
Section 6 all the more becomes evident when the land is presently devoted to the
cultivation of root crops and vegetables, and trees or plants slightly taller than the
root crops and vegetables are then to be planted. It is seriously to be doubted
whether such circumstance will prevent the occurrence of the drift to the nearby
residential areas.
Section 6 also subjects to the 30-meter buffer zone requirement agricultural

entities engaging in organic farming, and do not contribute to the occurrence of
pesticide drift. The classification indisputably becomes arbitrary and whimsical.
A substantially overinclusive or underinclusive classification tends to undercut

the governmental claim that the classification serves legitimate political ends. Where
overinclusiveness is the problem, the vice is that the law has a greater discriminatory
or burdensome effect than necessary. In this light, we strike down Section 5 and
Section 6 of Ordinance 0309-07 for carrying an invidious classification, and for
thereby violating the Equal Protection Clause.
Xxx
Evidently, the ordinance discriminates against large farmholdings that are the
only ideal venues for the investment of machineries and equipment capable of aerial
spraying. It effectively denies the affected individuals the technology aimed at
efficient and cost-effective operations and cultivation not only of banana but of other
crops as well. The prohibition against aerial spraying will seriously hamper the
operations of the banana plantations that depend on aerial technology to arrest the
spread of the Black Sigatoka disease and other menaces that threaten their
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production and harvest. X x x the effect of the ban will not be limited to Davao City in
view of the significant contribution of banana export trading to the country’s economy.
The discriminatory character of the ordinance makes it oppressive and

unreasonable in light of the existence and availability of more permissible and
practical alternatives that will not overburden the respondents and those dependent
on their operations as well as those who stand to be affected by the ordinance. X x x
The Right against Unreasonable Searches and Seizures
Abdula v. Guiani
In a criminal proceeding, there are two (2) determinations of probable cause, i.e., one
is made by the prosecutor during preliminary investigation for the purpose of filing the
criminal information in court; and the other is made by the judge for the purpose of issuing a
warrant of arrest, or of a search warrant.
The determination of probable cause for the purpose of filing the criminal information
in court is an executive function. It is a function that belongs to the prosecutor, an officer
under the Department of Justice, a department under the executive branch. On the other
hand, the determination of probable cause for the purpose of issuing a warrant of arrest, or
even that of a search warrant, is a judicial function, because under Section 2 of the Bill of
Rights of the Constitution, only a judge may issue a warrant of arrest or of a search warrant.
For this reason, the judge is not bound by the determination of probable cause by the
prosecutor. In fact, he should not rely solely on the finding of probable cause by the
prosecutor because he is mandated by the Constitution to determine probable cause
personally. He cannot abdicate the performance of that function in favor of the prosecutor if
he wanted to remain faithful to the Constitution.
Government of the USA v. Judge Purganan
Prior notice or hearing is not required before a judge issues a warrant of arrest of an
extraditee once the petition for extradition is filed in court on two (2) basis, i.e., statutory (Sec.
6, P.D. No. 1069); and constitutional (Sec. 2, Art. III of the Bill of Rights).
On statutory basis
Section 6, P.D. No. 1069 (Extradition Law) provides that the moment the petition for
extradition is filed in the RTC, the judge shall cause the immediate issuance of a warrant of
arrest. Hearing entails sending of notices to opposing parties, and receiving facts and
arguments from them. Arrest subsequent to a hearing can no longer be considered
“immediate.” The law could not have intended the use of the word “immediate” a superfluity.
On constitutional basis
Even Section 2, Article III of the Bill of Rights does not require notice or hearing
before a judge issues a warrant of arrest. On the contrary, what the Constitution provides is
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“after examination under oath or affirmation of the complainant (not of the accused) and the
witnesses he may produce.”
Search Incidental to a Lawful Arrest (Section 13, Rule 126, Rules of Court)
This is the most common among the instances of valid warrantless searches. The
object of this kind of warrantless search is to obtain object or effect of a crime, like the stolen
wallet or the knife used in hold-up.
The three (3) important features of this kind of warrantless search are:
1. In this kind if warrantless search, the arrest always precedes the search; the
process cannot be reversed;
2. The precedent arrest must always be lawful because, if the precedent arrest is
unlawful, the subsequent search, although it may have yielded positive results,
may never validate the unlawful arrest that preceded it; and
3. The search must be limited or confined only to the immediate vicinity of the place
of the arrest. It may not be extended beyond that.
Valmonte v. De Villa
For searches at checkpoints to be valid, the following must be observed:
1. The checkpoint must be pre-announced;

2. It must be stationary; and
3. The search at checkpoint must be limited to visual search only. An intrusive
search is not allowed
Social Justice Society v. Dangerous Drugs Board
The Mandatory Drug Testing under R.A. No. 9165 (The Comprehensive Dangerous
Drugs Act) does not constitute unreasonable search prohibited by the Constitution. It falls
under the category of an administrative search. In administrative searches, the strict
probable cause requirement is not applied.
People v. Leila Johnson
When one is at the nation’s airport and wanted to travel by air, he has no reasonable
expectation of privacy and can be subject to warrantless search. This is in view of increased
concern over airplane hijacking and terrorism.
In the later case of People v. Susan Canton, the SC held that this is now another
instance of valid warrantless search – warrantless searches at airports.
People v. Doria
The requisites for the “plain view” doctrine to be validly invoked are:
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1. The law enforcement officer must have a valid justification for an intrusion, or is in
a position where he can view a particular area;
2. The discovery of the evidence in plain view must be inadvertent; and
3. It is immediately apparent to him that the thing he sees is object of a crime,
contraband, or subject to seizure.
It is clear that if the object is inside a closed container, “plain view” may not be
invoked. However, even if it inside a closed container but if due to the configuration of the
container, or due to its transparency, it can still be seen from the outside what is inside,
“plain view” may still be invoked.
The Right to Privacy
Is there a constitutional right to privacy?
The essence of privacy is the “right to be let alone.” In the 1965 case of Griswold v.
Connecticut (381 U.S. 479, 14 L. ed. 2D 510 [1965]), the United States Supreme Court gave
more substance to the right of privacy when it ruled that the right has a constitutional
foundation. It held that there is a right of privacy which can be found within the penumbras
of the First, Third, Fourth, Fifth and Ninth Amendments x x x. In the 1968 case of Morfe v.
Mutuc (22 SCRA 424, 444-445), we adopted the Griswold ruling that there is a constitutional
right to privacy x x x.
Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our Constitution. (Morfe v. Mutuc, 22
SCRA 424, 444 [1968]; Cortes, The Constitutional Foundations of Privacy, p. 18 [1970]). It
is expressly recognized in Section 3(1) of the Bill of Rights x x x. Other facets of the right to
privacy are protected in various provisions of the Bill of Rights (viz: Secs. 1, 2, 6, 8, and 17.
(Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])
What are the zones of privacy recognized and protected in our laws?
The Civil Code provides that “[e]very person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other persons” and punishes as actionable
torts several acts by a person of meddling and prying into the privacy of another. It also
holds a public officer or employee or any private individual liable for damages for any
violation of the rights and liberties of another person, and recognizes the privacy of letters
and other private communications. The Revised Penal Code makes a crime the violation of
secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling.
Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law (R.A. 4200),
the Secrecy of Bank Deposits (R.A. 1405) and the Intellectual Property Code (R.A. 8293).
The Rules of Court on privileged communication likewise recognize the privacy of certain
information (Section 24, Rule 130[c], Revised Rules on Evidence). (Ople v. Torres, G.R.
No. 127685, July 23, 1998 [Puno])
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Jose Jesus M. Disini, Jr., et al. v. The Secretary of Justice, et al., G.R. No,. 203335, Feb.
11, 2014, En Banc (Abad)
The right to privacy, or the right to be let alone, was institutionalized in the 1987
Constitution as a facet of the right protected by the guarantee against unreasonable
searches and seizures. But the Court acknowledged its existence as early as 1968 in Morfe
v. Mutuc, it ruled that the right to privacy exists independently of its identification with liberty;
it is in itself fully deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the “Zones
of Privacy.” The Court explained in “In the Matter of the Petition for Issuance of Writ of
Habeas Corpus of Sabio v. Senator Gordon” the relevance of these zones to the right to
privacy:
Zones of privacy are recognized and protected in our laws. Within these
zones, any form of intrusion is impermissible unless excused by law and in
accordance with customary legal process. The meticulous regard we accord to these
zones arises not only from our conviction that the right to privacy is a “constitutional
right” and “the right most valued by civilized men,” but also from our adherence to the
Universal Declaration of Human Rights which mandates that, “no one shall be
subjected to arbitrary interference with his privacy” and “everyone has the right to the
protection of the law against such interference or attacks.”
Two constitutional guarantees create these zones of privacy: (a) the right against
unreasonable searches and seizures, which is the basis of the right to be let alone, and (b)
the right to privacy of communication and correspondence.
In assessing the challenge that the State has impermissibly intruded into these zones
of privacy, a court must determine whether a person has exhibited a reasonable expectation
of privacy and, if so, whether that expectation has been violated by unreasonable
government intrusion.
Freedom of Expression
Content-based restrictions on free speech, and content-neutral regulations
Content-based restrictions are imposed because of the content of the speech and
are, therefore, subject to the clear-and-present danger test. For example, a rule such as that
involved in Sanidad v. Comelec, prohibiting columnists, commentators, and announcers from
campaigning either for or against an issue in a plebiscite must have compelling reason to
support it, or it will not pass muster under strict scrutiny. These restrictions are censorial and
therefore they bear a heavy presumption of constitutional invalidity. In addition, they will be
tested for possible overbreadth and vagueness.
Content-neutral restrictions, on the other hand, like Sec. 11(b) of R.A. No. 6646,
which prohibits the sale or donation of print space and air time to political candidates during
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the campaign period, are not concerned with the content of the speech. These regulations
need only a substantial governmental interest to support them. A deferential standard of
review will suffice to test their validity. The clear-and-present danger rule is inappropriate as
a test for determining the constitutional validity of laws, like Sec. 11(b) of R.A. No. 6646,
which are not concerned with the content of political ads but only with their incidents. To
apply the clear-and-present danger test to such regulatory measures would be like using a
sledgehammer to drive a nail when a regular hammer is all that is needed.
The test for this difference in the level of justification for the restriction of speech is
that content-based restrictions distort public debate, have improper motivation, and are
usually imposed because of fear of how people will react to a particular speech. No such
reasons underlie content-neutral regulations, like regulation of time, place and manner of
holding public assemblies under B.P. Blg. 880, the Public Assembly Act of 1985. (Osmena
v. COMELEC, 288 SCRA 447, March 31, 1998 [Mendoza])
What is the most influential test for distinguishing content-based from content-neutral
regulations?
The United States Supreme Court held in United States v. O’ Brien:
[A] a governmental regulation is sufficiently justified (1) if it is within the constitutional

power of the government; (2) if it furthers an important or substantial governmental
interest; (3) if the governmental interest is unrelated to the suppression of free
expression; and (4) if the incidental restriction on alleged First Amendment freedoms
(of speech, expression and press) is no greater than is essential to the furtherance of
that interest (391 U.S. 367, 20 L. Ed. 2df 692, 680 [1968] [bracketed numbers added])
This is so far the most influential test for distinguishing content-based from content-
neutral regulations and is said to have “become canonical in the review of such laws.” (G.
Gunther & K. Sullivan, Constitutional Law 1217 [13th ed. 1997]). It is noteworthy that the O’
Brien test has been applied by this Court in at least two cases (Adiong v. Comelec, 207
SCRA 712 [1992]; Osmena v. Comelec, supra.).
Under this test, even if a law furthers an important or substantial governmental

interest, it should be invalidated if such governmental interest is “not unrelated to the
suppression of free expression.” Moreover, even if the purpose is unrelated to the
suppression of free speech, the law should nevertheless be invalidated if the restriction on
freedom of expression is greater than is necessary to achieve the governmental purpose in
question. (Social Weather Stations, Inc. v. Comelec, G.R. No. 147571, May 5, 2001, En
Banc [Mendoza])
Chavez v. Secretary Gonzales
The Diocese of Bacolod, Represented by the Most Rev. Bishop Vicente M. Navarra, et
al. v. COMELEC, GR No. 205728, January 21, 2015, En Banc (Leonen)
This case defines the extent that our people may shape the debates during elections.
It is significant and of first impression. We are asked to decide whether the Commission on
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Elections (COMELEC) has the competence to limit expressions made by the citizens – who
are not candidates – during elections.
Before us is a special civil action for certiorari and prohibition under Rule 65 of the
Rules of Court seeking to nullify COMELEC’s Notice to Remove Campaign Materials.
SUBSTANTIVE ISSUES
A. COMELEC had no legal basis to regulate expressions made by private citizens.
Respondents (COMELEC officials) cite the Constitution, laws, and jurisprudence to

support their position that they had the power to regulate the tarpaulin. However, all of these
provisions pertain to candidates and political parties. Petitioners are not candidates. Neither
do they belong to any political party. COMELEC does not have the authority to regulate the
enjoyment of the preferred right to freedom of expression exercised by a non-candidate in
this case.
First, respondents cite Article IX-C, Section 4 of the Constitution x x x.
X x x We held that the “evil sought to be prevented by this provision is the possibility
that a franchise holder may favor or give any undue advantage to a candidate in terms of
advertising space or radio or television time.” (Sanidad v. COMELEC, 260 Phil. 565 [1990])
This Court found that “[m]edia practitioners exercising their freedom of expression during
plebiscite periods are neither the franchise holders nor the candidates[,]” thus, their right to
expression during this period may not be regulated by COMELEC.
Similar to the media, petitioners in the case at bar are neither franchise holders nor
candidates.
Respondents likewise cite Article IX-C, Section 2(7) of the Constitution x x x.
Based on the enumeration made on acts that may be penalized, it will be inferred
that this provision only affects candidates.
Petitioners assail the “Notice to Remove Campaign Materials” issued by COMELEC.

This was followed by the assailed letter regarding the “election propaganda materials posted
on the church vicinity promoting for or against the candidates and party-list groups . . .”
Section 9 of the Fair Election Act (R.A. No. 9006 [2001]) on the posting of campaign
materials only mentions “parties” and “candidates” x x x.
Xxx
Respondents considered the tarpaulin as a campaign material in their issuances.

The above provisions regulating the posting of campaign materials only apply to candidates
and political parties, and petitioners are neither of the two.
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Section 3 of Republic Act No. 9006 on “Lawful Election Propaganda” also states that
these are “allowed for all registered political parties, national, regional, sectoral parties or
organizations participating under the party-list elections and for all bona fide candidates
seeking national and local elective positions subject to the limitation on authorized expenses
of candidates and political parties. . .” Section 6 of COMELEC Resolution No. 9615 provides
for a similar wording.
These provisions show that election propaganda refers to matter done by or on

behalf of and in coordination with candidates and political parties. Some level of
coordination with the candidates and political parties for whom the election propaganda are
released would ensure that these candidates and political parties maintain within the
authorized expenses limitation.
The tarpaulin was not paid for by any candidate or political party. There was no
allegation that petitioners coordinated with any of the persons named in the tarpaulin
regarding its posting. On the other hand, petitioners posted the tarpaulin as part of their
advocacy against the RH Law.
Xxx
In this case, the tarpaulin contains speech on a matter of public concern, that is, a
statement of either appreciation or criticism on votes made in the passing of the RH law.
Thus, petitioners invoke their right to freedom of expression.
B. The violation of the constitutional right to freedom of speech and expression
No law. . .
While it is true that the present petition assails not a law but an opinion by the
COMELEC Law Department, this Court has applied Article III, Section 4 of the Constitution
even to governmental acts.
. . . shall be passed abridging. . .
All regulations will have a impact directly or indirectly on expression. The prohibition
against the abridgment of speech should not mean an absolute prohibition against regulation.
The primary and incidental burden on speech must be weighed against a compelling state
interest clearly allowed in the Constitution. The test depends on the relevant theory of
speech implicit in the kind of society framed by our Constitution.
Our Constitution has also explicitly included the freedom of expression, separate and
in addition to the freedom of speech and of the press provided in the US Constitution. The
word “expression” was added in the 1987 Constitution x x x for having a wider scope x x x.
Speech may be said to be inextricably linked to freedom itself as “[t]he right to think is
the beginning of freedom, and speech must be protected from the government because
speech is the beginning of thought.” (Freedom of Speech and Expression, 116 Harv. L. Rev.
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272, 277 [2002], quoting Justice Kennedy in Ashcroft v. Free Speech Coalition, 122 S. Ct.
1389, 1403 [2002])
Xxx
Communication is an essential outcome of protected speech.
Communication exists when “(1) a speaker, seeking to signal others, uses

conventional actions because he or she reasonably believes that such actions will be taken
by the audience in the manner intended; and (2) the audience so takes the actions.” (Heidi M.
Hurd, Sovereignty in Silence, 99 Yale L. J. 945, 954 [1990]) “[I]n communicative action[,] the
hearer may respond to the claims by x x x either accepting the speech act’s claims or
opposing them with criticism or requests for justification.” (Hugh Baxter, System and
Lifeworld in Haberma’s Theory of Law, 23 Cardozo L. Rev. 473, 499 [2002])
Speech is not limited to vocal communication. “[C]onduct is treated as a form of

speech sometimes referred to as ‘symbolic speech[,]’ (Joshua Waldman, Symbolic Speech
and Social Meaning, 97 Colum. L. Rev. 1844, 1847 [1997]) such that “’when ‘speech’ and
‘nonspeech’ elements are combined in the same course of conduct,’ the ‘communicative
element’ of the conduct may be ‘sufficient to bring into play the [right to freedom of
expression].’” (Id., citing US v. O’Brien, 391 U.S. 367, 376 [1968])
The right to freedom of expression, thus, applies to the entire continuum of speech
from utterances made to conduct enacted, and even to inaction itself as a symbolic manner
of communication.
Even before freedom “of expression” was included in Article III, Section 4 of the
present Constitution, this court has applied its precedent version to expressions other than
verbal utterances.
Freedom of expression and equality
The possibility of abuse
The guarantee of freedom of expression to individuals without any relationship to any

political candidate should not be held hostage by the possibility of abuse by those seeking to
be elected. X x x. However, labeling all expressions of private parties that tend to have an
effect on the debate in the elections as election paraphernalia would be too broad a remedy
that can stifle genuine speech. Instead, to address this evil, better and more effective
enforcement will be the least restrictive means to the fundamental freedom.
Xxx
COMELEC”s general role includes a mandate to ensure equal opportunities and

reduce spending among candidates and their registered political parties. It is not to regulate
or limit speech of the electorate as it strives to participate in the electoral exercise.
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The tarpaulin in question may be viewed as producing a caricature of those who are
running for public office. Their message may be construed generalizations of very complex
individuals and party-list organizations. They are classified into black and white: as
belonging to “Team Patay” or “Team Buhay.”
But this caricature, though not agreeable to some, is still protected speech.
Xxx
Some may have thought that there should be more room to consider being more
broad-minded and non-judgmental. Some may have expected that the authors would give
more space to practice forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an enumeration of our

fundamental liberties. It is not a detailed code that prescribes good conduct. It provides
space for all to be guided by their conscience, not only in the act that they do to others but
also in judgment of the acts of others.
Freedom for the thought we can disagree with can be wielded not only by those in
the minority. This can often be expressed by dominant institutions, even religious ones.
That they made their point dramatically and in a large way does not necessarily mean that
their statements are true, or that they have basis, or that they have been expressed in good
taste.
Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a

specie of expression protected by our fundamental law. It is an expression designed to
invite attention, cause debate, and hopefully, persuade. It may be motivated by the
interpretation of petitioners of their ecclesiastical duty, but their parishioner’s actions will
have very real secular consequences.
Certainly, provocative messages do matter for the elections.
What is involved in this case is the most sacred of speech forms: expression by the
electorate that tends to rouse the public to debate contemporary issues. This is not speech
by candidates or political parties to entice votes. It is a portion of the electorate telling
candidates the conditions for their election. It is the substantive content of the right to
suffrage.
This is a form of speech hopeful of a quality of democracy that we should all deserve.
It is protected as a fundamental and primordial right by our Constitution. The expression in
the medium chosen by petitioners deserves our protection.
Freedom of the Press
Four (4) Aspects of Press Freedom
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Philippine jurisprudence, even as early as the period under the 1935 Constitution,
has recognized four aspects of freedom of the press. These are (1) freedom from prior
restraint; (2) freedom from punishment subsequent to publication; (3) freedom of access to
information; and (4) freedom of circulation. (Francisco Chavez v. Raul M. Gonzales, et. al.,
G.R. No. 168338, 15 February 2008, En Banc [Puno, CJ])
Freedom of Assembly
The first point to mark is that the right to peaceably assemble and petition for redress
of grievances is, together with freedom of speech, of expression, and of the press, a right
that enjoys primacy in the realm of constitutional protection. For these rights constitute the
very basis of a functional democratic polity, without which all the other rights would be
meaningless and unprotected. (BAYAN, et al. v. Ermita, et al., G.R. No. 169838, April 25,
2006, En Banc [Azcuna])
Batas Pambansa Blg. 880 – The Public Assembly Act of 1985
Meaning of Public Assembly
“Public assembly” means any rally, demonstration, march, parade, procession or any
other form of mass or concerted action held in a public place for the purpose of presenting a
lawful cause, or expressing an opinion to the general public on any particular issue; or
protesting or influencing any state of affairs whether political, economic or social; or
petitioning the government for redress of grievances.
The processions, rallies, parades, demonstrations, public meetings and assemblages

for religious purposes shall be governed by local ordinances; Provided, however, That the
declaration of policy as provided in Section 2 of this Act shall be faithfully observed.
The definition herein contained shall not include picketing and other concerted action
in strike areas by workers and employees resulting from a labor dispute as defined by the
Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227.
(Section 3[a], B.P. Blg. 880)
Permit when required and when not required
A written permit shall be required for any person or persons to organize and hold a
public assembly in a public place. However, no permit shall be required if the public
assembly shall be done or made in a freedom park duly established by law or ordinance or
in a private property, in which case only the consent of the owner or the one entitled to its
legal possession is required, or in the campus of a government–owned and operated
educational institution which shall be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election campaign period as provided
for by law are not covered by this Act. (Section 4, B.P. Blg. 880)
Freedom Parks
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Every city and municipality in the country shall within six months after the effectivity
of this Act establish or designate at least one suitable “freedom park” or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the
poblacion where demonstrations and meetings may be held at any time without the need of
any prior permit. (Section 5, B.P. Blg. 880)
Action to be taken on the application (Section 6, B.P. Blg. 880)
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or
grant a permit unless there is clear and convincing evidence that the public
assembly will create a clear and present danger to public order, public safety,
public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the application within
two (2) working days from the date the application was filed, failing which, the
permit shall be deemed granted. Should for any reason the mayor or any official
acting in his behalf refuse to accept the application for a permit, said application
shall be posted by the applicant on the premises of the office of the mayor and
shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the applicant within
twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or modifies
the terms thereof in his permit, the applicant may contest the decision in an
appropriate court of law.
Integrated Bar of the Philippines v. Hon. Mayor Jose “Lito” Atienza, G.R. No. 175241,
24 February 2010, 1st Div. (Carpio Morales)
The Integrated Bar of the Philippines (IBP) applied for a permit to rally at Mendiola
Bridge. However, then Manila Mayor Jose “Lito” Atienza issued a permit to rally at Plaza
Miranda instead.
Issue: Whether or not the appellate court erred in holding that the modification of the
venue in IBP’s rally permit does not constitute grave abuse of discretion.
Held: Section 6(c) of the Public Assembly Act (BP 880) provides that “If the mayor is
of the view that there is imminent and grave danger of a substantive evil warranting the
denial or modification of the permit, he shall immediately inform the applicant who must be
heard on the matter.”
In modifying the permit outright, Atienza gravely abused his discretion when he did
not immediately inform the IBP who should have been heard first on the matter of his
perceived imminent and grave danger of a substantive evil that may warrant the changing of
the venue. Atienza failed to indicate how he had arrived at modifying the terms of the permit
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against the standard of a clear and present danger test which x x x is an indispensable
condition to such modification. Nothing in the issued permit adverts to an imminent and
grave danger of a substantive evil, which “blank” denial or modification would, when granted
imprimatur as the appellate court would have it, render illusory any judicial scrutiny thereof.
It is true that the licensing official is not devoid of discretion in determining whether or
not a permit would be granted. It is not, however, unfettered discretion. While prudence
requires that there be a realistic appraisal not of what may possibly occur but of what may
probably occur, given all the relevant circumstances, still the assumption – especially so
where the assembly is scheduled for a specific public place – is that the permit must be for
the assembly being held there. It smacks of whim and caprice for Atienza to impose a
change of venue for an assembly that was slated for a specific public place. It is thus
reversible error for the appellate court not to have found such grave abuse of discretion and,
under specific statutory provision, not to have modified the permit “in terms satisfactory to
the applicant.”
Meaning of Maximum Tolerance
“Maximum tolerance” means the highest degree of restraint that the military, police
and other peace keeping authorities shall observe during a public assembly or in the
dispersal of the same. (Section 3[c], B.P. Blg. 880)
B.P. No. 880 is merely a “content-neutral” regulation
It is very clear that B.P. No. 880 is not an absolute ban of public assemblies but a
restriction that simply regulates the time, place and manner of the assemblies. This was
adverted to in Osmena v. Comelec (G.R. No. 132231, March 31, 1998, 288 SCRA 447),
where the Court referred to it as a “content-neutral” regulation of the time, place, and manner
of holding public assemblies (Ibid, p. 478).
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all
kinds of public assemblies (except picketing and other concerted action in strike areas by
workers and employees resulting from a labor dispute, which are governed by the Labor
Code and other labor laws, political meeting or rallies held during election campaign period,
which are governed by the Election Code and other election related laws, and public
assemblies in the campus of a government-owned and operated educational institution,
which shall be subject to the rules and regulations of said educational institution [Sec. 3(a)
and Sec. 4 of B.P. No. 880]) that would use public places. The reference to “lawful cause”
does not make it content-based because assemblies really have to be for lawful causes,
otherwise they would not be “peaceable” and entitled to protection. Neither are the words
“opinion,” “protesting” and “influencing” in the definition of public assembly content-based,
since they can refer to any subject. The words “petitioning the government for redress of
grievances” come from the wording of the Constitution, so its use cannot be avoided. Finally,
maximum tolerance is for the protection and benefits of all rallyists and is independent of the
content of the expressions in the rally.
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Furthermore, the permit can only be denied on the ground of clear and present
danger to public order, public safety, public convenience, public morals or public health.
This is a recognized exception to the exercise of the right even under the Universal
Declaration of Human Rights and the International Covenant on Civil and Political Rights x x
x. (BAYAN, et al. v. Ermita, et al., G.R. No. 169838, April 25, 2006, En Banc [Azcuna])
The Calibrated Pre-emptive Response (CPR) Policy adopted by the Arroyo

Administration in dealing with public assemblies
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor
General has conceded that the use of the term should now be discontinued, since it does not
mean anything other than the maximum tolerance policy set forth in B.P. No. 880. This is
stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the
Solicitor General.
At any rate, the Court rules that in view of the maximum tolerance mandated by B.P.
No. 880, CPR serves no valid purpose if it means the same thing as maximum tolerance and
is illegal if it means something else. Accordingly, what is to be followed is and should be that
mandated by the law itself, namely, maximum tolerance.
In sum, this Court reiterates its basic policy of upholding the fundamental rights of our
people, especially freedom of expression and freedom of assembly.
For this reason, the so-called calibrated preemptive response policy has no place in
our legal firmament and must be struck down as a darkness that shrouds freedom. It merely
confuses our people and is used by some police agents to justify abuses. On the other hand,
B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict
freedoms; it merely regulates the use of public places as to the time, place and manner of
assemblies. Far from being insidious, “maximum tolerance” is for the benefit of rallyists, not
the government., The delegation to the mayors of the power to issue rally “permits” is valid
because it is subject to the constitutionally-sound “clear and present danger” standard.
(BAYAN, et al. v. Ermita, et al., G.R. No. 169838, April 25, 2006, En Banc [Azcuna])
Freedom of Religion
Ang Ladlad-LGBT Party v. Commission on Elections, G.R. No. 190582, 618 SCRA 32,
April 8, 2010, En Banc (Del Castillo)
The decision of the COMELEC not to allow the Ang Ladlad-LGBT Party to participate
in party-list elections because its members are “immoral,” citing verses from the Bible and
the Koran, was ruled by the SC to be tainted with grave abuse of discretion and, therefore,
nullified, as it violated the non-establishment clause of freedom of religion. In effect, the
COMELEC used religious standard in its decision by using verses from the Bible and the
Koran. The COMELEC, as a government agency, is not supposed to be guided by religious
standards in its decisions and actions.
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Held:
“Our Constitution provides in Article III, Section 5 that”[n]o law shall be made
respecting an establishment of religion, or prohibiting the free exercise thereof.” At
bottom, what our non-establishment clause calls for is “government neutrality in
religious matters.” Clearly, “governmental reliance on religious justification is
inconsistent with this policy of neutrality.” We thus find that it was grave violation of
the non-establishment clause for the COMELEC to utilize the Bible and the Koran to
justify the exclusion of Ang Ladlad.
“Rather than relying on religious belief, the legitimacy of the Assailed

Resolutions should depend, instead, on whether the COMELEC is able to advance
some justification for its rulings beyond mere conformity to religious doctrine.
Otherwise stated, government must act for secular purposes and in ways that have
primarily secular effects. X x x.”
What is a purely ecclesiastical affair to which the State can not meddle following the
Separation of Church and State Doctrine?
An ecclesiastical affair is “one that concerns doctrine, creed, or form of worship of the
church, or the adoption and enforcement within a religious association of needful laws and
regulations for the government of the membership, and the power of excluding from such
associations those deemed not worthy of membership.” Based on this definition, an
ecclesiastical affair involves the relationship between the church and its members and relate
to matters of faith, religious doctrines, worship and governance of the congregation. To be
concrete, examples of this so-called ecclesiastical affairs to which the State cannot meddle
are proceedings for excommunication, ordinations of religious ministers, administration of
sacraments and other activities with attached religious significance. (Pastor Dionisio V.
Austria v. NLRC, G.R. No. 124382, Aug. 16, 1999, 1st Div. [Kapunan])
Iglesia Ni Cristo v. Court of Appeals
Under the non-establishment clause of freedom of religion, when it comes to religious

differences, the State enjoys no banquet of options – neutrality alone is its fixed and
immovable stance. It is not its task to defend one religion against an attack by another
religion. After all, the remedy against bad theology is better theology. Let them duel in the
market place of ideas. The marketplace of ideas demands that speech should be met by
more speech, for it is the spark of opposite speech, the heat of colliding ideas, that can fan
the embers of truth.
James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et al., GR No. 204819, April 8,
2014, En Banc (Mendoza)
Wherefore, THE PETITIONS ARE partially granted. Accordingly, the Court declares
R.A. No. 10354 as NOT UNCONSTITUTIONAL, except with respect to the following
provisions which are declared UNCONSTITUTIONAL:
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1) Section 7 and the corresponding provision in RH-IRR insofar as they: a) require
private health facilities And non-maternity specialty hospitals and hospitals owned
and operated by a religious group to refer patients, not in an emergency or life-
threatening case, as defined under Republic Act no. 8344, to another health
facility which is conveniently accessible; and b) allow minor-parents or minors
who have suffered a miscarriage access to modern methods of family planning
without written consent from their parents or guardian/s;
2) Section 23(a)(1) and the corresponding provision in the RH-IRR, particularly

Section 5.24 thereof, insofar as they punish any healthcare service provider who
fails or refuses to disseminate information regarding programs and services on
reproductive health regardless of his or her religious beliefs;
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they
allow a married individual, not in an emergency or life-threatening case, as
defined under Republic Act No. 8344, to undergo reproductive health procedures
without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they
limit the requirement of parental consent only to elective surgical procedures;
5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly

Section 5.24 thereof, insofar as they punish any healthcare service provider who
fails and/or refuses to refer a patient not in an emergency or life-threatening case,
as defined under Republic Act No. 8344, to another health care service provider
within the same facility or one which is conveniently accessible regardless of his
or her religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section
5.24 thereof, insofar as they punish any public officer who refuses to support
reproductive health programs or shall do any act that hinders the full
implementation of a reproductive health program, regardless of his or her
religious beliefs;
7) Section 17 and the corresponding provision in the RH-IRR regarding the

rendering of pro bono reproductive health service in so far as they affect the
conscientious objector in securing Philhealth accreditation; and
8) Section 3.01(a) and Section 3.01(j) of the RH-IRR, which added the qualifier
“primarily” in defining abortifacients and contraceptives, as they are ultra vires
and, therefore, null and void for contravening Section 4(a) of the RH Law and
violating Section 12, Article II of the Constitution.
Liberty of Abode and Freedom of Movement
The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court. Neither shall the right
to travel be impaired except in the interest of national security, public safety, or public
health, as may be provided by law. (Sec. 6, Art. III, 1987 Constitution)
Limitation on the Right to Travel
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The right to travel is guaranteed by the Constitution. However, the exercise of such
right is not absolute. Section 6, Article III of the 1987 Constitution allows restrictions on
one’s right to travel provided that such restriction is in the interest of national security, public
safety or public health as may be provided by law. This, however, should by no means be
construed as limiting the Court’s inherent power of administrative supervision over lower
courts.
OCA Circular No. 49-2003 does not restrict but merely regulates, by providing
guidelines to be complied by judges and court personnel, before they can go on leave to
travel abroad. To “restrict” is to restrain or prohibit a person from doing something; to
“regulate” is to govern or direct according to rule. To ensure management of court dockets
and to avoid disruption in the administration of justice, OCA Circular No. 49-2003 requires a
judge who wishes to travel abroad to submit, together with his application for leave of
absence duly recommended for approval by his Executive Judge, a certification from the
Statistics Division, Court Management Office of the OCA. The said certification shall state
the condition of his docket based on his Certificate of Service for the month immediately
preceding the date of his intended travel, that he has decided and resolved all cases or
incidents within three (3) months from date of submission, pursuant to Section 15(1) and (2),
Article VIII of the 1987 Constitution.
Thus, for traveling abroad without having been officially allowed by the Court, Judge
Macarine is guilty of violation of OCA Circular No. 49-2003. (Office of Administrative
Services–Office of the Court Administrator v. Judge Ignacio B. Macarine, A.M. No.
MTJ-10-1770, 18 July 2012, 2nd Div. [Brion])
The Right of the People to Information on Matters of Public Concern
In Valmonte v. Belmonte, Jr., the Court emphasized that the information sought must
be “matters of public concern,” access to which may be limited by law. Similarly, the state
policy of full public disclosure extends only to “transactions involving public interest” and may
also be “subject to reasonable conditions prescribed by law.” As to the meanings of the
terms “public interest” and “public concern,” the Court, in Legaspi v. Civil Service
Commission, elucidated:
“In determining whether or not a particular information is of public concern,

there is no rigid test which can be applied. ‘Public concern’ like ‘public interest’ is a
term that eludes exact definition. Both terms embrace a broad spectrum of subjects
which the public may want to know, either because these directly affect their lives, or
simply because such matters naturally arouse the interest of an ordinary citizen. In
the final analysis, it is for the courts to determine on a case by case basis whether
the matter at issue is of interest or importance, as it relates to or affects the public.”
Considered a public concern in the above-mentioned case was the “legitimate

concern of citizens to ensure that government positions requiring civil service eligibility are
occupied only by persons who are eligibles.” So was the need to give the general public
adequate notification of various laws that regulate and affect the actions and conduct of
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citizens, as held in Tanada. Likewise did the “public nature of the loanable funds of the
GSIS and the public office held by the alleged borrowers (members of the defunct Batasang
Pambansa)” qualify the information sought in Valmonte as matters of public interest and
concern. In Aquino-Sarmiento v. Morato, the Court also held that official acts of public
officers done in pursuit of their official functions are public in character; hence, the records
pertaining to such official acts and decisions are within the ambit of the constitutional right of
access to public records.
Under Republic Act No. 6713, public officials and employees are mandated to
“provide information on their policies and procedures in clear and understandable language,
[and] ensure openness of information, public consultations and hearing whenever
appropriate x x x,” except when “otherwise provided by law or when required by the public
interest.” In particular, the law mandates free public access, at reasonable hours, to the
annual performance reports of offices and agencies of government and government-owned
or controlled corporations; and the statements of assets, liabilities and financial disclosures
of all public officials and employees.
In general, writings coming into the hands of public officers in connection with their official
functions must be accessible to the public, consistent with the policy of transparency of
governmental affairs. This principle is aimed at affording the people an opportunity to
determine whether those to whom they have entrusted the affairs of the government are
honestly, faithfully and competently performing their functions as public servants.
Undeniably, the essence of democracy lies in the free-flow of thought; but thoughts and
ideas must be well-informed so that the public would gain a better perspective of vital issues
confronting them and, thus, be able to criticize as well as participate in the affairs of the
government in a responsible, reasonable and effective manner. Certainly, it is by ensuring
an unfettered and uninhibited exchange of ideas among a well-informed public that a
government remains responsive to the changes desired by the people. (Chavez v. PCGG,
299 SCRA 744, Dec. 9, 1998, [Panganiban])
Recognized Restrictions to the Right of the People to Information on Matters of Public

Concern
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;
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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])
Re: Request for Copy of 2008 Statement of Assets, Liabilities and Networth (SALN)
and Personal Data Sheet or Curriculum Vitae of the Justices of the Supreme Court
and Officers and Employees of the Judiciary (A.M. No. 09-8-6-SC, June 13, 2012, En
Banc [Mendoza])
Section 7 of Article III of the Constitution is relevant in the issue of public disclosure
of SALN and other documents of public officials.
Emphasizing the import and meaning of the foregoing constitutional provision, the
Court, in the landmark case of Valmonte v. Belmonte, Jr., elucidated that the right to
information goes hand in hand with the constitutional policies of full public disclosure and
honesty in the public service. It is meant to enhance the widening role of the citizenry in
governmental decision-making as well as in checking abuse in government. The importance
of the said right was pragmatically explicated that the incorporation of this right in the
Constitution is a recognition of the fundamental role of free exchange of information in a
democracy. There can be no realistic perception by the public of the nation’s problems nor a
meaningful democratic decision-making if they are denied access to information of general
interest. Information is needed to enable the members of society to cope with the exigencies
of the times. However, restrictions on access to certain records may be imposed by law.
Thus, while “public concern” like “public interest” eludes exact definition and has
been said to embrace a broad spectrum of subjects which the public may want to know,
either because such matters naturally arouse the interest of an ordinary citizen, the
Constitution itself, under Section 17, Article XI, has classified the information disclosed in the
SALN as a matter of public concern and interest. In other words, a “duty to disclose” sprang
from the “right to know.” Both of constitutional origin, the former is a command while the
latter is a permission. Hence, there is a duty on the part of members of the government to
disclose their SALNs to the public in the manner provided by law.
In the case at bar, the Court notes the valid concerns of the other magistrates
regarding the possible illicit motives of some individuals in their requests for access to such
personal information and their publication. However, custodians of public documents must
not concern themselves with the motives, reasons and objects of the persons seeking to
access to the records. The moral or material injury which their misuse might inflict on others
is the requestor’s responsibility and lookout. While public officers in the custody or control of
public records have the discretion to regulate the manner in which records may be inspected,
examined or copied by interested parties, such discretion does not carry with it the authority
to prohibit access, inspection, examination, or copying of the records. After all, public office
is a public trust.
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The Custodial Investigation Rights
R.A. 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)
The Right to Bail
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?
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 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])
Is a condition in an application for bail that accused be first arraigned before he could
be granted bail valid?
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
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can be arraigned at once and thereafter be released on bail. These scenarios certainly
undermine the accused’s constitutional right not to be put on trial except upon valid
complaint or information sufficient to charge him with a crime and his right to bail. (Lavides
v. CA, 324 SCRA 321, Feb. 1, 2000, 2nd Div. [Mendoza])
Government of Hongkong Special Administrative Region v. Judge Olalia
The decision of the SC in Government of the USA v. Judge Purganan which says
that “no bail rule applies in extradition since bail is available only to one who had arrested
and detained for violation of Philippine criminal laws” was re-examined and, after re-
examination, the rule now is that an extraditee may be allowed to post bail during the
pendency of an extradition proceeding. However, for him to be allowed to post bail, still he
must prove that (1) once granted bail he will not be a flight risk or a danger to the community;
and (2) that there exists special, humanitarian and compelling circumstances that will justify
the grant of bail to him, by a clear and convincing evidence.
The reason why the Purganan ruling was re-examined is because of the modern
trend in public international law where an individual person is no longer considered a mere
object of international law but rather as a subject thereof, and the primacy given to human
rights, among which is the right to liberty.
Juan Ponce Enrile v. Sandiganbayan (3rd Div.), G.R. No. 213847, August 18, 2015, En
Banc (Bersamin)
A close reading of the ruling of the SC in this case allowing former Senator Juan
Ponce Enrile to post bail although he was charged of plunder, a non-bailable offense, was
because of the Olalia ruling.
In this case, former Senator Enrile was shown not to be a flight risk or a danger to the
community (his voluntary surrender to the authorities and his record of respect for court
processes in earlier cases), and that there exist special, humanitarian and compelling
circumstances (his advanced age, fragile state of health and medical predicament that will
require the services of doctors of his choice) that will justify the grant of bail to him. After all,
the main purpose of bail is to assure the presence of an accused during the trial of the case
as required by the court. Thus, the Court held:
“Nonetheless, in now granting Enrile’s petition for certiorari, the Court is

guided by the earlier mentioned principal purpose of bail, which is to guarantee the
appearance of the accused at the trial, or whenever so required by the court. The
Court is further mindful of the Philippine’s responsibility in the international
community arising from the national commitment under the Universal Declaration of
Human Rights x x x.
“This national commitment to uphold the fundamental human rights as well as

value the worth and dignity of every person has authorized the grant of bail not only
to those charged in criminal proceedings but also to extraditees upon a clear and
convincing showing: (1) that the detainee will not be a flight risk or a danger to the
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community; and (2) that there exist special, humanitarian and compelling
circumstances.
“In our view, his social and political standing and his having immediately
surrendered to the authorities upon his having been charged in court indicate that the
risk of his flight or escape from this jurisdiction is highly unlikely. His personal
disposition from the onset of his indictment for plunder, formal or otherwise, has
demonstrated his utter respect for the legal processes of this country. We also do
not ignore that at an earlier time many years ago when he had been charged with
rebellion with murder and multiple frustrated murder, he already evinced a similar
personal disposition of respect for the legal processes, and was granted bail during
the pendency of his trial because he was not seen as a flight risk. With his solid
reputation in both his public and his private lives, his long years of public service, and
history’s judgment of him being at stake, he should be granted bail.
“The currently fragile state of Enrile’s health presents another compelling

justification for his admission to bail x x x.
“X x x
“Bail for the provisional liberty to the accused, regardless of the crime
charged, should be allowed independently of the merits of the charge, provided his
continued incarceration is clearly shown to be injurious to his health or to endanger
his life. Indeed, denying him bail despite imperiling hid health and life would not
serve the true objective of preventive incarceration during the trial.
“Granting bail to Enrile on the foregoing reasons is not unprecedented. X x x
“It is relevant to observe that granting provisional liberty to Enrile will then
enable him to have his medical condition be properly addressed and better attended
to by competent physicians in the hospitals of his choice. This will not only aid in his
adequate preparation of his defense but, more importantly, will guarantee his
appearance in court for the trial.
“On the other hand, to mark time in order to wait for the trial to finish before a
meaningful consideration of the application for bail can be had is to defeat the
objective of bail, which is to entitle the accused to provisional liberty pending the trial.
There may be circumstances decisive of the issue of bail x x x that the courts can
already consider in resolving the application for bail without awaiting the trial to finish.
The Court thus balances the scales of justice by protecting the interest of the People
through ensuring his personal appearance at the trial, and at the same time realizing
for him the guarantees of due process as well as to be presumed innocent until
proven guilty.”
The Right against Self-incrimination
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It bears emphasis, however, that under the above-quoted provisions, what is actually
proscribed is the use of physical or moral compulsion to extort communication from the
accused-appellant and not the inclusion of his body in evidence when it may be material.
For instance, substance emitted from the body of the accused may be received as evidence
in prosecution for acts of lasciviousness (US v. Tan Teng, 23 Phil. 145 [1912]) and morphine
forced out of the mouth of the accused may also be used as evidence against him (US v.
Ong Siu Hong, 36 Phil. 735 [1917]). Consequently, although accused-appellant insists that
hair samples were forcibly taken from him and submitted to the NBI for forensic examination,
the hair samples may be admitted in evidence against him, for what is proscribed is the use
of testimonial compulsion or any evidence communicative in nature acquired from the
accused under duress. (People v. Rondero, 320 SCRA 383, 399-401, Dec. 9, 1999, En
Banc [Per Curiam])
Does the right against self-incrimination extend to administrative proceedings?
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the
right against self-incrimination under Section 17, Article III of the 1987 Constitution which is
ordinarily available only in criminal prosecutions, extends to administrative proceedings
which possess a criminal or penal aspect, such as an administrative investigation of a
licensed physician who is charged with immorality, which could result in his loss of the
privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal v.
Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one’s license as a
medical practitioner, is an even greater deprivation than forfeiture of property. (Secretary of
Justice v. Lantion, 322 SCRA 160, 184, Jan. 18, 2000, En Banc [Melo])
May the Right against Self-incrimination be validly invoked during Inquiries in Aid of
Legislation?
[I]t has been held that “a congressional committee’s right to inquire is ‘subject to all
relevant limitations placed by the Constitution on governmental action,’ including ‘the
relevant limitations of the Bill of Rights’.”
One of the basic rights guaranteed by the Constitution to an individual is the right
against self-incrimination. (Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA
767, Nov. 20, 1991, En Banc [Padilla])
What are the two types of immunity statutes? Which has broader scope of protection?
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])
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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?
[W]e reject respondent court’s 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-à-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])
The Right against Double Jeopardy
The Two (2) Kinds of Double Jeopardy:
Our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of
Clause 20, Section 1(now Sec. 21), 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
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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)
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])
The Right against Ex Post Facto Law and Bill of Attainder
What is a bill of attainder? Is P.D. 1866 a bill of attainder?
[T]he Court, in People v. Ferrer, defined a bill of attainder as a legislative act which
inflicts punishment on individuals or members of a particular group without a judicial trial.
Essential to a bill of attainder are a specification of certain individuals or a group of
individuals, the imposition of a punishment, penal or otherwise, and the lack of judicial trial.
This last element, the total lack of court intervention in the finding of guilt and the
determination of the actual penalty to be imposed, is the most essential. P.D. No. 1866 does
not possess the elements of a bill of attainder. It does not seek to inflict punishment without
a judicial trial. Nowhere in the measure is there a finding of guilt and an imposition of a
corresponding punishment. What the decree does is to define the offense and provide for
the penalty that may be imposed, specifying the qualifying circumstances that would
aggravate the offense. There is no encroachment on the power of the court to determine
after due hearing whether the prosecution has proved beyond reasonable doubt that the
offense of illegal possession of firearms has been committed and that the qualifying
circumstances attached to it has been 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])
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What is an ex post facto law? Is R.A. No. 8249 an ex post facto law?
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 Sandiganbayan’s
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.
Petitioner’s 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 accused’s 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])
CITIZENSHIP
Citizenship is not a matter of convenience. It is a badge of identity that comes with

attendant civil and political rights accorded by the State to its citizens. It likewise demands
the concomitant duty to maintain allegiance to one’s flag and country. (Casan Macode
Maquiling v. COMELEC, et al., G.R. No. 195649, April 16, 2013, En Banc [Sereno, CJ])
The Jus Sanguinis Principle on Citizenship
The Philippine law on citizenship adheres to the principle of jus sanguinis.

Thereunder, a child follows the nationality or citizenship of the parents regardless of the
place of his/her birth, as opposed to the doctrine of jus soli which determines nationality or
citizenship on the basis of place of birth. (Valles v. COMELEC, 337 SCRA 543, Aug. 9,
2000, En Banc [Purisima])
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Ways of acquiring Citizenship
There are two ways of acquiring citizenship: (1) by birth, and (2) by naturalization.
These ways of acquiring citizenship correspond to the two kinds of citizens: the natural-born
citizen, and the naturalized citizen. A person who at the time of his birth is a citizen of a
particular country, is a natural-born citizen thereof.
As defined in the Constitution, natural-born citizens “are those citizens of the

Philippines from birth without having to perform any act to acquire or perfect his Philippine
citizenship.”
On the other hand, naturalized citizens are those who have become Filipino citizens
through naturalization, generally under Commonwealth Act No. 473, otherwise known as the
Revised Naturalization Law, which repealed the former Naturalization Law (Act No. 2927),
and by Republic Act No. 530. (Antonio Bengson III v. HRET, G.R. No. 142840, May 7,
2001, En Banc [Kapunan])
Natural-born Citizens
Natural-born citizens are those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect their Philippine citizenship.
Those who elect Philippine citizenship in accordance with paragraph (3), Section 1
hereof shall be deemed natural-born citizens. (Section 2, Article IV, 1987
Constitution)
In general, there are only two (2) kinds of Filipino citizens, i.e., natural-born and
naturalized. There is no third category. If one did not have to undergo the cumbersome
process of naturalization, it means that he is natural-born. (Antonio Bengson III v. HRET,
G.R. No. 142840, May 7, 2001, En Banc [Kapunan])
Is a Foundling a Natural-born Citizen?
To deny full Filipino citizenship to all foundlings and render them stateless just
because there may be a theoretical chance that one among the thousands of these
foundlings might be the child of not just one, but two, foreigners is downright discriminatory,
irrational, and unjust. It just doesn’t make any sense. Given the statistical certainty 99.9% -
that any child born in the Philippines would be a natural-born citizen, a decision denying
foundlings such status is effectively a denial of their birthright. There is no reason why this
Honorable Court should use an improbable hypothetical to sacrifice the fundamental political
rights of an entire class of human beings. Your Honor, constitutional interpretation and the
use of common sense are not separate disciplines.
As a matter of fact, foundlings are as a class, natural-born citizens. While the 1935
Constitution’s enumeration is silent as to foundlings, there is no restrictive language which
would definitely exclude foundlings either. Because of silence and ambiguity in the
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numeration with respect to foundlings, there is a need to examine the intent of the framers.
Xxx
[T]he deliberations of the 1934 Constitutional Convention show that the framers
intended foundlings to be covered by the enumeration. X x x
Though the Rafols amendment was not carried out, it was not because there was
any objection to the notion that persons of “unknown parentage” are not citizens but only
because their number was not enough to merit specific mention. X x x
In other words, the constitutional silence is fully explained in terms of linguistic

efficiency and the avoidance of redundancy. The policy is clear: it is to recognize foundlings,
as a class, as Filipinos, under Article IV, Section 1(3) of the 1935 Constitution. This inclusive
policy is carried over into the 1973 and 1987 Constitutions. X x x
Domestic laws on adoption also support the principle that foundlings are Filipinos.
These laws do not provide that adoption confers citizenship upon the adoptee. Rather, the
adoptee must be a Filipino in the first place to be adopted. X x x
Foundlings are likewise citizens under international law. Under the 1987 Constitution,
an international law can become part of the sphere of domestic law either by transformation
or incorporation. X x x
The common thread of the UDHR (Universal Declaration of Human Rights), UNCRC
(UN Convention on the Rights of the Child) and ICCPR (International Covenant on Civil and
Political Rights) is to obligate the Philippines to grant nationality from birth and ensure that
no child is stateless. This grant of nationality must be at the time of birth, and it cannot be
accomplished by the application of our present naturalization laws, Commonwealth Act No.
473, as amended, and R.A. No. 9139, both of which require the applicant to be at least
eighteen (18) years old.
The principles found in two conventions, while yet ungratified by the Philippines, are
generally accepted principles of international law. The first is Article 14 of the 1930 Hague
Convention on Certain Questions Relating to the Conflict of Nationality Laws under which a
foundling is presumed to have the “nationality of the country of birth,” x x x.
A foundling is, until the contrary is proved, presumed to have been born on the
territory of the State in which it was found.
The second is the principle that a foundling is presumed born of citizens of the
country where he is found, contained in Article 2 of the 1961 United Nations Convention on
the Reduction of Statelessness x x x.
Xxx
In sum, all of the international law conventions and instruments on the matter of
nationality of foundlings were designed to address the plight of a defenseless class which
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suffers from a misfortune not of their making. We cannot be restrictive as to their application
if we are a country which calls itself civilized and a member of the community of nations. X x
x (Mary Grace Natividad S. Poe-Llamanzares v. COMELEC, G R. No. 221697, March 8,
2016, En Banc [Perez])
Loss or Reacquisition of Philippine Citizenship
Philippine citizenship may be lost or reacquired in the manner provided by law

(Section 3, Article IV, 1987 Constitution)
There are three (3) ways by which Philippine citizenship may be reacquired, namely:
(1) by naturalization; (2) by repatriation; and (3) by direct act of Congress.
The Effect of Marriage
Citizens of the Philippines who marry aliens shall retain their citizenship,
unless by their act or omission they are deemed, under the law, to have renounced it.
(Section 4, Article IV, 1987 Constitution)
Dual Citizenship and Dual Allegiance
Dual allegiance of citizens is inimical to the national interest and shall be dealt
with by law. (Section 5, Article IV, 1987 Constitution)
This provision is not self-executing. The word employed by Section 5 is “shall.” The
law referred to is a future law.
Dual Citizenship distinguished from Dual Allegiance.
Dual citizenship arises when, as a result of the concurrent application of the different
laws of two or more states, a person is simultaneously considered a national by the said
states. For instance, such a situation may arise when a person whose parents are citizens
of a state which adheres to the principle of jus sanguinis is born in a state which follows the
doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is
concurrently considered a citizen of both states.
Dual allegiance, on the other hand, refers to a situation in which a person

simultaneously owes, by some positive act, loyalty to two or more states. While dual
citizenship is involuntary, dual allegiance is the result of an individual’s volition. (Mercado v.
Manzano, 307 SCRA 630, May 26, 1999, En Banc [Mendoza])
What is the main concern of Section 5, Article IV, 1987 Constitution, on citizenship?
Consequently, are persons with mere dual citizenship disqualified to run for elective
local positions under Section 40(d) of the Local Government Code?
In including Section 5 in Article IV on citizenship, the concern of the Constitutional

Commission was not with dual citizens per se but with naturalized citizens who maintain their
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allegiance to their countries of origin even after their naturalization. Hence, the phrase “dual
citizenship” in R.A. No. 7160, Section 40(d) (Local Government Code) must be understood
as referring to “dual allegiance.” Consequently, persons with mere dual citizenship do not
fall under this disqualification. Unlike those with dual allegiance, who must be subject to
strict process with respect to the termination of their status, for candidates with dual
citizenship, it should suffice if, upon the filing of their certificate of candidacy, they elect
Philippine citizenship to terminate their status as persons with dual citizenship considering
that their condition is the unavoidable consequence of conflicting laws of different states.
By electing Philippine citizenship, such candidates at the same time forswear

allegiance to the other country of which they are also citizens and thereby terminate their
status as dual citizens. It may be that, from the point of view of the foreign state and of its
laws, such an individual has not effectively renounced his foreign citizenship. That is of no
moment. (Mercado v. Manzano, G.R. No. 135083, 307 SCRA 630, May 26, 1999
[Mendoza])
Instances when a citizen of the Philippines may possess dual citizenship considering
the citizenship clause (Article IV) of the Constitution.
1) Those born of Filipino fathers and/or mothers in foreign countries which follow the
principle of jus soli;
2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws
of their father’s country such children are citizens of that country;
3) Those who marry aliens if by the laws of the latter’s country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced Philippine citizenship. (Mercado v. Manzano, G.R. No. 135083, 307
SCRA 630, May 26, 1999 [Mendoza])
Republic Act No. 9225 (The Citizenship Retention and Reacquisition Act of 2003)
Sometimes, this law has been referred to as the dual citizenship law.
The law applies to: (1) former natural-born citizens of the Philippines who have
already become citizens of a foreign country through naturalization; and (2) natural-born
citizens of the Philippines who may wish to become a citizen of a foreign country through
naturalization after the effectivity of this Act.
In both cases, they are given the opportunity to either reacquire (reacquisition) or
retain (retention) their Philippine citizenship. Thus, in effect, they will possess dual
citizenship.
Casan Macode Maquiling v. COMELEC, et al., G.R. No. 195649, April 16, 2013, En Banc
(Sereno, CJ)
When after renouncing his American citizenship upon his filing of certificate of
candidacy for mayor, it was established that he travelled several times to the US using his
American passport, that was an effective recantation of his renunciation of his foreign
citizenship. Thus, he reverted to his prior status as a person having dual citizenship and,
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therefore, disqualified to run for mayor pursuant to Sec. 40 (d) of the Local Government
Code (R.A. No. 7061).
Held:
Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003 provides:
Those who retain or re-acquire Philippine citizenship under this Act shall
enjoy full civil and political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following conditions:
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath. X x x
Rommel Arnado took all the necessary steps to qualify to run for a public office. He
took the Oath of Allegiance and renounced his foreign citizenship. There is no question that
after performing these twin requirements required under Section 5(2) of R.A. Act No. 9225 or
the Citizenship Retention and Re-acquisition Act of 2003, he became eligible to run for
public office.
Indeed, Arnado took the Oath of Allegiance not just only once but twice. By taking
the Oath of Allegiance to the Republic, Arnado re-acquired his Philippine citizenship. At the
time, however, he likewise possessed American citizenship. Arnado had therefore become
a dual citizen.
After reacquiring his Philippine citizenship, Arnado renounced his American

citizenship by executing an Affidavit of Renunciation, thus completing the requirements for
eligibility to run for public office.
By renouncing his foreign citizenship, he was deemed to be solely a Filipino citizen,

regardless of the effect of such renunciation under the laws of the foreign country.
However, this legal presumption does not operate permanently and is open to attack
when, after renouncing the foreign citizenship, the citizen performs positive acts showing his
continued possession of a foreign citizenship.
Arnado himself subjected the issue of his citizenship to attack when, after renouncing
his foreign citizenship, he continued to use his US passport to travel in and out of the country.
The pivotal question to determine is whether he was solely and exclusively a Filipino citizen
at the time he filed his certificate of candidacy, thereby rendering him eligible to run for public
office.
The renunciation of foreign citizenship is not a hollow oath that can simply be
professed at any time, only to be violated the next day. It requires an absolute and perpetual
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renunciation of the foreign citizenship and a full divestment of all civil and political rights
granted by the foreign country which granted the citizenship.
Xxx
While the act of using a foreign passport is not one of the acts enumerated in
Commonwealth Act No. 63 constituting renunciation and loss of Philippine citizenship, it is
nevertheless an act which repudiates the very oath of renunciation required for a former
Filipino citizen who is also a citizen of another country to be qualified to run for a local
elective position.
Xxx
We agree with the COMELEC En Banc that such act of using a foreign passport
does not divest Arnado of his Filipino citizenship, which he acquired by repatriation.
However, by representing himself as an American citizen, Arnado voluntarily and effectively
reverted to his earlier status as a dual citizen. Such reversion was not retroactive; it took
place the instant Arnado represented himself as an American citizen by using his US
passport.
This act of using a foreign passport after renouncing one’s foreign citizenship is fatal
to Arnado’s bid for public office, as it effectively imposed on him a disqualification to run for
an elective local position.
Arnado’s category of dual citizenship is that by which foreign citizenship is acquired

through a positive act of applying for naturalization. This is distinct from those considered
dual citizens by virtue of birth, who are not required by law to take the oath of renunciation
as the mere filing of the certificate of candidacy already caries with it an implied renunciation
of foreign citizenship. Dual citizens by naturalization, on the other hand, are required to take
not only the Oath of Allegiance to the Republic of the Philippines but also to personally
renounce foreign citizenship in order to qualify as a candidate for public office.
By the time he filed his certificate of candidacy Arnado was a dual citizen enjoying
the rights and privileges of Filipino and American citizenships. He was qualified to vote, but
by express disqualification under Section 40(d) of the Local Government Code, he was not
qualified to run for a local elective position.
Xxx
The citizenship requirement for elective public office is a continuing one. It must be
possessed not just at the time of the renunciation of the foreign citizenship but continuously.
Any act which violates the oath of renunciation opens the citizenship issue to attack.
We agree with the pronouncement of the COMELEC First Division that “Arnado’s act
of continuously using his US passport effectively negated his Affidavit of Renunciation.” This
does not mean that he failed to comply with the twin requirements under R.A. No. 9225, for
he in fact did. It was after complying with the requirements that he performed positive acts
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which effectively disqualified him from running for an elective public office pursuant to
Section 40(d) of the Local Government Code of 1991.
Xxx
Besides, Arnado’s subsequent use of his Philippine passport does not correct the
fact that after he renounced his foreign citizenship and prior to filing his certificate of
candidacy, he used his US passport. In the same way that the use of his foreign passport
does not undo his Oath of Renunciation, his subsequent use of his Philippine passport does
not undo his earlier use of his US passport.
Xxx
We therefore hold that Arnado, by using his US passport after renouncing his
American citizenship, has recanted the same Oath of Renunciation he took. Section 40(d) of
the Local Government Code applies to his situation. He is disqualified not only from holding
the public office but even from becoming a candidate in the May 2011 elections.
Naturalization
Naturalization signifies the act of formally adopting a foreigner into the political body
of a nation by clothing him or her with the privileges of a citizen. (Edison So v. Republic of
the Philippines, G.R. No. 170603, January 29, 2007, 3rd Div., [Callejo, Sr.])
Ways by which an Alien may become a Citizen by Naturalization
Under current and existing laws, there are three ways by which an alien may become
a citizen by naturalization: (a) administrative naturalization pursuant to R.A. No. 9139; (b)
judicial naturalization pursuant to C.A. No. 473, as amended; and (c) legislative
naturalization in the form of a law enacted by Congress bestowing Philippine citizenship to
an alien. (Edison So v. Republic of the Philippines, G.R. No. 170603, January 29, 2007,
3rd Div., [Callejo, Sr.])
Republic Act No. 9139 (Providing for Administrative Naturalization of an Alien)
R.A. No. 9139 was enacted as a remedial measure intended to make the process of
acquiring Philippine citizenship less tedious, less technical and more encouraging. It
likewise addresses the concerns of degree holders who, by reason of lack of citizenship
requirement, cannot practice their profession, thus promoting “brain gain” for the Philippines.
May All Aliens Avail of the Benefits of Administrative Naturalization under R.A. No.
9139?
R.A. No. 9139 may be availed of only by native-born aliens who lived here in the
Philippines all their lives, who never saw any other country and all along thought that they
were Filipinos; who have demonstrated love and loyalty to the Philippines and affinity to the
customs and traditions of the Filipino people. To reiterate, the intention of the legislature in
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enacting R.A. No. 9139 was to make the process of acquiring Philippine citizenship less
tedious, less technical and more encouraging which is administrative rather than judicial in
nature. What the legislature had in mind was merely to prescribe another mode of acquiring
Philippine citizenship which may be availed of by native born aliens. The only implication is
that, a native born alien has the choice to apply for judicial or administrative naturalization,
subject to the prescribed qualifications and disqualifications. (Edison So v. Republic of the
Philippines, G.R. No. 170603, January 29, 2007, 3rd Div., [Callejo, Sr.]
ADMINISTRATIVE LAW
The Doctrine of Primary Jurisdiction or Prior Resort
The Doctrine of Exhaustion of Administrative Remedies
Under the doctrine of exhaustion of administrative remedies, before a party is

allowed to seek the intervention of the court, one should have availed first of all the means of
administrative processes available. If resort to a remedy within the administrative machinery
can still be made 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 court’s judicial power can be sought. For reasons of comity and convenience,
courts of justice shy away from 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 dispose of the case. X x x. (Saturnino C. Ocampo, et al.
v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016, En
Banc [Peralta])
THE LAW OF PUBLIC OFFICERS
Public Office is a Public Trust
Conchita Carpio-Morales v. Court of Appeals (6th Div.), G.R. Nos. 217126-27,

November 10, 2015 (Perlas-Bernabe)
Nature of Appointment as Discretionary
Flores v. Drilon
The Powers of the Ombudsman
Conchita Carpio-Morales v. Court of Appeals (6th Div.), G.R. Nos. 217126-27,

November 10, 2015 (Perlas-Bernabe)
The Ombudsman has Administrative Disciplinary Authority over all Public Officers
and Employees
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The Office of the Ombudsman shall have disciplinary authority over all
elective and appointive officials of the Government and its subdivisions,
instrumentalities and agencies, including Members of the Cabinet, local government,
government-owned or controlled corporations and their subsidiaries, except over
officials who may be removed only by impeachment or over Members of Congress,
and the Judiciary. (Sec. 21, R.A. No. 6770)
In the exercise of its Administrative Jurisdiction, the Ombudsman may impose

Preventive Suspension
The Ombudsman or his Deputy may preventively suspend any officer or

employee under his authority pending an investigation, if in his judgment the
evidence of guilt is strong, and (a) the charge against such officer or employee
involves dishonesty, oppression or grave misconduct or neglect in the performance
of duty; (b) the charges would warrant removal from the service; or (c) the
respondent’s continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the
Office of the Ombudsman but not more than six (6) month, except when the delay in
the disposition of the case by the Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which case the period of such delay shall
not be counted in computing the period of suspension herein provided. (Sec. 24,
R.A. No. 6770)
No Writ of Injunction shall be issued by any Court to delay an Investigation being

conducted by the Ombudsman
No writ of injunction shall be issued by any court to delay an investigation

being conducted by the Ombudsman under this Act, unless there is a prima facie
evidence that the subject matter of the investigation is outside the jurisdiction of the
Office of the Ombudsman.
No court shall hear any appeal or application for remedy against the decision
or findings of the Ombudsman, except the Supreme Court, on pure question of law.
(Sec. 14, R.A. No. 6770)
Caveat:
The second paragraph of Section 14 of Republic Act No. 6770 is declared

UNCONSTITUTIONAL, while the policy against the issuance of provisional injunctive writs
by courts other than the Supreme Court to enjoin an investigation conducted by the Office of
the Ombudsman under the first paragraph of the said provision is declared INEFFECTIVE
until the Court adopts the same as part of the rules of procedure through an administrative
circular duly issued therefor. (Conchita Carpio Morales v. Court of Appeals [Sixth
Division], GR Nos. 217126-27, November 10, 2015, En Banc [Perlas-Bernabe]).
Effectivity and Finality of Decisions of Ombudsman

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All provisionary orders of the Office of the Ombudsman are immediately
effective and executory.
Xxx
In all administrative disciplinary cases, orders, directives, or decisions of the

Office of the Ombudsman may be appealed to the Supreme Court by filing a petition
for certiorari within ten (10) days from receipt of the written notice of the order,
directive or decision or denial of the motion for reconsideration in accordance with
Rule 45 of the Rules of Court. (This provision was declared unconstitutional by
the Supreme Court in Fabian v. Desierto, 356 Phil. 787 [1998], as it contravened
Section 30, Article VI of the Constitution. In effect the provision increased the
appellate jurisdiction of the Supreme Court without its consent under that
provision. Henceforth, decisions of the Ombudsman in administrative cases
should be filed with the Court of Appeals under that ruling.)
The Law on Nepotism
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])
What are the exemptions from the operation of the rules on nepotism?
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)
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Preventive Suspension
Jurisprudential law (Reyes v. Delim, 368 SCRA 323, 333 [2001]; Yabut v. Office of
the Ombudsman, 233 SCRA 310, 316-317 [1994]; Beja, Sr. v. Court of Appeals, 207 SCRA
689, 694 [1992]) establishes a clear-cut distinction between suspension as preventive
measure and suspension as penalty. The distinction, by considering the purpose aspect of
the suspensions, is readily cognizable as they have different ends to be achieved.
Preventive suspension is merely a preventive measure, a preliminary step in an

administrative investigation. The purpose of the suspension order is to prevent the accused
from using his position and the powers and prerogatives of his office to influence potential
witnesses or tamper with records which may be vital in the prosecution of the case against
him. If after such investigation, the charge is established and the person investigated is
found guilty of acts warranting his suspension or removal, then he is suspended, removed or
dismissed. This is the penalty.
That preventive suspension is not a penalty is in fact explicitly provided by Section 24

of Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987
(Executive Order No. 292) and other Pertinent Civil Service Laws.
Xxx
Clearly, service of the preventive suspension cannot be credited as service of penalty.

To rule otherwise is to disregard above-quoted Sections 24 and 25 of the Administrative
Code of 1987 and render nugatory the substantial distinction between, and purposes of
imposing preventive suspension and suspension as penalty.
Xxx
En passant, neither may the concept of crediting, criminal law, preventive

imprisonment in the service of a convict’s term of imprisonment (Article 29 of the Revised
Penal Code) be applied to preventive suspension during investigation in administrative law in
the service of a respondent’s final penalty of suspension. For not only are they distinct in
the objective or purpose, or in their nature as preventive imprisonment involves restriction
of personal liberties which is not the case with preventive suspension; the respective laws
covering them are explicit. (Quimbo v. Gervacio, 466 SCRA 277, Aug. 9, 2005, 3rd Div.
[Carpio-Morales])
The Doctrine of Condonation
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 officer’s 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])
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Reason for the Doctrine
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])
Caveat:
This Doctrine of Condonation was abandoned by the Supreme Court in the more
recent case of Conchita Carpio Morales v. Court of Appeals (Sixth Division), GR Nos.
217126-27, November 10, 2015, En Banc (Perlas-Bernabe). However, the abandonment
of the doctrine was given prospective application only.
The Origin of the Condonation Doctrine
Generally speaking, condonation has been defined as “[a] victim’s express or implied
forgiveness of an offense, [especially] by treating the offender as if there had been no
offense.”
The condonation doctrine – which connotes this same sense of complete

extinguishment of liability x x x - is not based on statutory law. It is a jurisprudential creation
that originated from the 1959 case of Pascual v. Hon. Provincial Board of Nueva Ecija
(106 Phil. 466 [1959]), which was therefore decided under the 1935 Constitution.
Xxx
As there was no legal precedent on the issue at that time, the Court, in Pascual,
resorted to American authorities and “found that cases on the matter are conflicting due in
part, probably, to differences in statutes and constitutional provisions, and also, in part, to a
divergence of views with respect to the question of whether the subsequent election or
appointment condones the prior misconduct.” Without going into the variables of these
conflicting views and cases, it proceeded to state that:
The weight of authorities x x x seems to incline toward the rule denying the
right to remove from office because of misconduct during a prior term, to which
we fully subscribe.
The conclusion is at once problematic since the Court has now uncovered that there
is really no established weight of authority in the United States (US) favoring the doctrine of
condonation, which, in the words of Pascual, theorizes that an official’s re-election denies
the right to remove him from office due to a misconduct during a prior term. In fact, x x x at
least seventeen (17) states in the US have abandoned the condonation doctrine. X x x
Xxx
Overall, the foregoing data clearly contravenes the preliminary conclusion in Pascual
that there is a “weight of authority” in the US on the condonation doctrine. In fact, without
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any cogent exegesis to show that Pascual had accounted for the numerous factors relevant
to the debate on condonation, an outright adoption of the doctrine in this jurisdiction would
not have been proper.
At any rate, these US cases are only of persuasive value in the process of this
Court’s decision-making. “[They] are not relied upon as precedents, but as guides of
interpretation.” Therefore, the ultimate analysis is on whether or not the condonation
doctrine, as espoused in Pascual, and carried over in numerous cases after, can be held up
against prevailing legal norms. Note that the doctrine of stare decisis does not preclude this
Court from revisiting existing doctrine. X x x
In this case, the Court agrees x x x that since the time Pascual was decided, the
legal landscape has radically shifted. Again, Pascual was a 1959 case decided under the
1935 Constitution, which dated provisions do not reflect the experience of the Filipino people
under the 1973 and 1987 Constitutions. Therefore, the plain difference in setting, including,
of course, the sheer impact of the condonation doctrine on public accountability, calls for
Pascual’s judicious re-examination.
Testing the Condonation Doctrine
Pascual’s ratio decidendi may be dissected into three (3) parts:
First, the penalty of removal may not be extended beyond the term in which the
public officer was elected for each term is separate and distinct x x x.
Second, an elective official’s re-election serves as a condonation of previous

misconduct, thereby cutting the right to remove him therefor; and
Third, courts may not deprive the electorate, who are ssumed to have known the life
and character of candidates, of their right to elect officers x x x.
Xxx
The Court, citing Civil Service Commission v. Sojor (577 Phil. 52, 72 [2008]), also
clarified that the condonation doctrine would not apply to appointive officials since, as
to them, there is no sovereign will to disenfranchise x x x.
Xxx
A thorough review of the cases post-1987 x x x would show that the basis for
condonation under the prevailing constitutional and statutory framework was never
accounted for. What remains apparent from the text of these cases is that the basis for
condonation, as jurisprudential doctrine, was – and still remains – the above-cited postulates
of Pascual, which was lifted from rulings of US courts where condonation was amply
supported by their own state laws. With respect to its applicability to administrative cases,
the core premise of condonation - that is, an elective official’s re-election cuts off the right to
remove him for an administrative offense committed during a prior term – was adopted hook,
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line, and sinker in our jurisprudence largely because the legality of that doctrine was never
tested against existing legal norms. As in the US, the propriety of condonation is – as it
should be – dependent on the legal foundation of the adjudicating jurisdiction. Hence, the
Court undertakes an examination of our current laws in order to determine if there is legal
basis for the continued application of the doctrine of condonation.
Xxx
As earlier intimated, Pascual was a decision promulgated in 1959. Therefore, it was

decided within the context of the 1935 Constitution which was silent with respect to public
accountability, or of the nature of public office being a public trust. The provision in the 1935
Constitution that comes closest in dealing with public office is Section 2, Article II which
states that “[t]he defense of the State is a prime duty of government, and in the fulfillment of
this duty all citizens may be required by law to render personal military or civil service.”
Perhaps owing to the 1935 Constitution’s silence on public accountability, and considering
the dearth of jurisprudential rulings on the matter, as well as the variance in the policy
considerations, there was no glaring objection confronting the Pascual Court in adopting the
condonation doctrine that originated from select US cases existing at that time.
With the advent of the 1973 Constitution, the approach in dealing with public officers
underwent a significant change. The new charter introduced an entire article on
accountability of public officers, found in Article XIII. Section 1 thereof positively recognized,
acknowledged, and declared that “[p]ublic office is a public trust.” Accordingly, “[p]ublic
officers and employees shall serve with the highest degree of responsibility, integrity,
loyalty and efficiency, and shall remain accountable to the people.”
After the turbulent decades of Martial Law rule, the Filipino People have framed and
adopted the 1987 Constitution, which sets forth in the Declaration of Principles and State
Policies in Article II that “[t]he State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruption.”
Learning how unbridled power could corrupt public servants under the regime of a dictator,
the Framers put primacy on the integrity of the public service by declaring it as a
constitutional principle and a State policy. More significantly, the 1987 Constitution
strengthened and solidified what have been first proclaimed in the 1973 Constitution by
commanding public officers to be accountable to the people at all times.
Xxx
The same mandate is found in the Revised Administrative Code under the section of
the Civil Service Commission, and also, in the Code of Conduct and Ethical Standards for
Public Officials and Employees.
For local elective officials like Binay, Jr., the grounds to discipline, suspend or
remove an elective local official from office are stated in Section 60 of Republic Act
No. 7160, otherwise known as the “Local Government Code of 1991” (LGC), which was
approved on October 10, 1991, and took effect on January 1, 1992.
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Xxx
Related to this provision is Section 40 (b) of the LGC which states that those
removed from office as a result of an administrative case shall be disqualified from
running for any elective local position.
In the same sense, Section 52 (a) of the RRACCS provides that the penalty of
dismissal from service carries the accessory penalty of perpetual disqualification
from holding public office.
In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall not
exceed the unexpired term of the elective local official nor constitute a bar to his candidacy
for as long as he meets the qualifications required for the office. Note, however, that the
provision only pertains to the duration of the penalty and its effect on the official’s candidacy.
Nothing therein states that the administrative liability therefor is extinguished by the
fact of re-election x x x.
Reading the 1987 Constitution together with the above-cited legal provisions now
leads this Court to the conclusion that the doctrine of condonation is actually bereft of legal
bases.
To begin with, the concept of public office is a public trust and the corollary
requirement of accountability to the people at all times, as mandated under the 1987
Constitution, is plainly inconsistent with the idea that an elective local official’s
administrative liability for a misconduct committed during a prior term can be wiped off by the
fact that he was elected to a second term of office, or even another elective post. Election
is not a mode of condoning an administrative offense, and there is simply no
constitutional or statutory basis in our jurisdiction to support the notion that an official elected
for a different term is fully absolved of any administrative liability arising from an offense
done during a prior term. In this jurisdiction, liability arising from administrative offenses
may be condoned by the President in light of Section 19, Article VII of the 1987
Constitution which was interpreted in Llamas v. Orbos (279 Phil. 920, 937 [1991]) to apply to
administrative offenses x x x.
Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline
enumerated therein cannot anymore be invoked against an elective local official to hold him
administratively liable once he is re-elected to office. In fact, Section 40 (b) of the LGC
precludes condonation since in the first place, an elective local official who is meted with the
penalty of removal could not be re-elected to an elective local position due to a direct
disqualification from running for such post. In similar regard, Section 52 (a) of the RRACCS
imposes penalty of perpetual disqualification from holding public office as an accessory to
the penalty of dismissal from service.
To compare, some of the cases adopted in Pascual were decided by US State

jurisdictions wherein the doctrine of condonation of administrative liability was supported by
either a constitutional or statutory provision stating, in effect, that an officer cannot be
removed by a misconduct committed during a previous term, or that the disqualification to
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hold the office does not extend beyond the term in which the official’s delinquency
occurred. X x x. Hence, owing to either their variance or inapplicability, none of these
cases can be used as basis for the continued adoption of the condonation doctrine under our
existing laws.
At best, Section 66 (b) of the LGC prohibits the enforcement of the penalty of
suspension beyond the unexpired portion of the elective local official’s term, and likewise
allows said official to still run for re-election. X x x. However, as previously stated, nothing
in Section 66 (b) states that the elective local official’s administrative liability is extinguished
by the fact of re-election. Thus, at all events, no legal provision actually supports the theory
that the liability is condoned.
Relatedly, it should be clarified that there is no truth in Pascual’s postulation that the
courts would be depriving the electorate of their right to elect their officers if condonation
were not to be sanctioned. In political law, election pertains to the process by which a
particular constituency chooses an individual to hold a public office. In this jurisdiction, there
is, again, no legal basis to conclude that election automatically implies condonation. Neither
is there any legal basis to say that every democratic and republican state has an inherent
regime of condonation. If condonation of an elective official’s administrative liability would
perhaps be allowed in this jurisdiction, then the same should have been provided by law
under our governing legal mechanisms. May it be at the time of Pascual or at present, by no
means has it been shown that such a law, whether in a constitutional or statutory provision,
exists. Therefore, inferring from this manifest absence, it cannot be said that the electorate’s
will has been abdicated.
Equally infirm is Pascual’s proposition that the electorate, when re-electing a local
official, are assumed to have done so with knowledge of his life and character, and that they
disregarded or forgave his faults or misconduct, if he had been guilty of any. Suffice it to
state that no such presumption exists in any statute or procedural rule. Besides, it is
contrary to human experience that the electorate would have full knowledge of a public
official’s misdeeds. The Ombudsman correctly points out the reality that most corrupt acts
by public officers are shrouded in secrecy, and concealed from the public. Misconduct
committed by an elective public official is easily covered up, and is almost always
unknown to the electorate when they cast their votes. At a conceptual level,
condonation presupposes that the condoner has actual knowledge of what is to be
condoned. Thus, there could be no condonation of an act that is unknown. X x x.
That being said, this Court simply finds no legal authority to sustain the condonation
doctrine in this jurisdiction. As can be seen from this discourse, it was a doctrine from one
class of US rulings way back in 1959 and thus out of touch from – and now rendered
obsolete by – the current legal regime. In consequence, it is high time for this Court to
abandon the condonation doctrine that originated from Pascual, and affirmed in the cases
following the same, such as Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr.
which were all relied upon by the CA.
It should, however, be clarified that this Court’s abandonment of the condonation

doctrine should be prospective in application for the reason that judicial decisions applying
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or interpreting the laws or the Constitution, until reversed, shall form part of the Philippine
legal system. Unto this Court devolves the sole authority to interpret what the Constitution
means, and all persons are bound to follow its interpretation. X x x
Hence, while the future may ultimately uncover a doctrine’s error, it should be, as a
general rule, recognized as “good law” prior to its abandonment. Consequently, the
people’s reliance thereupon should be respected. X x x
Indeed, the lessons of history teach us that institutions can greatly benefit from
hindsight and rectify its ensuing course. Thus, while it is truly perplexing to think that a
doctrine which is barren of legal anchorage was able to endure in our jurisprudence for a
considerable length of time, this Court, under a new membership, takes up the cudgels and
now abandons the condonation doctrine. (Conchita Carpio Morales v. Court of Appeals
[Sixth Division], GR Nos. 217126-27, November 10, 2015, En Banc [Perlas-Bernabe])
ELECTION LAWS
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 least six months preceding the election. No literacy, property, or other
substantive requirement shall be imposed on the exercise of suffrage. (Section 1,
Article V, 1987 Constitution)
The Right of Suffrage
Kabataan Party-list, et al., v. Commission on Elections, G.R. No. 221318, December 16,
2015, En Banc (Perlas-Bernabe)
Held:
“With these considerations in mind, petitioners’ claim that biometrics validation

imposed under RA 10367, and implemented under COMELEC Resolution Nos. 9721, 9863,
10013, must perforce fail. To reiterate, this requirement is not a “qualification” to the
exercise of the right of suffrage, but a mere aspect of the registration procedure, of which the
State has the right to reasonably regulate. It was institutionalized conformant to the
limitations of the 1987 Constitution and is a mere complement to the Existing Voter’s
Registration Act of 1996. X x x
“Thus, unless it is shown that a registration requirement rises to the level of a literacy,
property or other substantive requirement as contemplated by the Framers of the
Constitution – that is, one which propagates a socio-economic standard which is bereft of
any rational basis to a person’s ability to intelligently cast his vote and to further the public
good – the same cannot be struck down as unconstitutional, as in this case.”
Applying the Strict Scrutiny Test to RA 10367

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“Petitioners assert that biometrics validation gravely violates the Constitution,
considering that, applying the strict scrutiny test, it is not poised with compelling reason for
state regulation and hence, an unreasonable deprivation of the right to suffrage. X x x
“Contrary to petitioners’ assertion, the regulation passes the strict scrutiny test.
“In terms of judicial review of statutes or ordinances, strict scrutiny refers to the
standard for determining the quality and the amount of governmental interest brought to
justify the regulation of fundamental freedoms. Strict scrutiny is used today to test the
validity of laws dealing with the regulation of speech, gender, or race as well as other
fundamental rights as expansion from its earlier applications to equal protection. X x x the
United States Supreme Court has expanded the scope of scrutiny to protect fundamental
rights such as suffrage, judicial access, and interstate travel.
“Applying strict scrutiny, the focus is on the presence of compelling, rather than
substantial, governmental interest and on the absence of less restrictive means for
achieving that interest, and the burden befalls upon the State to prove the same.
“In this case, respondents have shown that the biometrics validation requirement
under RA 10367 advances a compelling state interest. It was precisely designed to facilitate
the conduct of orderly, honest, and credible elections by containing – if not eliminating, the
perennial problem of having flying voters, as well as dead and multiple registrants. X x x the
objective of the law was to cleanse the national voter registry so as to eliminate electoral
fraud and ensure that the results of the elections were truly reflective of the genuine will of
the people. The foregoing consideration is unquestionably a compelling state interest.
“Also, it was shown that the regulation is the least restrictive means for achieving the
above-said interest. Section 6 of Resolution 9721 sets the procedure for biometrics
validation x x x. It is, in effect, a manner of updating one’s registration for those already
registered under RA 8189, or a first-time registration for new registrants. The re-registration
process is amply justified by the fact that the government is adopting a novel technology like
biometrics in order to address the bane of electoral fraud that has enduringly plagued the
electoral exercises in this country. While registrants may be inconvenienced by waiting in
long lines or by not being accommodated on certain days due to heavy volume of work,
these are typical burdens of voting that are remedied by bureaucratic improvements to be
implemented by the COMELEC as an administrative institution. By and large, the
COMELEC has not turned a blind eye to these realities. It has tried to account for the
exigencies x x x.
“That being said, the assailed regulation on the right to suffrage was sufficiently
justified as it was indeed narrowly tailored to achieve the compelling state interest of
establishing a clean, complete, permanent and updated list of voters, and was demonstrably
the least restrictive means in promoting that interest.
Makalintal v. COMELEC
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There is now an exception to the residence qualification of a voter under Section 1,
Article V on Suffrage of the Constitution, and that is, with respect to overseas Filipinos,
permanent residents of a foreign country under R.A. No. 9189 (The Absentee Voters Act of
2003). Under said Act, overseas Filipinos, permanent residents in a foreign country, are
now allowed to register and vote before our embassies and consulates abroad for President,
Vice-President, Senators, and Party-list Representative. There is a clear intent on the part
of the framers of our Constitution to enfranchise as many of our overseas countrymen in
recognition of their tremendous contributions to the national economy in terms of dollar
remittances. It is but fair that their voices should be heard on who should be our national
leaders.
Effect of Filing Certificate of Candidacy
What is the purpose of the law in requiring the filing of certificate of candidacy and in
fixing the time limit therefor?
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)
May a disqualified candidate and whose certificate of candidacy was denied due
course and/or canceled by the COMELEC be validly substituted?
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])
Effect of Disqualification Case
Abandoning the Doctrine of the Rejection of the Second-Placer
Resolving the third issue necessitates revisiting Topacio v. Paredes which is the
jurisprudential spring of the principle that a second-placer cannot be proclaimed as the
winner in an election contest. This doctrine must be re-examined and its soundness once
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again put to the test to address the ever-recurring issue that a second placer who loses to an
ineligible candidate cannot be proclaimed as the winner in the elections.
Xxx
The often-quoted phrase in Topacio v. Paredes is that “the wreath of victory cannot
be transferred from an ineligible candidate to any other candidate when the sole question is
the eligibility of the one receiving a plurality of the legally cast ballots.”
This case is not even the ratio decidendi; it is a mere obiter dictum. The Court was
comparing “the effect of a decision that a candidate is not entitled to the office because of
fraud or irregularities in the elections x x x [with] that produced by declaring a person
ineligible to hold such an office.”
Xxx
On closer scrutiny, the phrase relied upon by a host of decisions does not even have
a legal basis to stand on. It was a mere pronouncement of the Court comparing one process
with another and explaining the effects thereof. As an independent statement, it is even
illogical.
Xxx
What prevents the transfer of the wreath of victory from the ineligible candidate to
another candidate?
When the issue being decided upon by the Court is the eligibility of the one receiving
a plurality of the legally cast ballots and ineligibility is thereafter established, what stops the
Court from adjudging another eligible candidate who received the next highest number of
votes as the winner and bestowing upon him that “wreath?”
An ineligible candidate who receives the highest number of votes is a wrongful

winner. By express legal mandate, he could not even have been a candidate in the first
place, but by virtue of the lack of material time or any other intervening circumstances, his
ineligibility might not have been passed upon prior to election date. Consequently, he may
have had the opportunity to hold himself out to the electorate as a legitimate and duly
qualified candidate. However, notwithstanding the outcome of the elections, his ineligibility
as a candidate remains unchanged. Ineligibility does not only pertain to his qualifications as
a candidate but necessarily affects his right to hold public office. The number of ballots cast
in his favor cannot cure the defect of failure to qualify with the substantive legal requirements
of eligibility to run for public office. (Casan Macode Maquiling v. COMELEC, et al., G.R.
No. 195649, April 16, 2013, En Banc [Sereno, CJ])
With Arnado’s disqualification, Maquiling then becomes the winner in the election as
he obtained the highest number of votes from among the qualified candidates. We have
ruled in the recent cases of Aratea v. COMELEC and Jalosjos v. COMELEC that a void COC
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cannot produce any legal effect. Thus, the votes cast in favor of the ineligible candidate are
not considered at all in determining the winner of an election.
Even when the votes for the ineligible candidate are disregarded, the will of the
electorate is still respected, and even more so. The votes cast in favor of an ineligible
candidate do not constitute the sole and total expression of the sovereign voice. The votes
cast in favor of eligible and legitimate candidates form part of that voice and must also be
respected.
As in any contest, elections are governed by rules that determine the qualifications
and disqualifications of those who are allowed to participate as players. When there are
participants who turn out to be ineligible, their victory is voided and the laurel is awarded to
the next in rank who does not possess any of the disqualifications nor lacks any of the
qualifications set in the rules to be eligible as candidates.
Xxx
The electorate’s awareness of the candidate’s disqualifications is not a prerequisite

for the disqualification to attach to the candidate. The very existence of a disqualifying
circumstance makes the candidate ineligible. Knowledge by the electorate of a candidate’s
disqualification is not necessary before a qualified candidate who placed second to a
disqualified one can be proclaimed as the winner. The second-placer in the vote count is
actually the first-placer among the qualified candidates.
That the disqualified candidate has already been proclaimed and has assumed office
is of no moment. The subsequent disqualifications based on a substantive ground that
existed prior to the filing of the certificate of candidacy voids not only the COC but the
proclamation.
Xxx
The disqualifying circumstance surrounding Arnado’s candidacy involves his

citizenship. It does not involve the commission of election offenses as provided for in the
first sentence of Section 68 of the Omnibus Election Code, the effect of which is to disqualify
the individual from continuing as a candidate, or if has already been elected, from holding
the office.
The disqualifying circumstance affecting Arnado is his citizenship. X x x Arnado

was both a Filipino and an American citizen when he filed his certificate of candidacy. He
was a dual citizen disqualified to run for public office based on Section 40(d) of the Local
Government Code.
With Arnado being barred from even becoming a candidate, his certificate of
candidacy is thus rendered void from the beginning. It could not have produced any other
legal effect x x x.
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To hold that such proclamation is valid is to negate the prohibitory character of the
disqualification which Arnado possessed even prior to the filing of the certificate of candidacy.
The affirmation of Arnado’s disqualification, although made long after the elections, reaches
back to the filing of the certificate of candidacy. Arnado is declared to be not a candidate at
all in the May 2010 elections.
Arnado being not a candidate, the votes cast in his favor should not have been
counted. This leaves Maquiling as the qualified candidate who obtained the highest number
of votes therefore, the rule on succession under the Local Government Code will not apply.
(Casan Macode Maquiling v. COMELEC, et al., G.R. No. 195649, April 16, 2013, En
Banc [Sereno, CJ])
THE LAW OF PUBLIC CORPORATIONS
Local Governments are the Territorial and Political Subdivisions of the Republic of the
Philippines
The territorial and political subdivisions of the Republic of the Philippines are
the provinces, cities, municipalities, and barangays. There shall be autonomous
regions in Muslim Mindanao and the Cordilleras as hereinafter provided. (Section 1,
Article X, 1987 Constitution)
Autonomous Regions
There shall be created autonomous regions in Muslim Mindanao and in the

Cordilleras consisting 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 this Constitution
and the national sovereignty as well as territorial integrity of the Republic of the
Philippines. (Section 15, Article X, 1987 Constitution)
The Congress shall enact an organic act for each autonomous region with the
assistance and participation of the regional consultative commission composed of
representatives appointed by the President from a list of nominees from multisectoral
bodies. The organic act shall define the basic structure of government for the region
consisting of the executive department and legislative assembly, both of which shall
be elective and representative of the constituent political units. The organic acts
shall likewise provide for special courts with personal, family and property law
jurisdiction consistent with the provisions of this Constitution and national laws.
The creation of the autonomous region shall be effective when approved by

majority of the votes cast by the constituent units in a plebiscite called for the
purpose, provided that only provinces, cities, and geographical areas voting favorably
in such plebiscite shall be included in the autonomous region. (Sec. 18, Art. X, 1987
Constitution)
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The Province of North Cotabato v. The Government of the Republic of the Philippines
Peace Panel, G.R. No. 183591, 568 SCRA 402, October 14, 2008, En Banc (Carpio-
Morales)
Creation of Local Governments
No province, city, municipality, or barangay may be created, divided, merged,

abolished, or its boundary substantially altered, except in accordance with the criteria
established in the local government code and subject to approval by a majority of the
votes cast in a plebiscite in the political units directly affected. (Section 10, Article X,
1987 Constitution)
Rodolfo G. Navarro, et al. v. Executive Secretary Eduardo Ermita, et al., G.R. No.
180050, 12 May 2010, En Banc (Peralta)
Section 7, Chapter 2 paragraph (c) of the Local Government Code (LGC), provides
that the land area must be contiguous, unless it comprises two (2) or more islands, or is
separated by a local government unit independent of the others; properly identified by metes
and bounds with technical descriptions; and sufficient to provide for such basic services and
facilities to meet the requirements of its populace.
Therefore, there are two requirements for land area: (1) the land area must be
contiguous; and (2) the land area must be sufficient to provide for such basic services and
facilities to meet the requirements of its populace. A sufficient land area in the creation of a
province is at least 2,000 square kilometers, as provided by Section 461 of LGC.
Hence x x x the requirement of a contiguous territory and the requirement of a land

area of at least 2,000 square kilometers are distinct and separate requirements for land area
under paragraph (a) (i) of Section 461 and Section 7 (c) of LGC.
However, paragraph (b) of Section 461 provides two instances of exemption from the
requirement of territorial contiguity, to wit, “the territory need not be contiguous if it comprises
two (2) or more islands, or is separated by a chartered city or cities which do not contribute
to the income of the province.”
The exemption above pertains only to the requirement of territorial contiguity. It

clearly states that the requirement of territorial contiguity may be dispensed with in the case
of a province comprising two or more islands, or is separated by a chartered city or cities
which do not contribute to the income of the province.
Nowhere in paragraph (b) is it expressly stated or may it be implied that when a

province is composed of two or more islands, or when the territory of a province is separated
by a chartered city or cities, such province need not comply with the land area requirement
of at least 2,000 square kilometers or the requirement in paragraph (a) (i) of Section 461 of
LGC.
Where the law is free from ambiguity, the court may not introduce exceptions or
conditions where none is provided from considerations of convenience, public welfare, or for
any laudable purpose; neither may it engraft into the law qualifications not contemplated, nor
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construe its provisions by taking into account questions of expediency, good faith, practical
utility and other similar reasons so as to relax non-compliance therewith. Where the law
speaks in clear and categorical language, there is no room for interpretation, but only for
application.
Powers of Local Governments
Corporate Powers of Local Governments
To be considered as a valid police power, an ordinance must pass a two-pronged

test: the formal (i.e., whether the ordinance is enacted within the corporate powers of the
local government unit, and whether it is passed in accordance with the procedure prescribed
by law); and the substantive (i.e., involving inherent merit, like the conformity of the
ordinance with the limitations under the Constitution and the statutes, as well as with the
requirements of fairness and reason, and its consistency with public policy).
The formalities in enacting an ordinance are laid down in Section 53 and Section 54
of The Local Government Code. These provisions require the ordinance to be passed by
the majority of the members of the sanggunian concerned, and presented to the mayor for
approval. X x x.
The corporate powers of the local government unit confer the basic authority to enact
legislation that may interfere with personal liberty, property, lawful businesses and
occupations in order to promote the general welfare. Such legislative powers spring from
the delegation thereof by Congress through either the Local Government Code or a special
law. The General Welfare Clause in Section 16 of the Local Government Code embodies
the legislative grant that enables the local government unit to effectively accomplish and
carry out the declared objects of its creation, and to promote and maintain local autonomy.
X x x.
Section 16 comprehends two branches of delegated powers, namely: the general

legislative power and the police power proper. General legislative power refers to the power
delegated by Congress to the local legislative body, or the Sangguniang Panlungsod in the
case of Davao City, to enable the local legislative body to enact ordnances and make
regulations. This power is limited in that the enacted ordinances must not be repugnant to
law, and the power must be exercised to effectuate and discharge the powers and duties
legally conferred to the local legislative body. The police power, on the other hand,
authorizes the local government unit to enact ordinances necessary and proper for the
health and safety, prosperity, morals, peace, good order, comfort, and convenience of the
local government unit and its constituents, and for the protection of their property.
Section 458 of the Local Government Code explicitly vests the local government unit
with the authority to enact ordinances aimed at promoting the general welfare x x x.
In terms of the right of the citizens to health and to a balanced and healthful ecology,
the local government unit takes its cue from Section 15 and Section 16, Article II of the 1987
Constitution. Following the provisions of the Local Government Code and the Constitution,
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the acts of the local government unit designed to ensure the health and lives of its
constituents and to promote a balanced and healthful ecology are well within the corporate
powers vested in the local government unit. X x x. (Wilfredo Mosqueda, et al. v. Pilipino
Banana Growers & Exporters Association, et al., G.R. No. 189185, August 16, 2016, En
Banc [Bersamin])
Requisites of a Valid Ordinance
A valid ordinance must not only be enacted within the corporate powers of the local
government and passed according to the procedure prescribed by law. In order to declare it
as a valid piece of local legislation, it must also comply with the following substantive
requirements, namely: (1) it must not contravene the Constitution or any statute; (2) it must
be fair, not oppressive; (3) it must not be partial or discriminatory; (4) it must not prohibit but
may regulate trade; (5) it must be general and consistent with public policy; and (6) it must
not be unreasonable. (Wilfredo Mosqueda, et al. v. Pilipino Banana Growers &
Exporters Association, et al., G.R. No. 189185, August 16, 2016, En Banc [Bersamin])
Ordinance No. 0309-07 of Davao City Prohibiting Aerial Spraying in That City Declared
Ultra Vires
Wilfredo Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, et al.,
G.R. No. 189185, August 16, 2016, En Banc (Bersamin)
Held:
The function of pesticides control, regulation and development is within the

jurisdiction of the FPA (Fertilizer and Pesticide Authority) under Presidential Decree
No. 1144. The FPA was established in recognition of the need for a technically
oriented government entity that will protect the public from the risks inherent in the
use of pesticides. To perform its mandate, it was given under Section 6 of
Presidential Decree No. 1144 the following powers and functions with respect to
pesticides and other agricultural chemicals x x x.
Evidently, the FPA was responsible for ensuring the compatibility between the
usage and the application of pesticides in agricultural activities and the demands for
human health and environmental safety. This responsibility includes not only the
identification of safe and unsafe pesticides, but also the prescription of the safe
modes of application in keeping with the standard of good agricultural practices.
On the other hand, the enumerated devolved functions to the local

government units do not include the regulation and control of pesticides and other
agricultural chemicals. X x x
In enacting Ordinance No. 0309-07 without the inherent and explicit authority
to do so, the City of Davao performed an ultra vires act. As a local government unit,
the City of Davao could act only as an agent of Congress, and its every act should
always conform to and reflect the will of its principal x x x.
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For sure, every local government unit only derives its legislative authority from
Congress. In no instance can the local government unit rise above its source of
authority. As such, its ordinance cannot run against or contravene existing laws,
precisely because its authority is only by virtue of the valid delegation from Congress.
Xxx
Moreover, Ordinance No. 0309-07 proposes to prohibit an activity already

covered by the jurisdiction of the FPA, which has issued its own regulations under its
Memorandum Circular x x x.
Xxx
Devoid of the specific delegation to its legislative body, the City of Davao
exceeded its delegated authority to enact Ordinance No. 0309-07. Hence,
Ordinance No. 0309-07 must be struck down also for being an ultra vires act on the
part of the Sangguning Bayan of Davao City.
We must emphasize that our ruling herein does not seek to deprive the LGUs
their right to regulate activities within their jurisdiction. They are empowered under
Section 16 of the Local Government Code to promote the general welfare of the
people through regulatory, not prohibitive, ordinances that conform with the policy
directions of the National Government. Ordinance No. 0309-07 failed to pass this
test as it contravenes the specific regulatory policy on aerial spraying in banana
plantations on a nationwide scale of the National Government, through the FPA.
Requisites for a Proper Exercise by Local Governments of Police Power
In the State’s exercise of police power, the property rights of individuals may be
subjected to restraints and burdens in order to fulfill the objectives of the Government. A
local government unit is considered to have properly exercised its police power only if it
satisfies the following requisites, to wit: (1) the interests of the public generally, as
distinguished from those of a particular class, require the interference of the State; and (2)
the means employed are reasonably necessary for the attainment of the object sought to be
accomplished and not unduly oppressive. The first requirement refers to the Equal
Protection Clause of the Constitution, the second, to the Due Process Clause of the
Constitution.
Substantive due process requires that a valid ordinance must have a sufficient
justification for the Government’s action. This means that in exercising police power the
local government unit must not arbitrarily, whimsically or despotically enact the ordinance
regardless of its salutary purpose. So long as the ordinance realistically serves a legitimate
public purpose, and it employs means that are reasonably necessary to achieve that
purpose without unduly oppressing the individuals regulated, the ordnances must survive a
due process challenge. (Wilfredo Mosqueda, et al. v. Pilipino Banana Growers & Exporters
Association, et al., G.R. No. 189185, August 16, 2016, En Banc [Bersamin])
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Vacancies and Succession in the Local Governments
Farinas v. Barba
Limitation on Term of Office of Local Elective Officials
The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for
more than three consecutive terms. Voluntary renunciation of 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 was elected. (Section 8, Article X, 1987 Constitution)
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])
The two conditions for the application of the disqualification provision are: (1) that the
local official concerned has been elected three consecutive times for the same position; and
(2) that he has fully served three consecutive terms. Absent one or both of these two
conditions, the disqualification may not yet apply. (Borja, Jr. v. COMELEC and Capco, Jr.,
G.R. No. 133495, Sept. 3, 1998, 295 SCRA 157, En Banc [Mendoza])
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?
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])
Socrates v. COMELEC (November 12, 2002)
What is prohibited by the Constitution is after serving three (3) consecutive terms to
the same position a local elective official shall run for immediate reelection. Any subsequent
reelection, like a recall election, is no longer covered by the provision, for as long as it is not
an immediate reelection after serving the three (3) consecutive terms.
Mendoza v. COMELEC (December 17, 2002)
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Service of the recall term, since it is less than three (3) years, is not to be considered
as one full term for purposes of applying the disqualification under Section 8, Article X of the
Constitution.
Is the preventive suspension of an elected local government official an interruption of

his term of office for purposes of the three-term limit rule?
The “interruption” of a term exempting an elective official from the three-term limit
rule is one that involves no less than the involuntary loss of title to office. The elective official
must have involuntarily left his office for a length of time, however short, for an effective
interruption to occur. Thus, based on this standard, loss of office by operation of law, being
involuntary, is an effective interruption of service within a term. On the other hand,
temporary inability or disqualification to exercise the functions of an elective post, even if
involuntary, should not be considered an effective interruption of a term because it does not
involve the loss of title to office or at least an effective break from holding office; the office
holder, while retaining title, is simply barred from exercising the functions of his office for a
reason provided by law.
An interruption occurs when the term is broken because the office holder lost the
right to hold on to his office, and cannot be equated with the failure to render service. The
latter occurs during an office holder’s term when he retains title to the office but cannot
exercise his functions for reasons established by law. Of course, the term “failure to serve”
cannot be used once the right to office is lost; without the right to hold office or serve, then
no service can be rendered so that none is really lost.
To put it differently, Sec. 8, Art. X fixes an elective official’s term of office and limits
his stay in office to three consecutive terms as an inflexible rule that is stressed no less, by
citing involuntary renunciation as an example of a circumvention. The provision should be
read in the context of interruption of term, not in the context of interrupting the full continuity
of the exercise of the powers of the elective position. The “voluntary renunciation” it speaks
of refers only to the elective official’s voluntary relinquishment of office and loss of title to his
office. It does not speak of the temporary “cessation of the exercise of power or authority”
that may occur for various reasons, with preventive suspension being only one of them.
In all cases of preventive suspension, the suspended official is barred from

performing the functions of his office and does not receive salary in the meanwhile, but does
not vacate and lose title to his office; loss of office is a consequence that only results upon
an eventual finding of guilt or liability. (Aldovino, Jr. v. COMELEC, G.R. No. 184836, Dec.
23, 2009, En Banc [Brion])
Recall
Recall is a mode of removing a local elective official from his post even before the
end of his term on the ground of loss of confidence.
There is only one ground for Recall: Loss of Confidence
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Loss of confidence as a ground for recall is a political question and therefore, not
subject to judicial review. (Evardone v. COMELEC) After all, as explained by the Court in
that case, the initiation of the recall process is not the recall itself. There will still be
conducted a special recall election and, in that special recall election, it will be known
whether the people still have confidence in the local elective official sought to be recalled or
whether they no longer have confidence in him.
Way of Initiating Recall
Under current and existing laws, there is only one way of initiating recall and that is,
through a petition to be signed by the registered voters of the local government unit
concerned because of the enactment by Congress of R.A. No. 9244 (Abolishing the
Preparatory Recall Assembly as a Mode of Initiating Recall) on February 18, 2004.
A petition signed by just one person is in violation of the minimum statutory

requirement of initiating recall. (Angubung v. COMELEC)
PUBLIC INTERNATIONAL LAW
Jus Cogens Norms and Erga Omnes Obligations
Just cogens literally means “compelling law.” As defined, it means a peremptory

(mandatory) norm of general international law which is recognized and accepted by the
international community of States as a norm that does not permit of any derogation and
which can be replaced or modified only by a subsequent norm of the same character.
Under the Vienna Convention on the Law of Treaties, a treaty that violates a jus
cogens norm will have to be invalidated.
Erga omnes literally means “in relation to the whole.” An erga omnes refers to an
obligation of a State towards the international community of States as a whole.
Between an erga omnes obligation and an obligation of a State towards another

State pursuant to a treaty, an erga omnes is superior.
However, in Vinuya, et. al. v. The Honorable Executive Secretary Alberto G.

Romulo, et. al., (G.R. No. 162230, April 28. 2010, En Banc [Del Castillo]), the SC clarified
that there is yet no consensus on the proper criteria for identifying peremptory norms. It held:
Even the invocation of jus cogens norms and erga omnes obligations will not
alter this analysis. Even if we sidestep the question of whether jus cogens norms
existed in 1951, petitioners have not deigned to show that the crimes committed by
the Japanese army violated jus cogens prohibitions at the time the Treaty of Peace
was signed, or that the duty to prosecute perpetrators of international crimes is an
erga omnes obligation or has attained the status of jus cogens.
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The term erga omnes (Latin: in relation to everyone) in international law has
been used as a legal term describing obligations owed by States towards the
community of states as a whole. The concept was recognized by the ICJ in
Barcelona Traction x x x.
Such obligations derive, for example, in contemporary international law, from

the outlawing of acts of aggression, and of genocide, as also from the principles and
rules concerning the basic rights of the human person, including protection from
slavery and racial discrimination. Some of the corresponding rights of protection
have entered into the body of general international law … others are conferred by
international instruments of a universal or quasi-universal character.
The Latin phrase, ‘erga omnes,’ has since become one of the rallying cries of
those sharing a belief in the emergence of a value-based international public order.
However, as is so often the case, the reality is neither so clear nor so bright.
Whatever the relevance of obligations erga omnes as a legal concept, its full
potential remains to be realized in practice.
The term is closely connected with the international law concept of jus cogens.
In international law, the term “jus cogens” (literally, “compelling law”) refers to norms
that command peremptory authority, superseding conflicting treaties and custom.
Jus cogens norms are considered peremptory in the sense that they are mandatory,
do not admit derogation, and can be modified only by general international norms of
equivalent authority.
Early strains of the jus cogens doctrine have existed since the 1700s, but
peremptory norms began to attract greater scholarly attention with the publication of
Alfred von Verdross’s influential 1937 article, Forbidden Treaties in International Law.
The recognition of jus cogens gained even more force in the 1050s and 1960s with
the ILC’s preparation of the Vienna Convention on the Law of Treaties (VCLT).
Though there was a consensus that certain international norms had attained the
status of jus cogens, the ILC was unable to reach a consensus on the proper criteria
for identifying peremptory norms.
` After an extended debate over these and other theories of jus cogens, the ILC
concluded ruefully in 1963 that “there is not as yet any generally accepted criterion
by which to identify a general rule of international law as having the character of jus
cogens.” In a commentary accompanying the draft convention, the ILC indicated that
“the prudent course seems to be to x x x leave the full content of this rule to be
worked out in State practice and in the jurisprudence of international tribunals.” Thus,
while the existence of jus cogens in international law is undisputed, no consensus
exists on its substance, beyond a tiny core of principles and rules.
The Doctrine of Incorporation
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The Province of North Cotabato v. The Government of the Republic of the Philippines
Peace Panel, G.R. No. 183591, 568 SCRA 402, October 14, 2008, En Banc (Carpio-
Morales)
The right to self-determination of peoples has gone beyond mere treaty or convention;
in fact, it has now been elevated into the status of a generally accepted of international law.
However, this right to self-determination of peoples may be understood in two senses, i.e.,
the right to internal self-determination (a people’s pursuit of its own political, economic, social
and cultural development within the framework of an existing State), and the right to external
self-determination (which consists of the assertion of a right to unilateral secession). But, as
normally understood in international law, this right to self-determination merely refers to the
right to internal self-determination. The right to external self-determination, may be invoked
only in extreme cases, i.e., in case of people under colonial rule, or in case of people under
foreign domination or exploitation outside of a colonial context.
The State
The Concept of an Association or Associated State
An association is formed when two states of unequal power voluntarily establish

durable links. In the basic model, one state, the associate, delegates certain responsibilities
to the other, the principal, while maintaining its international status as a state. Free
associations represent a middle ground between integration and independence. Examples
of states which maintain an associated state relationship with the United States are the
newly-formed states of Micronesia and the Marshall Islands in the Pacific.
In US constitutional and international practice, free association is understood as an

international association between sovereigns. The Compact of Free Association is a treaty
which is subordinate to the associated nation’s national constitution, and each party may
terminate the association consistent with the right of independence. It has been said that,
with the admission of the US-associated states to the UN in 1990, the UN recognized that
the American model of free association is actually based on an underlying status of
independence.
In international practice, the “associated state” arrangement has usually been used
as a transitional device of former colonies on their way to full independence. Examples of
states that have passed through the status of associated states as a transitional phase are
Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have
since become independent states. (The Province of North Cotabato v. The Government
of the Republic of the Philippines Peace Panel, G.R. No. 183591, 568 SCRA 402,
October 14, 2008, En Banc [Carpio-Morales])
The Concept of “Association” is not recognized under the 1987 Philippine

Constitution
The 1987 Constitution provides that no province, city, or municipality, not even the
Autonomous Region for Muslim Mindanao (ARMM) is recognized under our laws as having
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an “associative” relationship with the national government. Indeed, the concept implies
powers that go beyond anything ever granted by the Constitution to any local or regional
government. It also implies the recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state in this jurisdiction other than the
Philippine State, much less does it provide for a transitory status that aims to prepare any
part of Philippine territory for independence. (The Province of North Cotabato v. The
Government of the Republic of the Philippines Peace Panel, G.R. No. 183591, 568
SCRA 402, October 14, 2008, En Banc [Carpio-Morales])
Sovereignty as an Element of a State
Is sovereignty really absolute and all-encompassing? If not, what are its restrictions
and limitations?
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])
Territory of States
Professor Merlin M. Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R. No. 187167,
655 SCRA 476, August 16, 2011, En Banc (Carpio)
Diplomatic and Consular Immunities and Privileges
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Liang v. People, 323 SCRA 692 (2000); 355 SCRA 125 (2001) (Focus on Justice Puno’s
Concurring Opinion)
Extradition and Asylum
Nationality and Statelessness
Refugees
A refugee is a person who, owing to a well-founded fear of being persecuted for

reasons of race, religion, nationality, membership of a particular social group or political
opinion, is outside the country of his nationality and is unable or owing to such fear, is
unwilling to avail himself of the protection of that country; or who, not having a nationality
and being outside the country of his former habitual residence, is unable or, or owing to such
fear, is unwilling to return to it. (Convention Relating to the Status of Refugees, Art. 1 A[2])
(Magallona, Fundamentals of Public International Law, 2005 Ed., p. 287)
The Non-Refoulement Principle
The right of a refugee not to be expelled or returned “in any manner whatsoever to
the frontiers of territories where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social group or political opinion.” The
prohibition of such expulsion or return becomes an obligation of States parties to the
Convention Relating to the Status of Refugees. (Magallona, Fundamentals of Public
International Law, 2005 Ed., p. 289)
The Law on Treaties
Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., G.R. No.
212426, January 12, 2016, En Banc (Sereno, CJ)
The Doctrine of State Responsibility to Aliens
An important premise for this doctrine to be validly invoked is that a State is under no
legal obligation in international law to admit an alien in its territory. However, the moment it
admits an alien, it is duty-bound to provide protection to that alien so that once the State is
remiss in the performance of this duty and the alien dies, or suffers injury or loss, this could
lead to liability on the part of the State.
Requisites for this doctrine to apply:
1. An act or omission in violation of international law;

2. Attributable to the State;
3. Causing damage or injury to a third State directly, or indirectly, to a national of the
third State.
Conditions for the enforcement of claims under this doctrine:

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1. The nationality of the claim;
2. Exhaustion of local remedies;
3. No waiver;
4. No unreasonable delay in filing the claim; and
5. No improper conduct on the part of the injured alien.
International Humanitarian Law (IHL)
International humanitarian law is the branch of public international law which

governs armed conflicts to the end that the use of violence is limited and that human
suffering is mitigated or reduced by regulating or limiting the means of military operations
and by protecting persons who do not or no longer participate in the hostilities. (Magallona,
Fundamentals of Public International Law, 2005 ed., p. 291)
International Humanitarian Law (IHL) encompasses both humanitarian principles and

international treaties that seek to save lives and alleviate suffering of combatants and
noncombatants during armed conflict. Its principal legal documents are the Geneva
Conventions of 1949, four treaties signed by almost every nation in the world. The
Conventions define fundamental rights for combatants removed from the fighting due to
injury, illness, or capture, and for civilians. The 1977 Additional Protocols, which
supplement the Geneva Conventions, further expand those rights.
These are:
(1) Geneva Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field of August 12, 1949 (First Geneva Convention);
(2) Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea of August 12, 1949 (Second
Geneva Convention);
(3) Geneva Convention Relative to the Treatment of Prisoners of War of August 12,
1949 (Third Geneva convention);
(4) Geneva Convention Relative to the Protection of Civilian Persons in Time of
War of August 12, 1949 (Fourth Geneva Convention);
(5) Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating
to the Protection of Victims of International Armed Conflicts (Protocol I) of 8
June 1977; and
(6) Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating
to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of
8 June 1977.
IHL is not concerned with the lawfulness or unlawfulness of armed conflict. In

violation of the prohibition against the threat or use of force under international law, a state
may engage in armed attack against another state, resulting in armed conflict between them.
The application of IHL in their conflict pertains solely to the fact of armed conflict as the use
of force remains unlawful. Armed conflict, in which IHL properly applies, may arise from a
legitimate use of force as when a multinational force of UN members engages in armed
attack against a State by authority of the UN Security Council as an enforcement measure
under Article 42 of the UN Charter. In either case, there will be victims of the conflict who
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must come under the protection of IHL, and there may be methods of warfare which may
come under the prohibition of IHL. Hence, the issue of lawfulness or unlawfulness of the
armed conflict is of no legal importance from the standpoint of IHL. (Magallona,
Fundamentals of Public International Law, 2005 ed., p. 293)
The Principle of Distinction
An important principle to be observed under IHL is the Principle of Distinction.

Under this principle, persons directly engaged in armed conflict must, at all times, distinguish
between civilians and combatants; between civilian objects and military objectives, so that
only combatants and military objectives may be subject of attack.
Categories of Armed Conflicts
1. International Armed Conflicts

2. Internal or Non-international Armed Conflicts
3. War of National Liberation
War of National Liberation
An armed conflict may be of such nature in which “peoples are fighting against
colonial domination and alien occupation and against racist regimes in the exercise of their
right of self-determination.”
This conflict involving the right of peoples to self-determination is an international

armed conflict. It is so classified under Article I, paragraphs 3 and 4 of Protocol I. Under
these provisions, this conflict which may be referred to as “war of national liberation,” is
included in the classification set out in Article 2 common to the four Geneva Conventions of
1949 x x x. (Magallona, Fundamentals of Public International Law, 2005 ed., p. 307)
The International Criminal Court (ICC)
The Rome Statute
The Rome Statute established the International Criminal Court which “shall have the
power to exercise its jurisdiction over persons for the most serious crimes of international
concern x x x and shall be complementary to the national criminal jurisdictions.” (Article I,
Rome Statute) Its jurisdiction covers the crime of genocide, crimes against humanity, war
crimes and the crime of aggression as defined in the Statute (Article 5, Rome Statute). The
Statute was opened for signature by all States in Rome on July 17, 1988 and had remained
open for signature until December 31, 2000 at the United Nations Headquarters in New York.
The Philippines signed the Statute on December 28, 2000 x x x. Its provisions, however,
require that it be subject to ratification, acceptance or approval of the signatory states (Article
25, Rome Statute). (Pimentel, Jr. v. Office of the Executive Secretary, 462 SCRA 622,
July 6, 2005, En Banc [Puno])
What offenses fall under the jurisdiction of the International Criminal Court (ICC)?
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The International Criminal Court (ICC) shall have the power to exercise jurisdiction
over persons for the most serious crimes of international concern. Its jurisdiction covers the
crime of genocide, crimes against humanity, war crimes and the crime of aggression as
defined in the Statute (Article 5, Rome Statute). (Pimentel, Jr. v. Office of the Executive
Secretary, 462 SCRA 622, July 6, 2005, En Banc [Puno])
What is the Principle of Complementarity in the Statute of the International Criminal

Court (ICC)?
The tenth preambular paragraph of the ICC Statute emphasizes that “the
International Criminal Court x x x shall be complementary to national criminal jurisdiction.”
This principle becomes operative in Article 1 of the Statute. This, however, has to be
correlated with the sixth preambular paragraph of the Statute which declares that “it is the
duty of every State to exercise its criminal jurisdiction over those responsible for international
crimes.” The principle of complementarity produces a correlation of the ICC jurisdiction with
that of every state over international crimes under the ICC Statute.
The principle of complementarity gives primacy to national jurisdiction x x x.
The principle of ne bis in idem in Article 20, paragraph 3, of ICC Statute strengthens
complementarity, thus: Unless the proceedings in the national court is for the purpose of
shielding the person concerned from liability, or not conducted independently or impartially,
“no person who has been tried by another court for conduct … [constituting crimes within its
jurisdiction] shall be tried by the Court with respect to the same conduct x x x.” (Magallona,
Fundamentals of Public International Law [2005 ed.])
The Law of the Sea
The international law of the sea is generally defined as “a body of treaty rules and
customary norms governing the uses of the sea, the exploitation of its resources, and the
exercise of jurisdiction over maritime regimes. It is a branch of public international law,
regulating the relations of states with respect to the uses of the oceans.” (Merlin M.
Magallona, A Primer on the Law of the Sea, 1997, p. 1) The UNCLOS is a multilateral treaty
which was opened for signature on December 10, 1982 at Montego Bay, Jamaica. It was
ratified by the Philippines in 1984 but came into force on November 16, 1994 upon the
submission of the 60th ratification.
The UNCLOS is a product of international negotiation that seeks to balance State

sovereignty (mare clausum) and the principle of freedom of the high seas (mare liberum).
The freedom to use the world’s marine waters is one of the oldest customary principle of
international law (Anne Bardin, “Coastal State’s Jurisdiction Over Foreign Vessels” 14 Pace
Int’l. Rev. 27, 28 [2002]). The UNCLOS gives to the coastal State sovereign rights in varying
degrees over the different zones of the sea which are: 1) internal waters, 2) territorial sea, 3)
contiguous zone, 4) exclusive economic zone, and 5) the high seas. It also gives coastal
States more or less jurisdiction over foreign vessels depending on where the vessel is
located (Id. At 29).
Insofar as the internal waters and territorial sea is concerned, the Coastal States
exercises sovereignty, subject to the UNCLOS and other rules of international law. Such
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sovereignty extends to the air apace over the territorial sea as well as to its bed and subsoil
(Art. 2, UNCLOS). (Most Rev. Pedro D. Arigo, et al. v. Scott H. Swift, et al., G.R. No.
206510, September 16, 2014, En Banc [Villarama, Jr.])
International Environmental Law
Background Information
The Convention on Biological Diversity (CBD)
On December 29, 1993, the Convention on Biological Diversity (CBD) came into
force. This multilateral treaty recognized that “modern biotechnology has great potential for
human well-being if developed and used with adequate safety measures for the environment
and human health.” Its main objectives, as spelled out in Article I, are the “conservation of
biological diversity, the sustainable use of its components and the fair and equitable sharing
of the benefits arising out of the utilization of genetic resources.” (International Service for
the Acquisition of Agri-biotech Applications, Inc. v. Greenpeace Southeast Asia
(Philippines), et al., GR No. 209271, December 8, 2015, En Banc [Villarama])
The Cartagena Protocol
In January 2000, an agreement was reached on the Cartagena Protocol on Biosafety

(Cartagena Protocol), a supplemental to the CBD. The Cartagena Protocol aims “to
contribute to ensuring an adequate level of the safe transfer, handling and use of living
modified organisms resulting from modern biotechnology that may have adverse effects on
the conservation and sustainable use of biological diversity, taking into account risks to
human health, and specifically focusing on transboundary movements.”
On May 24, 2000, the Philippines signed the Cartagena Protocol, which came into
force on September 11, 2003. On August 14, 2006, the Philippine Senate adopted Senate
Resolution No. 92 or the “Resolution Concurring in the Ratification of the Cartagena Protocol
on Biosafety (CPB) to the UN Convention on Biological Diversity.” (International Service
for the Acquisition of Agri-biotech Applications, Inc. v. Greenpeace Southeast Asia
(Philippines), et al., GR No. 209271, December 8, 2015, En Banc [Villarama])
Biotechnology
Biotechnology is a multi-disciplinary field which may be defined as “any technique

that uses living organisms or substances from those organisms to make or modify a product,
to improve plants or animals, or to develop microorganisms for specific uses.” Its many
applications include agricultural production, livestock, industrial chemicals and
pharmaceuticals. (International Service for the Acquisition of Agri-biotech
Applications, Inc. v. Greenpeace Southeast Asia (Philippines), et al., GR No. 209271,
December 8, 2015, En Banc [Villarama])
The precautionary principle originated in Germany in the 1960s, expressing the

normative idea that governments are obligated to “foresee and forestall” harm to the
th
Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626
environment. In the following decades, the precautionary principle has served as the
normative guideline for policymaking by many national governments. The Rio Declaration
on Environment and Development, the outcome of the 1992 United Nations Conference on
Environment and Development held in Rio de Janeiro, defines the rights of the people to be
involved in the development of their economies, and the responsibilities of human beings to
safeguard the common environment. It states that the long term economic progress is only
ensured if it s linked with the protection of the environment. For the first time, the
precautionary approach was codified under Principle 15, which reads:
In order to protect the environment, the precautionary approach shall be widely

applied by States according to their capabilities. Where there are threats of serious
or irreversible damage, lack of full scientific certainty shall not be used as a reason
for postponing cost-effective measures to prevent environmental degradation.
Principle 15 codified for the first time at the global level the precautionary approach,
which indicates that lack of scientific certainty is no reason to postpone action to avoid
potentially serious or irreversible harm to the environment. It has been incorporated in
various international legal instruments. The Cartagena Protocol on Biosafety to the
Convention on Biological Diversity, finalized and adopted in Montreal on January 29, 2000,
establishes an international regime primarily aimed at regulating trade in GMOs intended for
release into the environment, in accordance with Principle 15 of the Rio Declaration on
Environment and Development.
The Rules (of Procedure for Environmental Cases) incorporated the principle in Part
V, Rule 20.
-ooOoo-
th
Tel. No. (02) 241-4830 / Cel. Nos. (0949) 343-6092; (0922) 898-8626

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NO.

Notes and Cases

The Doctrine of Constitutional Supremacy

Self-executing and Non-self-executing Provisions of the Constitution

Provisions of the Constitution are presumed to be Self-executing

Unless it is expressly provided that a legislative act is necessary to enforce a

Ways of Proposing Amendments or Revision

Second: through a Constitutional Convention. A constitutional convention is a body

Third: through People’s Initiative.

Any proposed amendment or revision of the Constitution will have to be submitted to

The Effect of Declaration of Unconstitutionality of a Legislative or Executive Act

The Operative Fact Doctrine

The Doctrine of Operative Fact Extends as well to a Void or Unconstitutional

In Commissioner of Internal Revenue v. San Roque Power Corporation (G.R. No.

THE NATIONAL TERRITORY

RA 9522 is not unconstitutional. It is a statutory tool to demarcate the country’s

Petitioners’ assertion of loss of “about 15,000 square nautical miles of territorial

THE DOCTRINE OF STATE IMMUNITY FROM SUIT

Discuss the basis of the Doctrine of State Immunity from Suit

The restrictive application of State immunity is proper only when the

Arigo v. Swift, 735 SCRA 102 (2014)

Government Funds may not be subject to Garnishment

The Doctrine should not be used to perpetrate an Injustice on a Citizen

Respondent’s argument is misplaced inasmuch as the principle of State immunity

FUNDAMENTAL PRINCIPLES AND STATE POLICIES (Article II, 1987 Constitution)

The Philippines Adherence to the Doctrine of Incorporation

Section 2, Article II of the 1987 Constitution provides that the Philippines

The Right to Self-Determination of Peoples

This right to self-determination of peoples has gone beyond mere treaty or

We refer now to the petitioner’s invocation of the Yogyakarta Principles (the

The Filipino First Policy

In the grant of rights, privileges and concessions covering the national

Manila Prince Hotel v. GSIS, 267 SCRA 408 (1997) (Bellosillo)

The Right to Life of the Unborn from Conception

When Does Life Begin?

From the deliberations above-quoted, it is apparent that the framers of the

International Service for the Acquisition of Agri-Biotech Applications, Inc. v.

The Precautionary Principle

The precautionary principle originated in Germany in the 1960s, expressing the

In order to protect the environment, the precautionary approach shall be widely

1. There exist considerable scientific uncertainties;

Sec. 1. Applicability. – When there is a lack of full scientific certainty in

SEC. 2. Standards for application. – In applying the precautionary principle,

For purposes of evidence, the precautionary principle should be treated as a principle

Application of the Precautionary Principle to the Bt talong Field Trials in the

Alongside the aforesaid uncertainties, the non-implementation of the NBF (National

Field Trial Proposal of Bt (Bacillus thuringiensis) Talong

The Precautionary Principle

The principle of precaution originated as a social planning principle in Germany. In

Application of the Precautionary Principle

It is notable x x x that the precautionary principle shall only be relevant if there is

In Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et

Main Issue: Legality of Service Contract No. 46.

In summarizing the matters discussed in the ConCom, we established that paragraph

1. The General Law on Oil Exploration

The disposition, exploration, development, exploitation, and utilization of indigenous

Consequently, we find no merit in petitioners’ contention that SC-46 is prohibited on

While the requirements in executing service contracts in paragraph 4, Section 2 of

On the legality of Service Contract No. 46 vis-à-vis Other Laws

THE STRUCTURE OF GOVERNMENT

The main distinction between a presidential form of government and a parliamentary

In a presidential form of government, there is the observance of the doctrine of

Tests of a Valid Delegation of Power