POLITICAL & INTERNATIONAL LAW

Selected Recent Jurisprudence (2010-December 2017)1

By Atty. Alexis F. Medina2

PART III:

Administrative Law, The Law on Public Officers,

Local Government Law, Election Law,
International Law

ADMINISTRATIVE LAW

QUASI-LEGISLATIVE POWERS

Administrative agencies may exercise quasi-legislative or rule-making powers

only if there exists a law which delegates these powers to them.

Administrative agencies may exercise quasi-legislative or rule-making powers only if

there exists a law which delegates these powers to them. Accordingly, the rules so promulgated
must be within the confines of the granting statute and must involve no discretion as to what the
law shall be, but merely the authority to fix the details in the execution or enforcement of the
policy set out in the law itself, so as to conform with the doctrine of separation of powers and, as
an adjunct, the doctrine of non-delegability of legislative power. (Republic v. Drugmakers
Laboratories, G.R. No. 190837, March 5, 2014)

Administrative regulations must comply with the requirements of prior

notice, hearing, and publication in order to be valid and binding, except when these
are merely interpretative in nature.

An administrative regulation may be classified as a legislative rule, an interpretative rule,

or a contingent rule. Legislative rules are in the nature of subordinate legislation and designed
to implement a primary legislation by providing the details thereof. They usually implement
existing law, imposing general, extra-statutory obligations pursuant to authority properly
delegated by Congress and effect a change in existing law or policy which affects individual
rights and obligations. Meanwhile, interpretative rules are intended to interpret, clarify or
explain existing statutory regulations under which the administrative body operates. Their
purpose or objective is merely to construe the statute being administered and purport to do no
more than interpret the statute. Simply, they try to say what the statute means and refer to no
single person or party in particular but concern all those belonging to the same class which may

1 This is a working draft of excerpts from recent jurisprudence, selected and organized under common subjects. The
author wrote the prefatory capsules (bold-faced) to capture the essence of each excerpt, and underscored selected
parts to highlight doctrinal statements, operative words, or case-defining facts. This material is subject to revision,
modification or updating. Reproduction for purely academic purposes with due attribution to the author is permitted.

2 AB Political Science, University of the Philippines (UP), Diliman; Order of the Purple Feather (OPF), UP, College of
Law; Valedictorian, San Sebastian College-Recoletos, Manila, College of Law; Philippine Representative to the World
Trade Organization (WTO) Trade Facilitation Preparatory Committee Meeting for Legal Review (Geneva, Switzerland,
2014); Philippine Representative, Senior Officials’ Meeting, Asia Pacific Economic Cooperation (APEC), 2015;
Litigation lawyer; formerly with the Ponce Enrile Reyes & Manlastas Law Offices (Pecabar); Professor of
Constitutional Law, San Sebastian College-Recoletos, Manila, College of Law, and Polytechnic University of the
Philippines (PUP), Manila, College of Law; former professor of Constitutional Law, New Ear University, College of Law,
Quezon City; Bar Review Lecturer, Recoletos Review Center, Manila; Transaction Adviser on Public-Private
Partnerships (PPPs); Partner, Libra Law
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be covered by the said rules. Finally, contingent rules are those issued by an administrative
authority based on the existence of certain facts or things upon which the enforcement of the law
depends.

In general, an administrative regulation needs to comply with the requirements laid

down by Executive Order No. 292, s. 1987, otherwise known as the "Administrative Code of
1987," on prior notice, hearing, and publication in order to be valid and binding, except when
the same is merely an interpretative rule. This is because "[w]hen an administrative rule is
merely interpretative in nature, its applicability needs nothing further than its bare issuance, for
it gives no real consequence more than what the law itself has already prescribed. When, on the
other hand, the administrative rule goes beyond merely providing for the means that can
facilitate or render least cumbersome the implementation of the law but substantially increases
the burden of those governed, it behooves the agency to accord at least to those directly affected
a chance to be heard, and thereafter to be duly informed, before that new issuance is given the
force and effect of law." (Republic v. Drugmakers Laboratories, G.R. No. 190837, March 5,
2014)

If administrative circulars would not affect the substantive rights of the

parties that they seek to govern, no prior hearing, consultation, and publication are
needed.

Circular Nos. 1 and 8, s. 1997 cannot be considered as administrative regulations because

they do not: (a) implement a primary legislation by providing the details thereof; (b) interpret,
clarify, or explain existing statutory regulations under which the FDA operates; and/or (c)
ascertain the existence of certain facts or things upon which the enforcement of RA 3720
depends. In fact, the only purpose of these circulars is for the FDA to administer and supervise
the implementation of the provisions of AO 67, s. 1989, including those covering the BA/BE
testing requirement, consistent with and pursuant to RA 3720.43 Therefore, the FDA has
sufficient authority to issue the said circulars and since they would not affect the substantive
rights of the parties that they seek to govern – as they are not, strictly speaking, administrative
regulations in the first place – no prior hearing, consultation, and publication are needed for
their validity. (Republic v. Drugmakers Laboratories, G.R. No. 190837, March 5, 2014)

Under certain circumstances, the Legislature can delegate to executive

officers and administrative boards the authority to adopt and promulgate IRRs. In
the delegation, legislative policy must be set and standards established.

The legislative power of the Government is vested exclusively in the Legislature in

accordance with the doctrine of separation of powers. As a general rule, the Legislature cannot
surrender or abdicate its legislative power, for doing so will be unconstitutional. Although the
power to make laws cannot be delegated by the Legislature to any other authority, a power that
is not legislative in character may be delegated.

Under certain circumstances, the Legislature can delegate to executive officers and
administrative boards the authority to adopt and promulgate IRRs. To render such delegation
lawful, the Legislature must declare the policy of the law and fix the legal principles that are to
control in given cases. The Legislature should set a definite or primary standard to guide those
empowered to execute the law. For as long as the policy is laid down and a proper standard is
established by statute, there can be no unconstitutional delegation of legislative power when the
Legislature leaves to selected instrumentalities the duty of making subordinate rules within the
prescribed limits, although there is conferred upon the executive officer or administrative board
a large measure of discretion. There is a distinction between the delegation of power to make a
law and the conferment of an authority or a discretion to be exercised under and in pursuance of
the law, for the power to make laws necessarily involves a discretion as to what it shall be.
(Lokin v. Comelec, G.R. Nos. 179431-32, June 22, 2010)

Administrative regulations cannot extend the law and amend a legislative

enactment. To be valid, administrative regulations must comply with the following
requisites to be valid: 1) its promulgation must be authorized by the Legislature; 2)
it must be within the scope of the authority given by the Legislature; 3) it must be
promulgated in accordance with the prescribed procedure; and 4) it must be
reasonable.

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 The authority to make IRRs in order to carry out an express legislative purpose, or to
effect the operation and enforcement of a law is not a power exclusively legislative in character,
but is rather administrative in nature. The rules and regulations adopted and promulgated must
not, however, subvert or be contrary to existing statutes. The function of promulgating IRRs
may be legitimately exercised only for the purpose of carrying out the provisions of a law. The
power of administrative agencies is confined to implementing the law or putting it into effect.
Corollary to this is that administrative regulation cannot extend the law and amend a legislative
enactment. It is axiomatic that the clear letter of the law is controlling and cannot be amended
by a mere administrative rule issued for its implementation. Indeed, administrative or executive
acts shall be valid only when they are not contrary to the laws or the Constitution.

To be valid, therefore, the administrative IRRs must comply with the following
requisites:

1. Its promulgation must be authorized by the Legislature;

2. It must be within the scope of the authority given by the Legislature;

3. It must be promulgated in accordance with the prescribed procedure; and

4. It must be reasonable.

(Lokin v. Comelec, G.R. Nos. 179431-32, June 22, 2010)

An administrative agency cannot amend an act of Congress, nor enlarge,

alter, or restrict the provisions of the law it administers and enforces.

The delegated authority must be properly exercised. This simply means that the resulting
IRRs must not be ultra vires as to be issued beyond the limits of the authority conferred. It is
basic that an administrative agency cannot amend an act of Congress, for administrative IRRs
are solely intended to carry out, not to supplant or to modify, the law. The administrative agency
issuing the IRRs may not enlarge, alter, or restrict the provisions of the law it administers and
enforces, and cannot engraft additional non-contradictory requirements not contemplated by
the Legislature. (Lokin v. Comelec, G.R. Nos. 179431-32, June 22, 2010)

Prior opportunity to be heard is required before an administrative agency

enforces rules and regulations that substantially adds to or increases the burden of
those governed. Thus, the Comelec should have conducted prior hearings before
promulgating the resolution on aggregate-based air time limits for political
advertising, as this administrative rule introduces a radical change, and adversely
affects, or imposes a heavy and substantial burden on, the citizenry. Consequently,
the new Comelec resolution is ineffectual.

The COMELEC promulgated Resolution No. 9615 on January 15, 2013 then came up
with a public hearing on January 31, 2013 to explain what it had done, particularly on the
aggregate-based air time limits. This circumstance also renders the new regulation, particularly
on the adoption of the aggregate-based airtime limit, questionable. It must not be overlooked
that the new Resolution introduced a radical change in the manner in which the rules on airtime
for political advertisements are to be reckoned. As such there is a need for adequate and
effective means by which they may be adopted, disseminated and implemented. In this regard, it
is not enough that they be published - or explained - after they have been adopted.

x x x [W]hatever might have been said in Commissioner of Internal Revenue v.

Court of Appeals, should also apply mutatis mutandis to the COMELEC when it comes
to promulgating rules and regulations which adversely affect, or impose a heavy and
substantial burden on, the citizenry, in a matter that implicates the very nature of
government we have adopted:

It should be understandable that when an administrative rule is merely

interpretative in nature, its applicability needs nothing further than its bare issuance for it
gives no real consequence more than what the law itself has already prescribed. When,
upon the other hand, the administrative rule goes beyond merely providing for the means
that can facilitate or render least cumbersome the implementation of the law but
substantially adds to or increases the burden of those governed, it behooves the agency to
accord at least to those directly affected a chance to be heard, and thereafter to be duly
informed, before that new issuance is given the force and effect of law.

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 xxx

For failing to conduct prior hearing before coming up with Resolution No. 9615, said
Resolution, specifically in regard to the new rule on aggregate airtime is declared defective and
ineffectual. (GMA Network v. Commission on Elections, G.R. No. 205357, September 2, 2014)

QUASI-JUDICIAL POWERS

As it involves the exercise of discretion in determining the rights and

liabilities of the parties, the proper exercise of quasi-judicial power requires the
concurrence of two elements: one, jurisdiction which must be acquired by the
administrative body and two, the observance of the requirements of due
process, that is, the right to notice and hearing.

The powers of an administrative body are classified into two fundamental powers: quasi-
legislative and quasi-judicial. Quasi-legislative power, otherwise known as the power of
subordinate legislation, has been defined as the authority delegated by the lawmaking body to
the administrative body to adopt rules and regulations intended to carry out the provisions of
law and implement legislative policy. "[A] legislative rule is in the nature of subordinate
legislation, designed to implement a primary legislation by providing the details thereof." The
exercise by the administrative body of its quasi-legislative power through the promulgation of
regulations of general application does not, as a rule, require notice and hearing. The only
exception being where the Legislature itself requires it and mandates that the regulation shall be
based on certain facts as determined at an appropriate investigation.

Quasi-judicial power, on the other hand, is known as the power of the administrative
agency to determine questions of fact to which the legislative policy is to apply, in accordance
with the standards laid down by the law itself. As it involves the exercise of discretion in
determining the rights and liabilities of the parties, the proper exercise of quasi-judicial power
requires the concurrence of two elements: one, jurisdiction which must be acquired by the
administrative body and two, the observance of the requirements of due process, that
is, the right to notice and hearing.

On the argument that the certification proceedings were conducted by the FDA in the
exercise of its "regulatory powers" and, therefore, beyond judicial review, the Court holds that it
has the power to review all acts and decisions where there is a commission of grave abuse of
discretion. No less than the Constitution decrees that the Court must exercise its duty to ensure
that no grave abuse of discretion amounting to lack or excess of jurisdiction is committed by any
branch or instrumentality of the Government. Such is committed when there is a violation of the
constitutional mandate that "no person is deprived of life, liberty, and property without due
process of law." The Court's power cannot be curtailed by the FDA's invocation of its regulatory
power. (Alliance for the Family v. Garin, April 26, 2017, G.R. No. 217872)

The exercise of "regulatory power" does not place an administrative agency

beyond the reach of judicial review. When there is grave abuse of discretion, such as
denying a party of his constitutional right to due process, the Court can come in and
exercise its power of judicial review.

To better enable the administrative body to exercise its quasi judicial authority, it is
also vested with what is known as determinative powers and functions.

Professor Freund classifies them generally into the enabling powers and
the directing powers. The latter includes the dispensing, the examining, and
the summary powers.

The enabling vowers are those that permit the doing of an act which the law
undertakes to regulate and which would be unlawful with government
approval. The most common example is the issuance of licenses to engage in a particular
business or occupation, like the operation of a liquor store or restaurant. x x x. [Emphases and
underscoring supplied]

From the above, two things are apparent: one, the "enabling powers" cover "regulatory
powers" as defined by the respondents; and two, they refer to a subcategory of a quasi-judicial
power which, xxx requires the compliance with the twin requirements of notice and hearing.

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Nowhere from the above-quoted texts can it be inferred that the exercise of "regulatory power"
places an administrative agency beyond the reach of judicial review. When there is grave abuse
of discretion, such as denying a party of his constitutional right to due process, the Court can
come in and exercise its power of judicial review. It can review the challenged acts, whether
exercised by the FDA in its ministerial, quasi-judicial or regulatory power. In the past, the Court
exercised its power of judicial review over acts and decisions of agencies exercising their
regulatory powers xxxxx. (Alliance for the Family v. Garin, April 26, 2017, G.R. No. 217872)

Where there is a violation of basic constitutional rights, the courts are ousted
from their jurisdiction. A decision rendered in disregard of the right to due process
is void for lack of jurisdiction. This rule is equally true in quasi-judicial and
administrative proceedings.

In Ang Tibay v. CJR, the Court laid down the cardinal rights of parties in administrative
proceedings, as follows:

1) The right to a hearing, which includes the right to present one's case and submit
evidence in support thereof;
2) The tribunal must consider the evidence presented;
3) The decision must have something to support itself;
4) The evidence must be substantial;
5) The decision must be rendered on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected;
6) The tribunal or body or any of its judges must act on its or his own independent
consideration of the law and facts of the controversy and not simply accept the views of a
subordinate in arriving at a decision; and
7) The board or body should, in all controversial questions, render its decision in such a
manner that the parties to the proceeding can know the various issues involved, and the reason
for the decision rendered.

In the Decision, the Court found that the FDA certified, procured and administered
contraceptive drugs and devices, without the observance of the basic tenets of due process, that
is, without notice and without public hearing. It appeared that, other than the notice inviting
stakeholders to apply for certification/recertification of their reproductive health products, there
was no showing that the respondents considered the opposition of the petitioners. Thus, the
Court wrote:

Rather than provide concrete evidence to meet the petitioners' opposition, the
respondents simply relied on their challenge questioning the propriety of the subject petition on
technical and procedural grounds. The Court notes that even the letters submitted by the
petitioners to the FDA and the DOH seeking information on the actions taken by the agencies
regarding their opposition were left unanswered as if they did not exist at all. The mere fact that
the RH Law was declared as not unconstitutional does not permit the respondents to run
roughshod over the constitutional rights, substantive and procedural, of the petitioners.

Indeed, although the law tasks the FDA as the primary agency to determine whether a
contraceptive drug or certain device has no abortifacient effects, its findings and conclusion
should be allowed to be questioned and those who oppose the same must be given a genuine
opportunity to be heard in their stance. xxxx

Due to the failure of the respondents to observe and comply with the basic requirements
of due process, the Court is of the view that the certifications/re-certifications and the
distribution of the questioned contraceptive drugs by the respondents should be struck down as
violative of the constitutional right to due process.

Verily, it is a cardinal precept that where there is a violation of basic constitutional

rights, the courts are ousted from their jurisdiction. The violation of a party's right to due
process raises a serious jurisdictional issue which cannot be glossed over or disregarded at will.
Where the denial of the fundamental right to due process is apparent, a decision rendered in
disregard of that right is void for lack of jurisdiction. This rule is equally true in quasi-judicial
and administrative proceedings, for the constitutional guarantee that no man shall be deprived
of life, liberty, or property without due process is unqualified by the type of proceedings
(whether judicial or administrative) where he stands to lose the same. (Alliance for the Family
v. Garin, April 26, 2017, G.R. No. 217872)

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 A formal trial-type hearing is not even essential to due process. It is enough
that the parties are given a fair and reasonable opportunity to explain their
respective sides of the controversy and to present supporting evidence on which a
fair decision can be based.

The Court is of the view that the FDA need not conduct a trial-type hearing. Indeed, due
process does not require the conduct of a trial-type hearing to satisfy its requirements. All that
the Constitution requires is that the FDA afford the people their right to due process of law and
decide on the applications submitted by MAHs after affording the oppositors like the petitioners
a genuine opportunity to present their science-based evidence. As earlier pointed out, this the
FDA failed to do. It simply ignored the opposition of the petitioners. In the case of Perez, et
al. v. Philippine Telegraph and Telephone Company, et al., it was stated that:

A formal trial-type hearing is not even essential to due process. It is

enough that the parties are given a fair and reasonable opportunity to explain
their respective sides of the controversy and to present supporting evidence on
which a fair decision can be based.

In the fairly recent case of Vivo v. Pagcor, the Court explained:

The observance of fairness in the conduct of any investigation is at the very heart of
procedural due process. The essence of due process is to be heard, and, as applied to
administrative proceedings, this means a fair and reasonable opportunity to explain one's side,
or an opportunity to seek a reconsideration of the action or ruling complained
of. Administrative due process cannot be fully equated with due process in its strict
judicial sense, for in the former a formal or trial-type hearing is not always
necessary, and technical rules of procedure are not strictly applied. Ledesma v. Court of
Appeals elaborates on the well-established meaning of due process in administrative
proceedings in this wise:

x x x Due process, as a constitutional precept, does not always and in all situations
require a trial-type proceeding. Due process is satisfied when a person is notified of the charge
against him and given an opportunity to explain or defend himself. In administrative
proceedings, the filing of charges and giving reasonable opportunity for the person so charged to
answer the accusations against him constitute the minimum requirements of due process. The
essence of due process is simply to be heard, or as applied to administrative proceedings, an
opportunity to explain one's side, or an opportunity to seek a reconsideration of the action or
ruling complained of. (Alliance for the Family v. Garin, April 26, 2017, G.R. No. 217872)

The essence of due process in administrative proceedings is the opportunity

to explain one’s side or the opportunity to seek a reconsideration. What is frowned
upon is absolute lack of notice and hearing.

On the due process issue, we agree with the COMELEC that PGBI’s right to due process
was not violated for PGBI was given an opportunity to seek, as it did seek, a reconsideration of
Resolution No. 8679. The essence of due process, we have consistently held, is simply the
opportunity to be heard; as applied to administrative proceedings, due process is the
opportunity to explain one’s side or the opportunity to seek a reconsideration of the action or
ruling complained of. A formal or trial-type hearing is not at all times and in all instances
essential. The requirement is satisfied where the parties are afforded fair and reasonable
opportunity to explain their side of the controversy at hand. What is frowned upon is absolute
lack of notice and hearing. (Philippine Guardians Brotherhood v. Comelec, G.R. No. 190529,
April 29, 2010)

The essence of due process as applied to administrative proceedings means a

fair and reasonable opportunity to explain one’s side, or an opportunity to seek a
reconsideration of the action or ruling complained of. In administrative proceedings,
a formal or trial-type hearing is not always necessary, and technical rules of
procedure are not strictly applied. Also, the presence of counsel is not indispensable
in the conduct of administrative proceedings. Defects in procedural due process may
be cured when the party has been afforded the opportunity to appeal or to seek
reconsideration of the action or ruling complained of.

The observance of fairness in the conduct of any investigation is at the very heart of
procedural due process. The essence of due process is to be heard, and, as applied to
administrative proceedings, this means a fair and reasonable opportunity to explain one’s side,

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or an opportunity to seek a reconsideration of the action or ruling complained of. Administrative
due process cannot be fully equated with due process in its strict judicial sense, for in the former
a formal or trial-type hearing is not always necessary, and technical rules of procedure are not
strictly applied. xxxx

Due process, as a constitutional precept, does not always and in all situations require a
trial-type proceeding. Due process is satisfied when a person is notified of the charge against
him and given an opportunity to explain or defend himself. In administrative proceedings, the
filing of charges and giving reasonable opportunity for the person so charged to answer the
accusations against him constitute the minimum requirements of due process. The essence of
due process is simply to be heard, or as applied to administrative proceedings, an opportunity to
explain one’s side, or an opportunity to seek a reconsideration of the action or ruling
complained of.

The petitioner actively participated in the entire course of the investigation and hearings
conducted by PAGCOR. x x x He was also given the opportunity to appear before the
Adjudication Committee to answer clarificatory questions. Lastly, he was informed through a
memorandum of the decision of the Board of Directors dismissing him from the service.

x x x There is also no question that PAGCOR complied with the twin-notice requirement
prior to the termination of his employment x x x x. It is settled that there is no denial of
procedural due process where the opportunity to be heard either through oral arguments or
through pleadings is accorded. (Vivo v. Philippine Amusement and Gaming Corporation, G.R.
No. 187854, November 12, 2013)

In an administrative proceeding, a respondent has the option of engaging the

services of counsel. As such, the right to counsel is not imperative. Thus, there is
nothing objectionable in the denial by an adjudicating body of a request to
reschedule an administrative conference because the counsel for the respondent
would not be available.

As regards the supposed denial of the petitioner’s right to counsel, it is underscored that
PAGCOR denied his request to re-schedule the conference before the Adjudication Committee
because his counsel would not be available on the day fixed for that purpose. In its letter denying
the request, the Adjudication Committee asserted that the presence of counsel was not
indispensable in the conduct of its proceedings. We find nothing objectionable in the denial of
the request. In an administrative proceeding like that conducted against the petitioner, a
respondent has the option of engaging the services of counsel. As such, the right to counsel is
not imperative because administrative investigations are themselves inquiries conducted only to
determine whether there are facts that merit disciplinary measures against erring public officers
and employees, with the purpose of maintaining the dignity of government service. (Vivo v.
Philippine Amusement and Gaming Corporation, G.R. No. 187854, November 12, 2013)

Any procedural defect in an administrative proceeding is cured by the filing of

a motion for reconsideration and by an appeal from the adverse ruling.

In any event, any procedural defect in the proceedings taken against the petitioner was
cured by his filing of the motion for reconsideration and by his appealing the adverse result to
the CSC. The Court held in Gonzales v. Civil Service Commission that any defect in the
observance of due process is cured by the filing of a motion for reconsideration, and that denial
of due process cannot be successfully invoked by a party who was afforded the opportunity to be
heard. In Autencio v. Mañara, the Court observed that defects in procedural due process may be
cured when the party has been afforded the opportunity to appeal or to seek reconsideration of
the action or ruling complained of.

The petitioner was not denied due process of law, for he was afforded the fair and
reasonable opportunity to explain his side. That, to us, was sufficient to meet the requirements
of due process. In Casimiro v. Tandog, the Court pronounced:

The essence of procedural due process is embodied in the basic

requirement of notice and a real opportunity to be heard. In administrative
proceedings, such as in the case at bar, procedural due process simply means the
opportunity to explain one’s side or the opportunity to seek a reconsideration of
the action or ruling complained of. "To be heard" does not mean only verbal
arguments in court; one may be heard also thru pleadings. Where opportunity to
be heard, either through oral arguments or pleadings, is accorded, there is no
denial of procedural due process.
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 In administrative proceedings, procedural due process has been recognized
to include the following: (1) the right to actual or constructive notice of the
institution of proceedings which may affect a respondent’s legal rights; (2) a real
opportunity to be heard personally or with the assistance of counsel, to present
witnesses and evidence in one’s favor, and to defend one’s rights; (3) a tribunal
vested with competent jurisdiction and so constituted as to afford a person charged
administratively a reasonable guarantee of honesty as well as impartiality; and (4)
a finding by said tribunal which is supported by substantial evidence submitted for
consideration during the hearing or contained in the records or made known to the
parties affected.

(Vivo v. Philippine Amusement and Gaming Corporation, G.R. No. 187854, November
12, 2013)

A party in an administrative inquiry may or may not be assisted by counsel,

irrespective of the nature of the charges and of petitioner’s capacity to represent
herself, and no duty rests on such body to furnish the person being investigated
with counsel.

Petitioner faults the CSCs finding because it was based solely on her uncounseled
admission taken during the investigation by the [Civil Service Commission Regional Office No.
IV]. She claims that her right to due process was violated because she was not afforded the right
to counsel when her statement was taken.

It is true that the CSCRO IV, the CSC, and the CA gave credence to petitioner’s
uncounseled statements and, partly on the basis thereof, uniformly found petitioner liable for
the charge of dishonesty, grave misconduct, and falsification of official document.

However, it must be remembered that the right to counsel under Section 12 of the Bill of
Rights is meant to protect a suspect during custodial investigation. Thus, the exclusionary rule
under paragraph (2), Section 12 of the Bill of Rights applies only to admissions made in a
criminal investigation but not to those made in an administrative investigation.

While investigations conducted by an administrative body may at times be akin to a

criminal proceeding, the fact remains that, under existing laws, a party in an administrative
inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of
petitioners capacity to represent herself, and no duty rests on such body to furnish the person
being investigated with counsel. The right to counsel is not always imperative in administrative
investigations because such inquiries are conducted merely to determine whether there are facts
that merit the imposition of disciplinary measures against erring public officers and employees,
with the purpose of maintaining the dignity of government service.

As such, the admissions made by petitioner during the investigation may be used as
evidence to justify her dismissal. (Carbonel v. Civil Service Commission, G.R. No. 187689,
September 7, 2010)

Findings of fact of administrative bodies will not be interfered with by the

courts in the absence of grave abuse of discretion or unless the findings are not
supported by substantial evidence. These factual findings carry even more weight
when affirmed by the CA, in which case they are accorded not only great respect,
but even finality.

[T]he findings of fact of administrative bodies will not be interfered with by the courts in
the absence of grave abuse of discretion on the part of the former, or unless the aforementioned
findings are not supported by substantial evidence. These factual findings carry even more
weight when affirmed by the CA, in which case they are accorded not only great respect, but
even finality. These findings are binding upon this Court, unless it is shown that the
administrative body has arbitrarily disregarded or misapprehended evidence before the latter to
such an extent as to compel a contrary conclusion, had the evidence been properly appreciated.
This rule is rooted in the doctrine that this Court is not a trier of facts. By reason of the special
knowledge and expertise of administrative agencies over matters falling under their jurisdiction,
they are in a better position to pass judgment on those matters.

This Court will not disturb the factual findings of both the CSC and the CA, absent any
compelling reason to do so. The conclusion reached by the administrative agencies involved –
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after their own thorough investigations and hearings, as well as their consideration of the
evidence presented before them and their findings thereon, especially when affirmed by the CA
– must now be regarded with great respect and finality by this Court. (Encinas v. Agustin, G.R.
No. 187317, April 11, 2013)

Factual findings of administrative agencies are generally accorded respect

and even finality by this Court, if such findings are supported by, substantial
evidence

[F]actual findings of administrative agencies are generally accorded respect and even
finality by this Court, if such findings are supported by, substantial evidence. The factual
findings of the DAR Secretary, who, by reason of his official position, has acquired expertise in
specific matters within his jurisdiction, deserve full respect and, without justifiable reason,
ought not to be altered, modified, or reversed. (Castro v. Lozada, G.R. No. 163026, August 29,
2012)

[B]y reason of their special knowledge and expertise gained from the handling of specific
matters falling under their respective jurisdictions, the factual findings of administrative
tribunals are ordinarily accorded respect if not finality by the Court, unless such findings are not
supported by evidence or vitiated by fraud, imposition or collusion; where the procedure which
led to the findings is irregular; when palpable errors are committed; or when a grave abuse of
discretion, arbitrariness, or capriciousness is manifest. In the case of Cadet 1 CL Cudia, We find
no reason to deviate from the general rule. (Cudia v. The Superintendent of the Philippine
Military Academy, G.R. No. 211362, February 24, 2015)

The doctrine of conclusiveness of administrative findings of fact is not

absolute. When the findings of fact by the administrative or quasi-judicial agencies
are not adequately supported by substantial evidence, they shall not be binding
upon the courts.

It is well settled that findings of fact by the Office of the Ombudsman are conclusive
when supported by substantial evidence. Their factual findings are generally accorded with great
weight and respect, if not finality by the courts, by reason of their special knowledge and
expertise over matters falling under their jurisdiction.

This rule was reiterated in Cabalit v. Commission on Audit-Region VII, where we held
that:
When the findings of fact of the Ombudsman are supported by substantial
evidence, it should be considered as conclusive. This Court recognizes the expertise and
independence of the Ombudsman and will avoid interfering with its findings absent a
finding of grave abuse of discretion. Hence, being supported by substantial evidence, we
find no reason to disturb the factual findings of the Ombudsman which are affirmed by the
CA.

This rule on conclusiveness of factual findings, however, is not an absolute one. Despite
the respect given to administrative findings of fact, the CA may resolve factual issues, review and
re-evaluate the evidence on record and reverse the administrative agency’s findings if not
supported by substantial evidence. Thus, when the findings of fact by the administrative or
quasi-judicial agencies (like the Office of the Ombudsman/Deputy Ombudsman) are not
adequately supported by substantial evidence, they shall not be binding upon the courts.

In the present case, the CA found no substantial evidence to support the conclusion that
the respondents are guilty of the administrative charges against them. Mere allegation and
speculation is not evidence, and is not equivalent to proof. (Miro v. Mendoza, G.R. Nos. 172532
172544-45, November 20, 2013)

Court injunctions against Ombudsman investigations: The prohibition under

Section 14, RA 6770 against courts other than the Supreme Court from issuing
provisional injunctive writs to enjoin investigations conducted by the Office of the
Ombudsman encroaches upon the Supreme Court’s rule-making authority and
should be considered ineffective, pending deliberation on whether or not the
Supreme Court should adopt such prohibition.

9|Page
 The Ombudsman’s argument against the CA’s lack of subject matter jurisdiction over the
main petition, and her corollary prayer for its dismissal, is based on her interpretation of Section
14, RA 6770, or the Ombudsman Act, which reads in full:

Section 14. Restrictions. – 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.

xxxx

The first paragraph of Section 14, RA 6770 is a prohibition against any court (except the
Supreme Court119) from issuing a writ of injunction to delay an investigation being conducted
by the Office of the Ombudsman. x x x x

xxx [T]he Court rules that when Congress passed the first paragraph of Section 14, RA
6770 and, in so doing, took away from the courts their power to issue a TRO and/or
WPI to enjoin an investigation conducted by the Ombudsman, it encroached upon
this Court’s constitutional rule-making authority. Clearly, these issuances, which are, by
nature, provisional reliefs and auxiliary writs created under the provisions of the Rules of Court,
are matters of procedure which belong exclusively within the province of this Court. Rule 58 of
the Rules of Court did not create, define, and regulate a right but merely prescribed the means of
implementing an existing right since it only provided for temporary reliefs to preserve the
applicant’s right in esse which is threatened to be violated during the course of a pending
litigation.

xxxx

xxx When Congress creates a court and delimits its jurisdiction, the procedure for which
its jurisdiction is exercised is fixed by the Court through the rules it promulgates. The first
paragraph of Section 14, RA 6770 is not a jurisdiction-vesting provision, as the Ombudsman
misconceives, because it does not define, prescribe, and apportion the subject matter
jurisdiction of courts to act on certiorari cases; the certiorari jurisdiction of courts, particularly
the CA, stands under the relevant sections of BP 129 which were not shown to have been
repealed. Instead, through this provision, Congress interfered with a provisional remedy that
was created by this Court under its duly promulgated rules of procedure, which utility is both
integral and inherent to every court’s exercise of judicial power. Without the Court’s consent to
the proscription, as may be manifested by an adoption of the same as part of the rules of
procedure through an administrative circular issued therefor, there thus, stands to be a
violation of the separation of powers principle.

In addition, it should be pointed out that the breach of Congress in prohibiting

provisional injunctions, such as in the first paragraph of Section 14, RA 6770, does not only
undermine the constitutional allocation of powers; it also practically dilutes a
court’s ability to carry out its functions. This is so since a particular case can easily be
mooted by supervening events if no provisional injunctive relief is extended while the court is
hearing the same. Accordingly, the court’s acquired jurisdiction, through which it exercises its
judicial power, is rendered nugatory. Indeed, the force of judicial power, especially under the
present Constitution, cannot be enervated due to a court’s inability to regulate what occurs
during a proceeding’s course. As earlier intimated, when jurisdiction over the subject matter is
accorded by law and has been acquired by a court, its exercise thereof should be unclipped. To
give true meaning to the judicial power contemplated by the Framers of our
Constitution, the Court’s duly promulgated rules of procedure should therefore
remain unabridged, this, even by statute. Truth be told, the policy against
provisional injunctive writs in whatever variant should only subsist under rules of
procedure duly promulgated by the Court given its sole prerogative over the same.

xxxx

xxx Thus, pending deliberation on whether or not to adopt the same, the
Court, under its sole prerogative and authority over all matters of procedure,
deems it proper to declare as ineffective the prohibition against courts other than
the Supreme Court from issuing provisional injunctive writs to enjoin
investigations conducted by the Office of the Ombudsman, until it is adopted as part of
the rules of procedure through an administrative circular duly issued therefor.
10 | P a g e
 Hence, with Congress interfering with matters of procedure (through passing the first
paragraph of Section 14, RA 6770) without the Court’s consent thereto, it remains that the CA
had the authority to issue the questioned injunctive writs enjoining the implementation of the
preventive suspension order against Binay, Jr. At the risk of belaboring the point, these
issuances were merely ancillary to the exercise of the CA’s certiorari jurisdiction conferred to it
under Section 9 (1), Chapter I of BP 129, as amended, and which it had already acquired over the
main CA-G.R. SP No. 139453 case. (Carpio-Morales v. Court of Appeals, G.R. Nos. 217126-27,
November 10, 2015)

Doctrine of primary jurisdiction: When a case requires the expertise,

specialized training and knowledge of the proper administrative bodies, relief must
first be obtained in an administrative proceeding before a remedy is supplied by the
courts.

The doctrine of primary jurisdiction holds that if a case is such that its determination
requires the expertise, specialized training and knowledge of the proper administrative bodies,
relief must first be obtained in an administrative proceeding before a remedy is supplied by the
courts even if the matter may well be within their proper jurisdiction. It applies where a claim is
originally cognizable in the courts, and comes into play whenever enforcement of the claim
requires the resolution of issues which, under a regulatory scheme, have been placed within the
special competence of an administrative agency. In such a case, the court in which the claim is
sought to be enforced may suspend the judicial process pending referral of such issues to the
administrative body for its view or, if the parties would not be unfairly disadvantaged, dismiss
the case without prejudice.

The objective of the doctrine of primary jurisdiction is to guide the court in determining
whether it should refrain from exercising its jurisdiction until after an administrative agency has
determined some question or some aspect of some question arising in the proceeding before the
court.

As can be gleaned, respondent seeks to enforce a claim for sums of money allegedly owed
by petitioner, a local government unit.

Under Commonwealth Act No. 327, as amended by Section 26 of Presidential Decree No.
1445, it is the COA which has primary jurisdiction over money claims against government
agencies and instrumentalities. x x x

Pursuant to its rule-making authority conferred by the 1987 Constitution and existing
laws, the COA promulgated the 2009 Revised Rules of Procedure of the Commission on Audit.
Rule II, Section 1 specifically enumerated those matters falling under COA’s exclusive
jurisdiction, which include "money claims due from or owing to any government agency." x x x

In Euro-Med Laboratories Phil., Inc. v. Province of Batangas, we ruled that it is the

COA and not the RTC which has primary jurisdiction to pass upon petitioner’s money claim
against respondent local government unit. Such jurisdiction may not be waived by the parties’
failure to argue the issue nor active participation in the proceedings.

xxx

Respondent’s collection suit being directed against a local government unit, such money
claim should have been first brought to the COA. Hence, the RTC should have suspended the
proceedings and refer the filing of the claim before the COA. Moreover, petitioner is not
estopped from raising the issue of jurisdiction even after the denial of its notice of appeal and
before the CA. (Province of Aklan v. Jody King Construction and Development Corp., G.R. Nos.
197592 & 20262, November 27, 2013)

Doctrine of Primary Jurisdiction: The RTC has jurisdiction over a petition for
prohibition but the National Electrification Administration (NEA) has jurisdiction
over the question of the validity of a board resolution issued by an electric
cooperative.

It is true that the RTC has jurisdiction over the petition for prohibition filed by
respondent. However, the basic issue in the present case is not whether the RTC has jurisdiction
over the petition for prohibition filed by respondent; rather, the issue is who between the RTC
11 | P a g e
and the NEA has primary jurisdiction over the question of the validity of the Board Resolution
issued by SAMELCO II. A careful reading of the above-quoted provisions of P.D. No. 1645
clearly show that, pursuant to its power of supervision and control, the NEA is granted the
authority to conduct investigations and other similar actions as well as to issue orders, rules and
regulations with respect to all matters affecting electric cooperatives. Certainly, the matter as to
the validity of the resolution issued by the Board of Directors of SAMELCO II, which practically
removed respondent from his position as a member of the Board of Directors and further
disqualified him to run as such in the ensuing election, is a matter which affects the said electric
cooperative and, thus, comes within the ambit of the powers of the NEA as expressed in Sections
5 and 7 of P.D. No. 1645.

[T]o sustain the petition for prohibition filed by respondent with the RTC would
constitute an unnecessary intrusion into the NEA's power of supervision and control over
electric cooperatives.

[W]hile the RTC has jurisdiction over the petition for prohibition filed by respondent,
the NEA, in the exercise of its power of supervision and control, has primary jurisdiction to
determine the issue of the validity of the subject resolution. (Samar II Electric Cooperative v.
Seludo, G.R. No. 173840, April 25, 2012)

Doctrine of exhaustion of administrative remedies: If a remedy within the

administrative machinery can be resorted to by giving the administrative officer
every opportunity to decide on a matter that comes within his jurisdiction, then
such remedy must be exhausted first before the court’s power of judicial review can
be sought.

Corollary to the doctrine of primary jurisdiction is the principle of exhaustion of

administrative remedies. The Court, in a long line of cases, has held that before a party is
allowed to seek the intervention of the courts, it is a pre-condition that he avail himself of all
administrative processes afforded him. Hence, if a remedy within the administrative machinery
can be resorted to by giving the administrative officer every opportunity to decide on a matter
that comes within his jurisdiction, then such remedy must be exhausted first before the court’s
power of judicial review can be sought. The premature resort to the court is fatal to one’s cause
of action. Accordingly, absent any finding of waiver or estoppel, the case may be dismissed for
lack of cause of action.

The doctrine of exhaustion of administrative remedies is based on practical and legal

reasons. The availment of administrative remedy entails lesser expenses and provides for a
speedier disposition of controversies. Furthermore, the courts of justice, for reasons of comity
and convenience, will shy away from a dispute until the system of administrative redress has
been completed and complied with, so as to give the administrative agency concerned every
opportunity to correct its error and dispose of the case.

True, the doctrines of primary jurisdiction and exhaustion of administrative remedies

are subject to certain exceptions, to wit: (a) where there is estoppel on the part of the party
invoking the doctrine; (b) where the challenged administrative act is patently illegal, amounting
to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will
irretrievably prejudice the complainant; (d) where the amount involved is relatively so small as
to make the rule impractical and oppressive; (e) where the question involved is purely legal and
will ultimately have to be decided by the courts of justice; (f) where judicial intervention is
urgent; (g) where the application of the doctrine may cause great and irreparable damage; (h)
where the controverted acts violate due process; (i) where the issue of non-exhaustion of
administrative remedies has been rendered moot; (j) where there is no other plain, speedy and
adequate remedy; (k) where strong public interest is involved; and (l) in quo warranto
proceedings.

Respondent, however, failed to show that the instant case falls under any of the above-
enumerated exceptions. While respondent alleged in his Urgent Petition for Prohibition that the
subject resolution was issued with grave abuse of discretion and in violation of his right to due
process, mere allegation of arbitrariness will not suffice to vest in the trial court the power that
has been specifically granted by law to special government agencies. Moreover, the issues raised
in the petition for prohibition x x x involve a determination of factual matters which fall within
the competence of the NEA to ascertain.

[T]he availability of an administrative remedy via a complaint filed before the NEA
precludes respondent from filing a petition for prohibition before the court. It is settled that one
of the requisites for a writ of prohibition to issue is that there is no plain, speedy and adequate
12 | P a g e
remedy in the ordinary course of law. In order that prohibition will lie, the petitioner must first
exhaust all administrative remedies. Thus, respondent's failure to file a complaint before the
NEA prevents him from filing a petition for prohibition before the RTC. (Samar II Electric
Cooperative v. Seludo, G.R. No. 173840, April 25, 2012)

Exceptions to the doctrine of primary jurisdiction

There are established exceptions to the doctrine of primary jurisdiction, such as:

(a) where there is estoppel on the part of the party invoking the doctrine; (b) where the
challenged administrative act is patently illegal, amounting to lack of jurisdiction; (c) where
there is unreasonable delay or official inaction that will irretrievably prejudice the complainant;
(d) where the amount involved is relatively small so as to make the rule impractical and
oppressive; (e) where the question involved is purely legal and will ultimately have to be decided
by the courts of justice; (f) where judicial intervention is urgent; (g) when its application may
cause great and irreparable damage; (h) where the controverted acts violate due process; (i)
when the issue of non-exhaustion of administrative remedies has been rendered moot; (j) when
there is no other plain, speedy and adequate remedy; (k) when strong public interest is involved;
and, (l) in quo warranto proceedings. However, none of the foregoing circumstances is
applicable in the present case.

The doctrine of primary jurisdiction does not warrant a court to arrogate unto itself
authority to resolve a controversy the jurisdiction over which is initially lodged with an
administrative body of special competence. All the proceedings of the court in violation of the
doctrine and all orders and decisions rendered thereby are null and void. (Province of Aklan v.
Jody King Construction and Development Corp., G.R. Nos. 197592 & 20262, November 27,
2013)

Requirements for forum-shopping and res judicata in administrative cases

Petitioner argues that respondents are guilty of forum-shopping for filing two allegedly
identical Complaints in violation of the rules on forum-shopping. He explains that dishonesty,
grave misconduct, and conduct prejudicial to the best interest of the service—charges included
in the CSCRO Complaint—were charges that were equivalent to the BFP Complaint, the subject
of which was his alleged violation of R.A. 6975 or illegal transfer of personnel.

We do not agree with petitioner. In Yu v. Lim, this Court enumerated the requisites of
forum-shopping as follows:

Forum-shopping exists when the elements of litis pendentia are present or where a final
judgment in one case will amount to res judicata in another. Litis pendentia requires the
concurrence of the following requisites: (1) identity of parties, or at least such parties as those
representing the same interests in both actions; (2) identity of rights asserted and reliefs prayed
for, the reliefs being founded on the same facts; and (3) identity with respect to the two
preceding particulars in the two cases, such that any judgment that may be rendered in the
pending case, regardless of which party is successful, would amount to res judicata in the other
case.

Applying the foregoing requisites to this case, we rule that the dismissal of the BFP
Complaint does not constitute res judicata in relation to the CSCRO Complaint. Thus, there is no
forum-shopping on the part of respondents.

Res judicata means "a matter adjudged; a thing judicially acted upon or decided; a thing
or matter settled by judgment." It lays down the rule that an existing final judgment or decree
on the merits, rendered without fraud or collusion by a court of competent jurisdiction upon any
matter within its jurisdiction, is conclusive of the rights of the parties or their privies in all other
actions or suits, in the same or any other judicial tribunal of concurrent jurisdiction, on the
points and matters in issue in the first suit.

In order that res judicata may bar the institution of a subsequent action, the following
requisites must concur: (a) the former judgment must be final; (b) it must have been rendered
by a court having jurisdiction over the subject matter and the parties; (c) it must be a judgment
on the merits; and (d) there must be between the first and the second actions (i) identity of
parties, (ii) identity of subject matter, and (iii) identity of cause of action.

13 | P a g e
 A judgment may be considered as one rendered on the merits "when it determines the
rights and liabilities of the parties based on the disclosed facts, irrespective of formal, technical
or dilatory objections;" or when the judgment is rendered "after a determination of which party
is right, as distinguished from a judgment rendered upon some preliminary or formal or merely
technical point." (Encinas v. PO1 Agustin and PO1 Caubang, G.R. No. 187317, April 11, 2013)

The doctrine of res judicata applies only to judicial or quasi-judicial

proceedings, and not to the exercise of administrative powers. Adjudication signifies
the exercise of the power to adjudicate upon the rights and obligations of the
parties. If the only purpose of an investigation is to evaluate the evidence submitted
to an agency based on the facts and circumstances presented to it, and if the agency
is not authorized to make a final pronouncement affecting the parties, then there is
an absence of judicial discretion and judgment.

The CA was correct in ruling that the doctrine of res judicata applies only to judicial or
quasi-judicial proceedings, and not to the exercise of administrative powers. Administrative
powers here refer to those purely administrative in nature, as opposed to administrative
proceedings that take on a quasi-judicial character.

In administrative law, a quasi-judicial proceeding involves (a) taking and evaluating

evidence; (b) determining facts based upon the evidence presented; and (c) rendering an order
or decision supported by the facts proved. The exercise of quasi-judicial functions involves a
determination, with respect to the matter in controversy, of what the law is; what the legal rights
and obligations of the contending parties are; and based thereon and the facts obtaining, the
adjudication of the respective rights and obligations of the parties. In Bedol v. Commission on
Elections, this Court declared:
Quasi-judicial or administrative adjudicatory power on the other hand is the power
of the administrative agency to adjudicate the rights of persons before it. It is the power to
hear and determine questions of fact to which the legislative policy is to apply and to decide
in accordance with the standards laid down by the law itself in enforcing and administering
the same law. The administrative body exercises its quasi-judicial power when it performs
in a judicial manner an act which is essentially of an executive or administrative nature,
where the power to act in such manner is incidental to or reasonably necessary for the
performance of the executive or administrative duty entrusted to it. In carrying out their
quasi-judicial functions the administrative officers or bodies are required to investigate
facts or ascertain the existence of facts, hold hearings, weigh evidence, and draw
conclusions from them as basis for their official action and exercise of discretion in a
judicial nature.

The Court has laid down the test for determining whether an administrative body is
exercising judicial or merely investigatory functions: adjudication signifies the exercise of the
power and authority to adjudicate upon the rights and obligations of the parties. Hence, if the
only purpose of an investigation is to evaluate the evidence submitted to an agency based on the
facts and circumstances presented to it, and if the agency is not authorized to make a final
pronouncement affecting the parties, then there is an absence of judicial discretion and
judgment. (Encinas v. PO1 Agustin and PO1 Caubang, G.R. No. 187317, April 11, 2013)

The results of a fact-finding investigation are not a “judgment on the merits”

for purposes of the application of the doctrine of res judicata. A fact-finding
investigation for purposes of determining whether a formal charge for an
administrative offense should be filed is an exercise of administrative powers, not
judicial or quasi-judicial powers, as such investigation is not an adjudication upon
the rights, obligations, or liabilities of the parties involved.

In this case, there is no "judgment on the merits" in contemplation of the definition

above. The dismissal of the BFP Complaint in the Resolution dated 05 July 2005 was the result
of a fact-finding investigation for purposes of determining whether a formal charge for an
administrative offense should be filed. Hence, no rights and liabilities of parties were
determined therein with finality.

xxxx

In this case, an analysis of the proceedings before the BFP yields the conclusion that they
were purely administrative in nature and constituted a fact-finding investigation for purposes of

14 | P a g e
determining whether a formal charge for an administrative offense should be filed against
petitioner.

It can be gleaned from the Resolution dated 05 July 2005 itself that the purpose of the
BFP proceedings was to determine whether there was sufficient ground to warrant the filing of
an appropriate administrative offense against petitioner. x x x

The proceedings before the BFP were merely investigative, aimed at determining the
existence of facts for the purpose of deciding whether to proceed with an administrative action.
This process can be likened to a public prosecutor’s preliminary investigation, which entails a
determination of whether there is probable cause to believe that the accused is guilty, and
whether a crime has been committed.

The Ruling of this Court in Bautista v. Court of Appeals is analogously applicable to the
case at bar. In that case, we ruled that the preliminary investigation conducted by a public
prosecutor was merely inquisitorial and was definitely not a quasi-judicial proceeding:
A closer scrutiny will show that preliminary investigation is very different from
other quasi-judicial proceedings. A quasi-judicial body has been defined as "an organ of
government other than a court and other than a legislature which affects the rights of
private parties through either adjudication or rule-making."

xxxx

On the other hand, the prosecutor in a preliminary investigation does not

determine the guilt or innocence of the accused. He does not exercise adjudication nor rule-
making functions. Preliminary investigation is merely inquisitorial, and is often the only
means of discovering the persons who may be reasonably charged with a crime and to
enable the fiscal to prepare his complaint or information. It is not a trial of the case on the
merits and has no purpose except that of determining whether a crime has been committed
and whether there is probable cause to believe that the accused is guilty thereof. While the
fiscal makes that determination, he cannot be said to be acting as a quasi-court, for it is the
courts, ultimately, that pass judgment on the accused, not the fiscal.

This principle is further highlighted in MERALCO v. Atilano, in which this Court clearly
reiterated that a public prosecutor, in conducting a preliminary investigation, is not exercising a
quasi-judicial function. In a preliminary investigation, the public prosecutor inspects the
records and premises, investigates the activities of persons or entities coming under the formers’
jurisdiction, or secures or requires the disclosure of information by means of accounts, records,
reports, statements, testimony of witnesses, and production of documents. In contrast, judicial
adjudication signifies the exercise of power and authority to adjudicate upon the rights and
obligations of concerned parties, viz.:
This is reiterated in our ruling in Spouses Balangauan v. Court of Appeals, Special
Nineteenth Division, Cebu City, where we pointed out that a preliminary investigation is
not a quasi-judicial proceeding, and the DOJ is not a quasi-judicial agency exercising a
quasi-judicial function when it reviews the findings of a public prosecutor regarding the
presence of probable cause. A quasi-judicial agency performs adjudicatory functions when
its awards determine the rights of parties, and its decisions have the same effect as a
judgment of a court." This is not the case when a public prosecutor conducts a preliminary
investigation to determine probable cause to file an information against a person charged
with a criminal offense, or when the Secretary of Justice reviews the former's orders or
resolutions" on determination of probable cause.

In Odchigue-Bondoc, we ruled that when the public prosecutor conducts

preliminary investigation, he thereby exercises investigative or inquisitorial powers.
Investigative or inquisitorial powers include the powers of an administrative body to
inspect the records and premises, and investigate the activities of persons or entities
coming under his jurisdiction, or to secure, or to require the disclosure of information by
means of accounts, records, reports, statements, testimony of witnesses, and production of
documents. This power is distinguished from judicial adjudication which signifies the
exercise of power and authority to adjudicate upon the rights and obligations of concerned
parties. Indeed, it is the exercise of investigatory powers which sets a public prosecutor
apart from the court.

Indeed, the public prosecutor exercises investigative powers in the conduct of a

preliminary investigation to determine whether, based on the evidence presented, further action
should be taken through the filing of a criminal complaint in court. Similarly, in the instant case,
the BFP exercised its investigative or fact-finding function to determine whether, based on the
facts and the evidence presented, further administrative action—in the form of a formal charge—
should be taken against petitioner. In neither instance is there in adjudication upon the rights,
obligations, or liabilities of the parties before them.

15 | P a g e
 With the above disquisition, we rule that the dismissal of the BFP Complaint cannot
operate as res judicata. Therefore, forum-shopping is unavailing in this case. (Encinas v. PO1
Agustin and PO1 Caubang, G.R. No. 187317, April 11, 2013)

THE LAW ON PUBLIC OFFICERS

CONDONATION DOCTRINE

The doctrine of condonation is bereft of legal bases. 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, are 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 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 as will be herein elaborated upon – 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,
(Pascual), 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 xxxx proceeded to state that:

The weight of authorities x x x seems to incline toward the rule denying the
right to remove one from office because of misconduct during a prior term, to
which we fully subscribe.

xxx

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.” xxxx More significantly,
the 1987 Constitution strengthened and solidified what has been first proclaimed in the 1973
Constitution by commanding public officers to be accountable to the people at all times:

Section 1. Public office is a public trust. Public officers and employees must at all
times be accountable to the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency and act with patriotism and justice, and lead modest lives.

In Belgica, it was explained that:

xxx The notion of a public trust connotes accountability x x x.

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. 7160,292
otherwise known as the “Local Government Code of 1991” (LGC), which was approved on
October 10 1991, and took effect on January 1, 1992: xxxx

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: xxxx
16 | P a g e
 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: xxx

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:
xxx

xxxx

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, are 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 to apply to administrative
offenses:

The Constitution does not distinguish between which cases executive

clemency may be exercised by the President, with the sole exclusion of
impeachment cases. By the same token, if executive clemency may be exercised only in
criminal cases, it would indeed be unnecessary to provide for the exclusion of impeachment
cases from the coverage of Article VII, Section 19 of the Constitution. Following petitioner's
proposed interpretation, cases of impeachment are automatically excluded inasmuch as the
same do not necessarily involve criminal offenses.

In the same vein, We do not clearly see any valid and convincing reason
why the President cannot grant executive clemency in administrative cases. It
is Our considered view that if the President can grant reprieves, commutations and
pardons, and remit fines and forfeitures in criminal cases, with much more reason can she
grant executive clemency in administrative cases, which are clearly less serious than
criminal offenses.

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 a penalty of
perpetual disqualification from holding public office as an accessory to the penalty of dismissal
from service.

xxx

xxxx 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. xxxx

Equally infirm is Pascual’s proposition that the electorate, when reelecting 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.
xxx 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.
17 | P a g e
 xxx

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 adopted 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. xxx

xxx [T]his Court’s abandonment of the condonation doctrine should be

prospective in application for the reason that judicial decisions applying or interpreting the
laws or the Constitution, until reversed, shall form part of the legal system of the Philippines.
xxx As explained in De Castro v. Judicial Bar Council:

Judicial decisions assume the same authority as a statute itself and, until
authoritatively abandoned, necessarily become, to the extent that they are applicable, the
criteria that must control the actuations, not only of those called upon to abide by them,
but also of those duty-bound to enforce obedience to them.

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.

The landmark case on this matter is People v. Jabinal, wherein it was ruled:

[W]hen a doctrine of this Court is overruled and a different view is adopted, the
new doctrine should be applied prospectively, and should not apply to parties who had
relied on the old doctrine and acted on the faith thereof.

(Carpio-Morales v. Court of Appeals, G.R. Nos. 217126-27, November 10, 2015)

Proper party in a quo warranto case: For a quo warranto petition to be

successful, the private person suing must show a clear right to the contested office.
A nominee for the position of Sandiganbayan Associate Justice does not have a clear
right to said position, and therefore not proper parties to a quo warranto
proceeding. Being included in the list of nominees gives the nominees only the
possibility, but not the certainty, of being appointed to the position, because of the
discretionary power of the President in making judicial appointments.

In Topacio v. Ong, the Court pronounced that:

A quo warranto proceeding is the proper legal remedy to determine the

right or title to the contested public office and to oust the holder from its
enjoyment. It is brought against the person who is alleged to have usurped,
intruded into, or unlawfully held or exercised the public office, and may be
commenced by the Solicitor General or a public prosecutor, as the case may be,
or by any person claiming to be entitled to the public office or position usurped
or unlawfully held or exercised by another.

Nothing is more settled than the principle, which goes back to the 1905
case of Acosta v. Flor, reiterated in the recent 2008 case of Feliciano v. Villasin,
that for a quo warranto petition to be successful, the private person
suing must show a clear right to the contested office. In fact, not
even a mere preferential right to be appointed thereto can lend a
modicum of legal ground to proceed with the action.

Petitioners Aguinaldo, et al., as nominees for the 16th Sandiganbayan Associate Justice,
did not have a clear right to said position, and therefore not proper parties to a quo
warranto proceeding. Being included in the list of nominees had given them only the possibility,
but not the certainty, of being appointed to the position, given the discretionary power of the
President in making judicial appointments. (Aguinaldo v. Aquino, G.R. No. 224302, November
29, 2016)

18 | P a g e
 DUAL POSITIONS AND DOUBLE COMPENSATION

While all other appointive officials in the civil service are allowed to hold
other office or employment in the government during their tenure when such is
allowed by law or by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when expressly authorized by
the Constitution itself. Thus, a DOTC undersecretary cannot be designated
concurrently as OIC of MARINA because 1) Members of the Cabinet, and their
deputies or assistants cannot, unless otherwise provided in the Constitution, hold
any other office or employment during their tenure, and 2) she was not designated
OIC of MARINA in an ex-officio capacity, which is the exception recognized.

The sole issue to be resolved is whether or not the designation of respondent Bautista as
OIC of MARINA, concurrent with the position of DOTC Undersecretary for Maritime Transport
to which she had been appointed, violated the constitutional proscription against dual or
multiple offices for Cabinet Members and their deputies and assistants.

xxx

Resolution of the present controversy hinges on the correct application of Section 13,
Article VII of the 1987 Constitution, which provides:

Sec. 13. The President, Vice-President, the Members of the Cabinet, and
their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure. They
shall not, during said tenure, directly or indirectly practice any other profession, participate
in any business, or be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency, or instrumentality
thereof, including government-owned or controlled corporations or their subsidiaries. They
shall strictly avoid conflict of interest in the conduct of their office.

On the other hand, Section 7, paragraph (2), Article IX-B reads:

Sec. 7. x x x
Unless otherwise allowed by law or the primary functions of his
position, no appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries.

In Civil Liberties Union, a constitutional challenge was brought before this Court to
nullify EO No. 284 issued by then President Corazon C. Aquino on July 25, 1987, which included
Members of the Cabinet, undersecretaries and assistant secretaries in its provisions limiting to
two (2) the positions that appointive officials of the Executive Department may hold in
government and government corporations. Interpreting the above provisions in the light of the
history and times and the conditions and circumstances under which the Constitution was
framed, this Court struck down as unconstitutional said executive issuance, saying that it
actually allows them to hold multiple offices or employment in direct contravention of the
express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from doing
so, unless otherwise provided in the 1987 Constitution itself.

Noting that the prohibition imposed on the President and his official family is all-
embracing, the disqualification was held to be absolute, as the holding of "any other office" is
not qualified by the phrase "in the Government" unlike in Section 13, Article VI prohibiting
Senators and Members of the House of Representatives from holding "any other office or
employment in the Government"; and when compared with other officials and employees such
as members of the armed forces and civil service employees, we concluded thus:
These sweeping, all-embracing prohibitions imposed on the President and his
official family, which prohibitions are not similarly imposed on other public officials or
employees such as the Members of Congress, members of the civil service in general and
members of the armed forces, are proof of the intent of the 1987 Constitution to treat
the President and his official family as a class by itself and to impose upon said
class stricter prohibitions.
xxx
Thus, while all other appointive officials in the civil service are allowed
to hold other office or employment in the government during their tenure
when such is allowed by law or by the primary functions of their positions,
19 | P a g e
 members of the Cabinet, their deputies and assistants may do so only when
expressly authorized by the Constitution itself. In other words, Section 7, Article
IX-B is meant to lay down the general rule applicable to all elective and appointive public
officials and employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice-President, Members of the Cabinet,
their deputies and assistants.
xxxx
Since the evident purpose of the framers of the 1987 Constitution is to impose a
stricter prohibition on the President, Vice-President, members of the Cabinet, their
deputies and assistants with respect to holding multiple offices or employment in the
government during their tenure, the exception to this prohibition must be read with equal
severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be
understood as intended to be a positive and unequivocal negation of the privilege of
holding multiple government offices or employment. Verily, wherever the language used in
the constitution is prohibitory, it is to be understood as intended to be a positive and
unequivocal negation. The phrase "unless otherwise provided in this Constitution" must be
given a literal interpretation to refer only to those particular instances cited in the
Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet
under Section 3, par. (2), Article VII; or acting as President in those instances provided
under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-
officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
[EMPHASIS SUPPLIED.]

Respondent Bautista being then the appointed Undersecretary of DOTC, she was thus
covered by the stricter prohibition under Section 13, Article VII and consequently she cannot
invoke the exception provided in Section 7, paragraph 2, Article IX-B where holding another
office is allowed by law or the primary functions of the position. Neither was she designated OIC
of MARINA in an ex-officio capacity, which is the exception recognized in Civil Liberties Union.

The prohibition against holding dual or multiple offices or employment under Section 13,
Article VII of the 1987 Constitution was held inapplicable to posts occupied by the Executive
officials specified therein, without additional compensation in an ex-officio capacity as provided
by law and as required by the primary functions of said office. The reason is that these posts do
not comprise "any other office" within the contemplation of the constitutional prohibition but
are properly an imposition of additional duties and functions on said officials. Apart from their
bare assertion that respondent Bautista did not receive any compensation when she was OIC of
MARINA, respondents failed to demonstrate clearly that her designation as such OIC was in
an ex-officio capacity as required by the primary functions of her office as DOTC
Undersecretary for Maritime Transport. (Funa v. Executive Secretary Ermita, G.R. No.
184740, February 11, 2010)

An ex officio position, being actually and in legal contemplation part of the

principal office, is not “another office” for purposes of the Constitutional prohibition
on dual positions, and does not entitle an official to additional compensation.

The prohibition against holding dual or multiple offices or employment under Section 13,
Article VII of the 1987 Constitution was held inapplicable to posts occupied by the Executive
officials specified therein, without additional compensation in an ex-officio capacity as provided
by law and as required by the primary functions of said office. The reason is that these posts do
not comprise "any other office" within the contemplation of the constitutional prohibition but
are properly an imposition of additional duties and functions on said officials. Apart from their
bare assertion that respondent Bautista did not receive any compensation when she was OIC of
MARINA, respondents failed to demonstrate clearly that her designation as such OIC was in
an ex-officio capacity as required by the primary functions of her office as DOTC
Undersecretary for Maritime Transport. (Funa v. Executive Secretary Ermita, G.R. No.
184740, February 11, 2010)

PEZA’s insistence that there is legal basis in its grant of per diems to the ex officio
members of its Board does not hold water. The constitutional prohibition explained in Civil
Liberties Union case still stands and this Court finds no reason to revisit the doctrine laid down
therein as said interpretation, to this Court’s mind, is in consonance with what
our Constitution provides.

xxx

20 | P a g e
 x x x In Civil Liberties Union, this Court clarified the prohibition under Section 13,
Article VII of the Constitution [“The President, Vice-President, the Members of the Cabinet, and
their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any
other office or employment during their tenure.”] and emphasized that a public official holding
an ex officio position as provided by law has no right to receive additional compensation for
the ex officio position. This Court ruled:

It bears repeating though that in order that such additional duties or functions may
not transgress the prohibition embodied in Section 13, Article VII of the 1987 Constitution,
such additional duties or functions must be required by the primary
functions of the official concerned, who is to perform the same in an ex-
officio capacity as provided by law, without receiving any additional
compensation therefor.
The ex-officio position being actually and in legal contemplation part of
the principal office, it follows that the official concerned has no right to
receive additional compensation for his services in the said position. The
reason is that these services are already paid for and covered by the
compensation attached to his principal office. It should be obvious that if, say, the
Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member
thereof, he is actually and in legal contemplation performing the primary function of his
principal office in defining policy in monetary and banking matters, which come under the
jurisdiction of his department. For such attendance, therefore, he is not entitled to
collect any extra compensation, whether it be in the form of a per diem or an
honorarium or an allowance, or some other such euphemism. By whatever
name it is designated, such additional compensation is prohibited by the
Constitution. (Italics in the original; emphasis supplied.)
(Philippine Economic Zone Authority [PEZA] v. Commission on Audit, G.R. No. 189767,
July 3, 2012)

Under the Constitution, no Member of a Constitutional Commission shall,

during his tenure, hold any other office or employment. Thus, the Chairman of the
Civil Service Commission (CSC) cannot hold any other office or employment in the
Government during his tenure. He cannot sit as a Director or Trustee of GSIS,
PHILHEALTH, ECC and HDMF, as this will allow him to exercise powers and functions
which are not anymore derived from his position as CSC Chairman.

We proceed to resolve the substantive issue concerning the constitutionality of Duque’s

ex officio designation as member of the Board of Directors or Trustees of the GSIS,
PHILHEALTH, ECC and HDMF.

The underlying principle for the resolution of the present controversy rests on the
correct application of Section 1 and Section 2, Article IX-A of the 1987 Constitution, which
provide:
Section 1. The Constitutional Commissions, which shall be independent, are the
Civil Service Commission, the Commission on Elections, and the Commission on Audit.

Section 2. No Member of a Constitutional Commission shall, during his tenure,

hold any other office or employment. Neither shall he engage in the practice of any
profession or in the active management or control of any business which in any way may be
affected by the functions of his office, nor shall he be financially interested, directly or
indirectly, in any contract with, or in any franchise or privilege granted by the Government,
any of its subdivisions, agencies, or instrumentalities, including government-owned or
controlled corporations or their subsidiaries.

Section 1, Article IX-A of the 1987 Constitution expressly describes all the Constitutional
Commissions as “independent.” x x x To safeguard the independence of these Commissions, the
1987 Constitution, among others, imposes under Section 2, Article IX-A of the Constitution
certain inhibitions and disqualifications upon the Chairmen and members to strengthen their
integrity, to wit:

xxx

The issue herein involves the first disqualification abovementioned, which is the
disqualification from holding any other office or employment during Duque’s tenure as
Chairman of the CSC. The Court finds it imperative to interpret this disqualification in relation
to Section 7, paragraph (2), Article IX-B of the Constitution and the Court’s pronouncement in
Civil Liberties Union v. Executive Secretary.

21 | P a g e
 Section 7, paragraph (2), Article IX-B reads:

Section 7. x x x

Unless otherwise allowed by law or the primary functions of his

position, no appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries.

In Funa v. Ermita, where petitioner challenged the concurrent appointment of Elena H.

Bautista as Undersecretary of the Department of Transportation and Communication and as
Officer-in-Charge of the Maritime Industry Authority, the Court reiterated the pronouncement
in Civil Liberties Union v. The Executive Secretary on the intent of the Framers on the
foregoing provision of the 1987 Constitution, to wit:
Thus, while all other appointive officials in the civil service are allowed to hold
other office or employment in the government during their tenure when such is allowed by
law or by the primary functions of their positions, members of the Cabinet, their deputies
and assistants may do so only when expressly authorized by the Constitution itself. In other
words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective
and appointive public officials and employees, while Section 13, Article VII is meant to be
the exception applicable only to the President, the Vice-President, Members of the Cabinet,
their deputies and assistants.

xxxx

Since the evident purpose of the framers of the 1987 Constitution is to impose a
stricter prohibition on the President, Vice-President, members of the Cabinet, their
deputies and assistants with respect to holding multiple offices or employment in the
government during their tenure, the exception to this prohibition must be read with equal
severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be
understood as intended to be a positive and unequivocal negation of the privilege of
holding multiple government offices or employment. Verily, wherever the language used in
the constitution is prohibitory, it is to be understood as intended to be a positive and
unequivocal negation. The phrase "unless otherwise provided in this Constitution" must be
given a literal interpretation to refer only to those particular instances cited in the
Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet
under Section 3, par. (2), Article VII; or acting as President in those instances provided
under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio
member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

Being an appointive public official who does not occupy a Cabinet position (i.e.,
President, the Vice-President, Members of the Cabinet, their deputies and assistants), Duque
was thus covered by the general rule enunciated under Section 7, paragraph (2), Article IX-B. He
can hold any other office or employment in the Government during his tenure if such holding is
allowed by law or by the primary functions of his position.

Respondents insist that Duque’s ex officio designation as member of the governing

Boards of the GSIS, PHILHEALTH, ECC and HDMF is allowed by the primary functions of his
position as the CSC Chairman. x x x

As to the meaning of ex officio, the Court has decreed in Civil Liberties Union v.
Executive Secretary that –
x x x x The term ex officio means “from office; by virtue of office.” It refers to an
“authority derived from official character merely, not expressly conferred upon the
individual character, but rather annexed to the official position.” Ex officio likewise denotes
an “act done in an official character, or as a consequence of office, and without any other
appointment or authority other than that conferred by the office.” An ex officio member of
a board is one who is a member by virtue of his title to a certain office, and without further
warrant or appointment. x x x

xxxx

The ex officio position being actually and in legal contemplation part of the
principal office, it follows that the official concerned has no right to receive additional
compensation for his services in the said position. The reason is that these services are
already paid for and covered by the compensation attached to his principal office. x x x

xxx

Section 14, Chapter 3, Title I-A, Book V of EO 292 is clear that the CSC Chairman’s
membership in a governing body is dependent on the condition that the functions of the

22 | P a g e
government entity where he will sit as its Board member must affect the career development,
employment status, rights, privileges, and welfare of government officials and employees. Based
on this, the Court finds no irregularity in Section 14, Chapter 3, Title I-A, Book V of EO 292
because matters affecting the career development, rights and welfare of government employees
are among the primary functions of the CSC and are consequently exercised through its
Chairman. The CSC Chairman’s membership therein must, therefore, be considered to be
derived from his position as such. Accordingly, the constitutionality of Section 14, Chapter 3,
Title I-A, Book V of EO 292 is upheld.

However, there is a need to determine further whether Duque’s designation as Board

member of the GSIS, PHILHEALTH, ECC and HDMF is in accordance with the 1987
Constitution and the condition laid down in Section 14, Chapter 3, Title I-A, Book V of EO 292. x
xx

xxx

The GSIS, PHILHEALTH, ECC and HDMF are vested by their respective charters with
various powers and functions to carry out the purposes for which they were created. While
powers and functions associated with appointments, compensation and benefits affect the
career development, employment status, rights, privileges, and welfare of government officials
and employees, the GSIS, PHILHEALTH, ECC and HDMF are also tasked to perform other
corporate powers and functions that are not personnel-related. All of these powers and
functions, whether personnel-related or not, are carried out and exercised by the respective
Boards of the GSIS, PHILHEALTH, ECC and HDMF. Hence, when the CSC Chairman sits as a
member of the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF, he may exercise
these powers and functions, which are not anymore derived from his position as CSC Chairman,
such as imposing interest on unpaid or unremitted contributions, issuing guidelines for the
accreditation of health care providers, or approving restructuring proposals in the payment of
unpaid loan amortizations. The Court also notes that Duque’s designation as member of the
governing Boards of the GSIS, PHILHEALTH, ECC and HDMF entitles him to receive per diem,
a form of additional compensation that is disallowed by the concept of an ex officio position by
virtue of its clear contravention of the proscription set by Section 2, Article IX-A of the 1987
Constitution. This situation goes against the principle behind an ex officio position, and must,
therefore, be held unconstitutional. (Funa v. Chairman, Civil Service Commission, G.R. No.
191672, November 25, 2014)

Under Section 17, Article VII of the Constitution, the President exercises
control over all government offices in the Executive Branch. The GSIS, PHILHEALTH,
ECC and HDMF are offices under the Executive Department, and their respective
governing Boards are under the control of the President. Thus, Chairman of the Civil
Service Commission cannot sit as a Director or Trustee of GSIS, PHILHEALTH, ECC
and HDMF, as this will impair the independence of the CSC.

Apart from violating the prohibition against holding multiple offices, Duque’s
designation as member of the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF
impairs the independence of the CSC. Under Section 17, Article VII of the Constitution, the
President exercises control over all government offices in the Executive Branch. An office that is
legally not under the control of the President is not part of the Executive Branch. The Court has
aptly explained in Rufino v. Endriga:
xxx

Since the President exercises control over “all the executive departments, bureaus,
and offices,” the President necessarily exercises control over the CCP which is an office in
the Executive branch. In mandating that the President “shall have control of all executive . .
. offices,” x x x

The President’s power of control applies to the acts or decisions of all

officers in the Executive branch. This is true whether such officers are
appointed by the President or by heads of departments, agencies,
commissions, or boards. The power of control means the power to revise or
reverse the acts or decisions of a subordinate officer involving the exercise of
discretion.

In short, the President sits at the apex of the Executive branch, and exercises
“control of all the executive departments, bureaus, and offices.” There can be no instance
under the Constitution where an officer of the Executive branch is outside the control of the
President. The Executive branch is unitary since there is only one President vested with
executive power exercising control over the entire Executive branch. Any office in the

23 | P a g e
 Executive branch that is not under the control of the President is a lost command whose
existence is without any legal or constitutional basis. (Emphasis supplied)

As provided in their respective charters, PHILHEALTH and ECC have the status of a
government corporation and are deemed attached to the Department of Health and the
Department of Labor, respectively. On the other hand, the GSIS and HDMF fall under the Office
of the President. The corporate powers of the GSIS, PHILHEALTH, ECC and HDMF are
exercised through their governing Boards, members of which are all appointed by the President
of the Philippines. Undoubtedly, the GSIS, PHILHEALTH, ECC and HDMF and the members of
their respective governing Boards are under the control of the President. As such, the CSC
Chairman cannot be a member of a government entity that is under the control of the President
without impairing the independence vested in the CSC by the 1987 Constitution. (Funa v.
Chairman, Civil Service Commission, G.R. No. 191672, November 25, 2014)

MIDNIGHT APPOINTEES AND APPOINTMENT BAN

The prohibition against presidential appointments two months immediately

before the next presidential elections and up to the end of his term, under Section
15, Article VII does not extend to appointments in the Judiciary

Two constitutional provisions are seemingly in conflict.

The first, Section 15, Article VII (Executive Department), provides:

Section 15. 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.

The other, Section 4 (1), Article VIII (Judicial Department), states:

Section 4. (1). The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five,
or seven Members. Any vacancy shall be filled within ninety days from the occurrence
thereof.

In the consolidated petitions, the petitioners, x x x submit that the incumbent President
can appoint the successor of Chief Justice Puno upon his retirement on May 17, 2010, on the
ground that the prohibition against presidential appointments under Section 15, Article VII does
not extend to appointments in the Judiciary.

The Court agrees with the submission.

First. x x x

The Constitution consists of 18 Articles, three of which embody the allocation of the
awesome powers of government among the three great departments, the Legislative (Article VI),
the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a
true recognition of the principle of separation of powers that underlies the political structure, x x
x.

xxx

Had the framers intended to extend the prohibition contained in Section 15, Article VII
to the appointment of Members of the Supreme Court, they could have explicitly done so. They
could not have ignored the meticulous ordering of the provisions. They would have easily and
surely written the prohibition made explicit in Section 15, Article VII as being equally applicable
to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section
4 (1), Article VIII. That such specification was not done only reveals that the prohibition against
the President or Acting President making appointments within two months before the next
presidential elections and up to the end of the President's or Acting President's term does not
refer to the Members of the Supreme Court.

xxx

24 | P a g e
 Second. Section 15, Article VII does not apply as well to all other appointments in the
Judiciary.

There is no question that one of the reasons underlying the adoption of Section 15 as part
of Article VII was to eliminate midnight appointments from being made by an outgoing Chief
Executive in the mold of the appointments dealt with in the leading case of Aytona v. Castillo. x
xx

xxx

Section 15, Article VII has a broader scope than the Aytona ruling. It may not
unreasonably be deemed to contemplate not only "midnight" appointments - those made
obviously for partisan reasons as shown by their number and the time of their making - but also
appointments presumed made for the purpose of influencing the outcome of the Presidential
election.

xxx

Given the background and rationale for the prohibition in Section 15, Article VII, we
have no doubt that the Constitutional Commission confined the prohibition to appointments
made in the Executive Department. The framers did not need to extend the prohibition to
appointments in the Judiciary, because their establishment of the JBC and their subjecting the
nomination and screening of candidates for judicial positions to the unhurried and deliberate
prior process of the JBC ensured that there would no longer be midnight appointments to the
Judiciary. (De Castro v. Judicial and Bar Council, G.R. No. 191002, March 17, 2010)

The constitutional prohibition on midnight appointments only applies to

presidential appointments. It does not apply to appointments made by local chief
executives.

The Province claims that Marco was a midnight appointee. Moreover, he was among
those appointed "en masse" by Governor Ong before the end of her term. Thus, the Civil Service
Commission should have disapproved Marco’s appointment.

A midnight appointment "refers to those appointments made within two months

immediately prior to the next presidential election." Midnight appointments are prohibited
under Article VII, Section 15 of the Constitution:
SECTION 15. 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.

Midnight appointments are prohibited because an outgoing President is "duty bound to

prepare for the orderly transfer of authority to the incoming President, and he [or she] should
not do acts which he [or she] ought to know, would embarrass or obstruct the policies of his [or
her] successor."115 An outgoing President should not "deprive the new administration of an
opportunity to make the corresponding appointments."

However, the constitutional prohibition on midnight appointments only applies to

presidential appointments. It does not apply to appointments made by local chief executives.

In De Rama v. Court of Appeals, Mayor Conrado L. de Rama (Mayor de Rama) of

Pagbilao, Quezon sought to recall 14 appointments made by former Mayor Ma. Evelyn S. Abeja
on the sole ground that they were midnight appointments. The Civil Service Commission denied
Mayor de Rama’s request, ruling that the prohibition on midnight appointments only applies to
outgoing Presidents. On appeal, the Court of Appeals affirmed the Civil Service Commission’s
decision.

This court agreed with the Civil Service Commission and the Court of Appeals. In
denying Mayor de Rama’s petition for review on certiorari, this court said that the prohibition
on midnight appointments "applies only to presidential appointments." This court noted that
"there is no law that prohibits local elective officials from making appointments during the last
days of his or her tenure."

Nonetheless, the Civil Service Commission, as the central personnel agency of the
Government, may "establish rules and regulations to promote efficiency and professionalism in
the civil service." Although it conceded that no law prohibits local elective officials from making
appointments during the last days of their tenure, this court in Nazareno upheld Civil Service
25 | P a g e
Commission Resolution No. 010988, which prohibited local elective officials from making
appointments immediately before and after elections. In addition, Resolution No. 010988
prohibited "mass appointments," or those "issued in bulk or in large number after the elections
by an outgoing local chief executive and there is no apparent need for their immediate issuance."
xxx

This court said that the rationale behind Resolution No. 010988 "is not difficult to see":
Appointments are banned prior to the elections to ensure that partisan loyalties
will not be a factor in the appointment process, and to prevent incumbents from gaining
any undue advantage during the elections. x x x

xxx

We note, however, that Resolution No. 010988 — the Resolution effective when Mayor
Remollo issued the appointments in Nazareno— was superseded by Resolution No. 030918
dated August 28, 2003. Resolution No. 030918 on "midnight appointments" by local chief
executives was effective at the time Governor Ong issued the disputed appointments. Resolution
No. 030918 states, in part:
xxx

2. Action on Appointments issued by Elective and Appointive Officials After the Elections Up
to June 30

2.1. All appointments issued by elective appointing officials after elections up to June 30
shall be disapproved, except if the appointee is fully qualified for the position and had undergone
regular screening processes before the Election Ban as shown in the Promotion and Selection Board
(PSB) report or minutes of meeting.

xxx

This Resolution supersedes CSC Resolution No. 010988 dated 4 June 2001 and shall take
effect fifteen (15) days after its publication in a newspaper of general circulation.

Since Resolution No. 030918 was effective at the time Governor Ong issued the 26
appointments, we must decide this case based on Resolution No. 030918. Nazareno is not
applicable, as it was decided based on Resolution No. 0109888.

We agree with the Civil Service Commission and the Court of Appeals that Governor Ong
issued Marco’s appointment in accordance with Resolution No. 030918. Although his
appointment was made five (5) days before the end of Governor Ong's term, Marco was fully
qualified for the position and had undergone regular screening processes before the election
ban. x x x Absent a showing of grave abuse of discretion, this court will not disturb the findings
of fact of the Civil Service Commission, especially since it has acquired "specialized knowledge
and expertise" in the field of civil service law.

Assuming without conceding that Governor Ong's 26 appointments were issued in bulk,
this per se does not invalidate the appointments. Unlike Resolution No. 010988, Resolution No.
030918 does not prohibit appointments that are large in number. x x x

Marco's appointment was valid. x x x

Considering that Marco had already accepted his appointment by the time the Province
prevented him from assuming his office, his appointment remains effective up to the present.
(Provincial Government of Aurora v. Marco, G.R. No. 202331, April 22, 2015)

DE FACTO OFFICER

One who is in possession of an office, and is discharging its duties under color
of authority, meaning an authority derived from an appointment, however irregular
or informal, is a de facto officer. Because Duque as CSC Chairman did not validly
hold office as Director or Trustee of the GSIS, PHILHEALTH, ECC and HDMF, he was
a de facto officer. He is entitled to emoluments for actual services rendered.

In view of the application of the prohibition under Section 2, Article IX-A of the 1987
Constitution, Duque did not validly hold office as Director or Trustee of the GSIS,
PHILHEALTH, ECC and HDMF concurrently with his position of CSC Chairman. Accordingly,
he was not to be considered as a de jure officer while he served his term as Director or Trustee of
these GOCCs. A de jure officer is one who is deemed, in all respects, legally appointed and
qualified and whose term of office has not expired.

26 | P a g e
 That notwithstanding, Duque was a de facto officer during his tenure as a Director or
Trustee of the GSIS, PHILHEALTH, ECC and HDMF. In Civil Liberties Union v. Executive
Secretary, the Court has said:
During their tenure in the questioned positions, respondents may be considered de
facto officers and as such entitled to emoluments for actual services rendered. This doctrine
is, undoubtedly, supported on equitable grounds since it seems unjust that the public
should benefit by the services of an officer de facto and then be freed from all liability to pay
any one for such services. Any per diem, allowances or other emoluments received by the
respondents by virtue of actual services rendered in the questioned positions may therefore
be retained by them.

(Funa v. Chairman, Civil Service Commission, G.R. No. 191672, November 25,
2014)

The actions of a de facto officer are valid for all purposes as those of a de jure
officer, in so far as the public or third persons are concerned. Thus, as a de facto
officer, the CSC Chairman’s official actions as a Director or Trustee of the GSIS,
PHILHEAL TH, ECC and HDMF, were presumed valid, binding and effective.

A de facto officer is one who derives his appointment from one having colorable
authority to appoint, if the office is an appointive office, and whose appointment is valid on its
face. He may also be one who is in possession of an office, and is discharging its duties under
color of authority, by which is meant authority derived from an appointment, however irregular
or informal, so that the incumbent is not a mere volunteer. Consequently, the acts of the de facto
officer are just as valid for all purposes as those of a de jure officer, in so far as the public or
third persons who are interested therein are concerned.

In order to be clear, therefore, the Court holds that all official actions of Duque as a
Director or Trustee of the GSIS, PHILHEAL TH, ECC and HDMF, were presumed valid, binding
and effective as if he was the officer legally appointed and qualified for the office. This
clarification is necessary in order to protect the sanctity and integrity of the dealings by the
public with persons whose ostensible authority emanates from the State. (Funa v. Chairman,
Civil Service Commission, G.R. No. 191672, November 25, 2014)

NEXT-IN RANK RULE

The next-in-rank rule is a rule of preference on who to consider for

promotion. It does not give employees next in rank a vested right to the position
next higher to theirs should that position become vacant. Appointment is a
discretionary power of the appointing authority

Petitioner contends, however, that he is a qualified next-in-rank who was bypassed for
appointment to the position of City Government Department Head III. Thus, respondent’s
appointment is void notwithstanding his possession of the qualifications for the position.

In promotions, the appointing authority must automatically consider the employees next
in rank as candidates for appointment. Section 21, paragraphs (2) and (3) of the Civil Service
Law provide for the next-in-rank rule:
SEC. 21. Recruitment and Selection of Employees. — . . .

(2)When a vacancy occurs in a position in the first level of the Career Service as defined in
Section 6, the employees in the department who occupy the next lower positions in the occupational
group under which the vacant position is classified, and in other functionally related occupational
groups and who are competent, qualified and with the appropriate civil service eligibility shall be
considered for promotion.

(3)When a vacancy occurs in a position in the second level of the Career Service as defined
in Section 8, the employees in the government service who occupy the next lower positions in the
occupational group under which the vacant position is classified and in other functionally related
occupational groups and who are competent, qualified and with the appropriate civil service
eligibility shall be considered for promotion.

"Promotion is the advancement of an employee from one position to another with an

increase in duties and responsibilities as authorized by law, and usually accompanied by an
increase in salary." Employees next in rank are those "who occupy the next lower positions in
the occupational group under which the vacant position is classified, and in other functionally

27 | P a g e
related occupational groups and who are competent, qualified and with the appropriate civil
service eligibility."

The reason behind the next-in-rank rule is to maintain the policy of merit and rewards in
the civil service. x x x

Still, the next-in-rank rule is a rule of preference on who to consider for promotion. The
rule does not give employees next in rank a vested right to the position next higher to theirs
should that position become vacant. Appointment is a discretionary power of the appointing
authority. So long as the appointee possesses the qualifications required by law, the
appointment is valid.

Who to appoint is "a political question involving considerations of wisdom which only
the appointing authority can decide." For the betterment of government service, the appointing
authority may consider other "abstract criteria[,]" aside from the minimum qualifications set by
law in making appointments. As this court explained in Cortez v. Civil Service Commission:

xxx
As long as the appointee possesses the minimum qualifications prescribed by law
or regulations, there is no question that his appointment must be respected by the Civil
Service Commission even if it be proved that there are others with superior credentials.

(Abad v. Dela Cruz, G.R. No. 207422, March 18, 2015)

PETITION FOR QUO WARRANTO

The suing private individual must show a clear right to the contested office;
an acting appointee has no cause of action for quo warranto against the new
appointee

Quo warranto is a remedy to try disputes with respect to the title to a public office.
Generally, quo warranto proceedings are commenced by the Government as the proper party-
plaintiff. However, under Section 5, Rule 66 of the Rules of Court, an individual may commence
such action if he claims to be entitled to the public office allegedly usurped by another. We stress
that the person instituting the quo warranto proceedings in his own behalf must show that he is
entitled to the office in dispute; otherwise, the action may be dismissed at any stage.
Emphatically, Section 6, Rule 66 of the same Rules requires the petitioner to state in the
petition his right to the public office and the respondent's unlawful possession of the disputed
position.

As early as 1905, the Court already held that for a petition for quo warranto to be
successful, the suing private individual must show a clear right to the contested office. His
failure to establish this right warrants the dismissal of the suit for lack of cause of action; it is
not even necessary to pass upon the right of the defendant who, by virtue of his appointment,
continues in the undisturbed possession of his office.

Since the petitioner merely holds an acting appointment (and an expired one at that), he
clearly does not have a cause of action to maintain the present petition. The essence of an acting
appointment is its temporariness and its consequent revocability at any time by the appointing
authority. The petitioner in a quo warranto proceeding who seeks reinstatement to an office, on
the ground of usurpation or illegal deprivation, must prove his clear right to the office for his
suit to succeed; otherwise, his petition must fail. (General v. Urro, G.R. No. 191560, March 29,
2011)

NEPOTISM

The prohibition against nepotism applies to appointments made by a group of

individuals acting as a body. A relative within the third civil degree of consanguinity
or affinity of a member of the body that is the appointing authority (such as the Civil
Service Commission) cannot be appointed by such body.

Nepotism is defined as an appointment issued in favor of a relative within the third civil
degree of consanguinity or affinity of any of the following: (1) appointing authority; (2)
28 | P a g e
recommending authority; (3) chief of the bureau or office; and (4) person exercising immediate
supervision over the appointee. Here, it is undisputed that respondent Cortes is a relative of
Commissioner Mallari in the first degree of consanguinity, as in fact Cortes is the daughter of
Commissioner Mallari.

By way of exception, the following shall not be covered by the prohibition: (1) persons
employed in a confidential capacity; (2) teachers; (3) physicians; and (4) members of the Armed
Forces of the Philippines. In the present case, however, the appointment of respondent Cortes as
IO V in the CHR does not fall to any of the exemptions provided by law.

In her defense, respondent Cortes merely raises the argument that the appointing
authority referred to in Section 59 of the Administrative Code is the Commission En Banc and
not the individual Commissioners who compose it.

The purpose of Section 59 on the rule against nepotism is to take out the discretion of the
appointing and recommending authority on the matter of appointing or recommending for
appointment a relative. The rule insures the objectivity of the appointing or recommending
official by preventing that objectivity from being in fact tested. Clearly, the prohibition against
nepotism is intended to apply to natural persons. It is one pernicious evil impeding the civil
service and the efficiency of its personnel.

x x x To rule that the prohibition applies only to the Commission, and not to the
individual members who compose it, will render the prohibition meaningless. Apparently, the
Commission En Banc, which is a body created by fiction of law, can never have relatives to speak
of.

Indeed, it is absurd to declare that the prohibitive veil on nepotism does not include
appointments made by a group of individuals acting as a body. What cannot be done directly
cannot be done indirectly. x x x

In the present case, respondent Cortes’ appointment as IO V in the CHR by the

Commission En Banc, where his father is a member, is covered by the prohibition.
Commissioner Mallari’s abstention from voting did not cure the nepotistic character of the
appointment because the evil sought to be avoided by the prohibition still exists. His mere
presence during the deliberation for the appointment of IO V created an impression of influence
and cast doubt on the impartiality and neutrality of the Commission En Banc. (Civil Service
Commission v. Cortes, G.R. No. 200103, April 23, 2014)

LIABILITY OF PUBLIC OFFICERS

Three-fold responsibility rule: A public officer may be held civilly, criminally,

and administratively liable for a wrongful doing.

The same wrongful act committed by the public officer can subject him to civil,
administrative and criminal liabilities. We held in Tecson v. Sandiganbayan:

[I]t is a basic principle of the law on public officers that a public official or employee is
under a three-fold responsibility for violation of duty or for a wrongful act or omission. This
simply means that a public officer may be held civilly, criminally, and administratively liable for
a wrongful doing. Thus, if such violation or wrongful act results in damages to an individual, the
public officer may be held civilly liable to reimburse the injured party. If the law violated
attaches a penal sanction, the erring officer may be punished criminally. Finally, such violation
may also lead to suspension, removal from office, or other administrative sanctions. This
administrative liability is separate and distinct from the penal and civil liabilities. (Flores v.
Montemayor, G.R. No. 170146, June 8, 2011)

Dismissal of a criminal action does not foreclose institution of an

administrative proceeding.

Dismissal of a criminal action does not foreclose institution of an administrative

proceeding against the same respondent, nor carry with it the relief from administrative
liability. Res judicata did not set in because there is no identity of causes of action. Moreover,
the decision of the Ombudsman dismissing the criminal complaint cannot be considered a valid

29 | P a g e
and final judgment. On the criminal complaint, the Ombudsman only had the power to
investigate and file the appropriate case before the Sandiganbayan.

In the analogous case of Montemayor v. Bundalian, this Court ruled:

Lastly, we cannot sustain petitioners’ stance that the dismissal

of similar charges against him before the Ombudsman rendered the
administrative case against him before the PCAGC moot and
academic. To be sure, the decision of the Ombudsman does not
operate as res judicata in the PCAGC case subject of this review. The
doctrine of res judicata applies only to judicial or quasi-judicial proceedings, not
to the exercise of administrative powers. Petitioner was investigated by the
Ombudsman for his possible criminal liability for the acquisition of
the Burbank property in violation of the Anti-Graft and Corrupt Practices Act and
the Revised Penal Code. For the same alleged misconduct, petitioner, as a
presidential appointee, was investigated by the PCAGC by virtue of the
administrative power and control of the President over him. As the PCAGCs
investigation of petitioner was administrative in nature, the doctrine of res
judicata finds no application in the case at bar. (Emphasis supplied.)

(Flores v. Montemayor, G.R. No. 170146, June 8, 2011)

The Arias Doctrine: Heads of offices have to rely to a reasonable extent on

their subordinates and on the good faith of those who prepare bids, purchase
supplies, or enter into negotiations. There should be other grounds than the mere
signature or approval appearing on a voucher to sustain a conspiracy charge and
conviction. Even if the head of office erred in his assessment of the extrinsic and
intrinsic validity of the documents presented to him for endorsement, his act is all
the same imbued with good faith because the otherwise faulty reliance upon his
subordinates.

In the seminal case of Arias v. Sandiganbayan involving the prosecution and conviction
of a public official for violation of RA No. 3019, the Court ruled:

We would be setting a bad precedent if a head of office plagued by all too common
problems - dishonest or negligent subordinates, overwork, multiple assignments or
positions, or plain incompetence - is suddenly swept into a conspiracy conviction simply
because he did not personally examine every single detail, painstakingly trace every step
from inception, and investigate the motives of every person involved in a transaction before
affixing his signature as the final approving authority.

xxxx

We can, in retrospect, argue that Arias should have probed records, inspected
documents, received procedures, and questioned persons. It is doubtful if any auditor for a
fairly sized office could personally do all these things in all vouchers presented for his
signature. The Court would be asking for the impossible. All heads of offices have to rely to
a reasonable extent on their subordinates and on the good faith of those who prepare bids,
purchase supplies, or enter into negotiations. x x x There has to be some added reason why
he should examine each voucher in such detail. Any executive head of even small
government agencies or commissions can attest to the volume of papers that must be
signed. There are hundreds of documents, letters, memoranda, vouchers, and supporting
papers that routinely pass through his hands. The number in bigger offices or departments
is even more appalling.

There should be other grounds than the mere signature or approval appearing on a
voucher to sustain a conspiracy charge and conviction.

The Court has since applied the Arias ruling to determine not only criminal, civil and
administrative liability, but even the existence of probable cause to file an information in the
context of an allegation of conspiracy.

In Siztoza v. Desierto, involving the Ombudsman’s determination of probable cause for

violation of RA No. 3019, the Court expounded on the reach of Arias, thus:

The fact that Sistoza had knowledge of the status of the contractor as being only
the second lowest bidder does not ipso facto characterize his act of reliance as recklessly
imprudent xxx. Albeit misplaced, reliance in good faith by a head of office on a
30 | P a g e
 subordinate upon whom the primary responsibility rests negates an imputation of
conspiracy by gross inexcusable negligence to commit graft and corruption. As things
stand, Sistoza is presumed to have acted honestly and sincerely when he depended upon
responsible assurances that everything was aboveboard since it is not always the case that
second best bidders in terms of price are automatically disqualified from the award
considering that the PBAC reserves the authority to select the best bid not only in terms of
the price offered but other factors as well. x x x

Verily, even if petitioner erred in his assessment of the extrinsic and

intrinsic validity of the documents presented to him for endorsement, his act
is all the same imbued with good faith because the otherwise faulty reliance
upon his subordinates, who were primarily in charge of the task, falls within
parameters of tolerable judgment and permissible margins of error. Stated
differently, granting that there were flaws in the bidding procedures, x x x there was no
cause for Sistoza to x x x investigate further since neither the defects in the process
nor the unfairness or injustice in the actions of his subalterns are definite,
certain, patent and palpable from a perusal of the supporting documents.

In Leycano, Jr. v. Commission on Audit, the Court clarified that for one to successfully
invoke Arias, the public official must then be acting in his capacity as head of office. In Cruz v.
Sandiganbayan, where the Court sustained the petitioner’s conviction for violation of Section
3(e) of RA No. 3019, it observed that the fact that "the checks issued as payment for construction
materials purchased by the municipality were not made payable to the supplier x x x but to
petitioner himself even as the disbursement vouchers attached thereto were in the name of the
supplier" constitute an "added reason" for the petitioner to further examine the documents.
(Jaca v. People, G.R. No. 166967, January 28, 2013)

Exception to the Arias Doctrine: If there are peculiar circumstances that

should have prompted a head of office to exercise a higher degree of
circumspection, he must go beyond what his subordinates had prepared or
recommended.

Perez invokes the Arias doctrine which states that "[a]ll heads of offices have to rely to a
reasonable extent on their subordinates and on the good faith of those who prepare bids,
purchase supplies, or enter into negotiations." He contends that he merely relied on the
vouchers and reports prepared by his subordinates and released the payments in good faith.

To clarify, the Arias doctrine is not an absolute rule. It is not a magic cloak that can be
used as a cover by a public officer to conceal himself in the shadows of his subordinates and
necessarily escape liability. Thus, this ruling cannot be applied to exculpate the petitioners in
view of the peculiar circumstances in this case which should have prompted them, as heads of
offices, to exercise a higher degree of circumspection and, necessarily, go beyond what their
subordinates had prepared.

The case of Cruz v. Sandiganbayan carved out an exception to the Arias doctrine, stating
that:
Unlike in Arias, however, there exists in the present case an exceptional
circumstance which should have prodded petitioner, if he were out to protect the interest of
the municipality he swore to serve, to be curious and go beyond what his subordinates
prepared or recommended. In fine, the added reason contemplated in Arias which would
have put petitioner on his guard and examine the check/s and vouchers with some degree
of circumspection before signing the same was obtaining in this case.

In the case at bench, Perez should have placed himself on guard when the documents
and vouchers given to him by his subordinates did not indicate the retention money required by
P.D. No. 1594. Moreover, when he personally inspected the construction site of PAL Boat, he
should have noticed the financial weakness of the contractor and the defective works.
Deplorably, Perez kept mum and chose to continue causing undue injury to the government. No
other conclusion can be inferred other than his manifest partiality towards PAL Boat. (Rivera v.
People, G.R. No. 156577, December 3, 2014)

The Arias Doctrine will not apply if the documents in question bore
irregularities too evident too ignore. In such case, the head of office must exercise a
higher degree of circumspection, and go beyond what their subordinates had
prepared.

31 | P a g e
 [T]he ruling in Arias v. Sandiganbayan (Arias) cannot be applied to exculpate
petitioners in view of the peculiar circumstances in this case which should have prompted them
to exercise a higher degree of circumspection, and consequently, go beyond what their
subordinates had prepared. In particular, the tampered dates on some of the RIVs, the
incomplete certification by GSC SAO Mateo on the date of receipt of the CCIE items, the missing
details on the Reports of Public Property Purchased and the fact that sixteen checks all dated
January 15, 1992 were payable to PNP SSS should have aroused a reasonable sense of suspicion
or curiosity on their part if only to determine that they were not approving a fraudulent
transaction. In a similar case where the documents in question bore irregularities too evident to
ignore, the Court in Cruz v. Sandiganbayan carved out an exception to the Arias doctrine and as
such, held:
Unlike in Arias, however, there exists in the present case an exceptional
circumstance which should have prodded petitioner, if he were out to protect the interest of
the municipality he swore to serve, to be curious and go beyond what his subordinates
prepared or recommended. In fine, the added reason contemplated in Arias which would
have put petitioner on his guard and examine the check/s and vouchers with some degree
of circumspection before signing the same was obtaining in this case.

(Lihaylihay v. People, G.R. No. 191219, July 31, 2013)

The Arias Doctrine applies only to heads of offices, not to public officials
whose duty is to examine each voucher to ascertain whether it was proper to sign it.

Petitioners cannot hide behind our declaration in Arias v. Sandiganbayan that heads of
offices cannot be convicted of a conspiracy charge just because they did not personally examine
every single detail before they, as the final approving authorities, affixed their signatures to
certain documents. The Court explained in that case that conspiracy was not adequately proven,
contrary to the case at bar in which petitioners’ unity of purpose and unity in the execution of an
unlawful objective were sufficiently established. Also, unlike in Arias, where there were no
reasons for the heads of offices to further examine each voucher in detail, petitioners herein, by
virtue of the duty given to them by law as well as by rules and regulations, had the responsibility
to examine each voucher to ascertain whether it was proper to sign it in order to approve and
disburse the cash advance. (Bacasmas v. Sandiganbayan, G.R. No. 189343, July 10, 2013)

The Arias Doctrine applies only where the head of an office is being held to
answer for his act of relying on the acts of his subordinate. It is not applicable when
the head of an office is being held liable for relying on other independent offices.

The Arias ruling squarely applies where, in the performance of his official duties, the
head of an office is being held to answer for his act of relying on the acts of his subordinate. In
its Memorandum,100 the prosecution submitted that the petitioners were the heads of the three
"independent" offices at the time material to the controversy, i.e., the Office of the City
Treasurer, the Office of the City Accountant and the Office of the City Administrator. On this
point alone, Gaviola’s reliance on Arias already stands on shaky grounds. (Jaca v. People, G.R.
No. 166967, January 28, 2013)

MISCONDUCT

If a nexus between the public official’s acts and functions is established, such
act is properly referred to as misconduct; otherwise, the act may be considered
conduct prejudicial to the best interest of the service.

Both the Ombudsman and Dr. Apolonio concede that the latter appropriated funds
intended for the workshop to a purpose other than the one stated and approved by the NBDB.
Therefore, the only issue to be determined is whether the purchase of the gift cheques
constitutes a grave misconduct or, as found by the CA, conduct prejudicial to the best interest of
the service. As already stated, we find Dr. Apolonio guilty of neither, and instead hold her liable
for simple misconduct.

In Civil Service Commission v. Ledesma, the Court defined misconduct as "a

transgression of some established and definite rule of action, more particularly, unlawful
behavior or gross negligence by a public officer." We further stated that misconduct becomes

32 | P a g e
grave if it "involves any of the additional elements of corruption, willful intent to violate the law
or to disregard established rules, which must be established by substantial evidence." Otherwise,
the misconduct is only simple. Therefore, "[a] person charged with grave misconduct may be
held liable for simple misconduct if the misconduct does not involve any of the additional
elements to qualify the misconduct as grave."

xxx

Further, in Monico K. Imperial, Jr. v. Government Service Insurance System, the Court
considered Imperial’s act of approving the salary loans of eight employees "who lacked the
necessary contribution requirements" under GSIS Policy and Procedural Guidelines No. 153-99
as simple misconduct. It refused to categorize the act as grave misconduct because no
substantial evidence was adduced to prove the elements of "corruption," "clear intent to violate
the law" or "flagrant disregard of established rule" that must be present to characterize the
misconduct as grave.

As in the cases of Civil Service Commission v. Ledesma and Imperial, Dr. Apolonio’s use
of the funds to purchase the gift cheques cannot be said to be grave misconduct.

First, Dr. Apolonios actions were not attended by a willful intent to violate the law or to
disregard established rules. x x x

Dr. Apolonio merely responded to the employees clamor to utilize a portion of the
workshop budget as a form of Christmas allowance. To ensure that she was not violating any law,
Dr. Apolonio even consulted Mr. Montealto, then Finance and Administrative Chief of the
NBDB, on the possible legal repercussions of the proposal. Likewise, aside from receiving the
same benefit, there is no evidence in the record that Dr. Apolonio unlawfully appropriated in her
favor any amount from the approved workshop budget. Therefore, we see no willful intent in Dr.
Apolonios actions.

xxx

We cannot likewise agree with the CAs findings that Dr. Apolonio’s acts constitute merely
as conduct prejudicial to the best interest of the service. In Manuel v. Judge Calimag, Jr., we
held, viz.:

x x x Misconduct in office has a definite and well-understood legal meaning. By uniform

legal definition, it is a misconduct such as affects his performance of his duties as an
officer and not such only as affects his character as a private individual. In such cases, it
has been said at all times, it is necessary to separate the character of the man from the
character of the officer x x x[.] It is settled that misconduct, misfeasance, or malfeasance
warranting removal from office of an officer must have direct relation to and be
connected with the performance of official duties amounting either to maladministration
or willful, intentional neglect and failure to discharge the duties of the office x x x[.] x x x

Therefore, if a nexus between the public official’s acts and functions is established, such
act is properly referred to as misconduct. In Dr. Apolonios case, this nexus is clear since the
approval of the cash advance was well within her functions as NBDBs executive officer. (Office
of the Ombudsman v. Apolonio, G.R. No. 165132, March 7, 2012)

A government official who fails to comply with her promise to return the
money to her friend after failing to accomplish the task she had willingly accepted,
even if unrelated to her duties as a public officer, is guilty of conduct unbecoming a
public officer.

Petitioner is a government employee, being a department head of the Population

Commission with office at the Provincial Capitol, Trece Martirez City, Cavite.

Sometime in March 2001, petitioner agreed to help her friend, respondent Julia A.
Restrivera, to have the latter’s land located in Carmona, Cavite, registered under the Torrens
System. Petitioner x x x accepted P50,000 from respondent to cover the initial expenses for the
titling of respondent’s land. However, petitioner failed to accomplish her task x x x. When
petitioner failed to return the P50,000, respondent sued her for estafa. Respondent also filed an
administrative complaint for grave misconduct or conduct unbecoming a public officer against
petitioner before the Office of the Ombudsman.

The Ombudsman found petitioner guilty of violating Section 4(b) of R.A. No. 6713 and
suspended her from office for six months without pay. The Ombudsman ruled that petitioner
33 | P a g e
failed to abide by the standard set in Section 4(b) of R.A. No. 6713 and deprived the government
of the benefit of committed service when she embarked on her private interest to help
respondent secure a certificate of title over the latter’s land.

xxx

On the second issue, it is wrong for petitioner to say that since the estafa case against her
was dismissed, she cannot be found administratively liable. It is settled that administrative cases
may proceed independently of criminal proceedings, and may continue despite the dismissal of
the criminal charges.

For proper consideration instead is petitioner’s liability under Sec. 4(A)(b) of R.A. No.
6713.

We quote the full text of Section 4 of R.A. No. 6713:

SEC. 4. Norms of Conduct of Public Officials and Employees. - (A) Every public official and
employee shall observe the following as standards of personal conduct in the discharge and
execution of official duties:

(a) Commitment to public interest. - Public officials and employees shall always uphold the
public interest over and above personal interest. All government resources and powers of their
respective offices must be employed and used efficiently, effectively, honestly and economically,
particularly to avoid wastage in public funds and revenues.

(b) Professionalism. - Public officials and employees shall perform and discharge their duties
with the highest degree of excellence, professionalism, intelligence and skill. They shall enter
public service with utmost devotion and dedication to duty. They shall endeavor to discourage
wrong perceptions of their roles as dispensers or peddlers of undue patronage.

xxx

Both the Ombudsman and CA found the petitioner administratively liable for violating
Section 4(A)(b) on professionalism. x x x

Evidently, both the Ombudsman and CA interpreted Section 4(A) of R.A. No. 6713 as
broad enough to apply even to private transactions that have no connection to the duties of one’s
office. We hold, however, that petitioner may not be penalized for violation of Section 4 (A)(b) of
R.A. No. 6713. The reason though does not lie in the fact that the act complained of is not at all
related to petitioner’s discharge of her duties as department head of the Population
Commission.

xxx

In Domingo v. Office of the Ombudsman, this Court had the occasion to rule that failure
to abide by the norms of conduct under Section 4(A)(b) of R.A. No. 6713, in relation to its
implementing rules, is not a ground for disciplinary action x x x.

We find no compelling reason to depart from our pronouncement in Domingo. Thus, we

reverse the CA and Ombudsman that petitioner is administratively liable under Section 4(A)(b)
of R.A. No. 6713. In so ruling, we do no less and no more than apply the law and its
implementing rules issued by the CSC under the authority given to it by Congress. x x x

But is petitioner nonetheless guilty of grave misconduct, which is a ground for

disciplinary action under R.A. No. 6713?

We also rule in the negative.

Misconduct is a transgression of some established and definite rule of action, more

particularly, unlawful behavior or gross negligence by a public officer. The misconduct is grave if
it involves any of the additional elements of corruption, willful intent to violate the law or to
disregard established rules, which must be proved by substantial evidence. Otherwise, the
misconduct is only simple. Conversely, one cannot be found guilty of misconduct in the absence
of substantial evidence.

In this case, respondent failed to prove (1) petitioner’s violation of an established and
definite rule of action or unlawful behavior or gross negligence, and (2) any of the aggravating
elements of corruption, willful intent to violate a law or to disregard established rules on the
part of petitioner. In fact, respondent could merely point to petitioner’s alleged failure to
observe the mandate that public office is a public trust when petitioner allegedly meddled in an
affair that belongs to another agency and received an amount for undelivered work.

34 | P a g e
 xxx

However, the foregoing does not mean that petitioner is absolved of any administrative
liability.

xxx

For reneging on her promise to return aforesaid amount, petitioner is guilty of conduct
unbecoming a public officer. In Joson v. Macapagal, we have also ruled that the respondents
therein were guilty of conduct unbecoming of government employees when they reneged on
their promise to have pertinent documents notarized and submitted to the Government Service
Insurance System after the complainant’s rights over the subject property were transferred to
the sister of one of the respondents. Recently, in Assistant Special Prosecutor III Rohermia J.
Jamsani-Rodriguez v. Justices Gregory S. Ong, et al., we said that unbecoming conduct means
improper performance and applies to a broader range of transgressions of rules not only of
social behavior but of ethical practice or logical procedure or prescribed method.

This Court has too often declared that any act that falls short of the exacting standards
for public office shall not be countenanced. The Constitution categorically declares as follows:
SECTION 1. Public office is a public trust. Public officers and employees must at all times
be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency,
act with patriotism and justice, and lead modest lives.

Petitioner should have complied with her promise to return the amount to respondent
after failing to accomplish the task she had willingly accepted. x x x Even if unrelated to her
duties as a public officer, petitioner’s transgression could erode the public’s trust in government
employees, more so because she holds a high position in the service. (Samson v. Restrivera,
G.R. No. 178454, March 28, 2011)

THE OMBUDSMAN

The power of investigation granted to the Ombudsman by the 1987

Constitution and The Ombudsman Act is not exclusive but is shared with other
similarly authorized government agencies, such as the PCGG and judges of
municipal trial courts and municipal circuit trial courts. The power to conduct
preliminary investigation on charges against public employees and officials is
likewise concurrently shared with the Department of Justice. Also, the Ombudsman
retains concurrent jurisdiction with the Office of the President and the local
Sanggunians.

Respondent argues that it is the Ombudsman who has primary jurisdiction over the
administrative complaint filed against him. Notwithstanding the consolidation of the
administrative offense (non-declaration in the SSAL) with the criminal complaints for
unexplained wealth (Section 8 of R.A. No. 3019) and also for perjury (Article 183, Revised Penal
Code, as amended) before the Office of the Ombudsman, respondents’ objection on
jurisdictional grounds cannot be sustained.

Section 12 of Article XI of the 1987 Constitution mandated the Ombudsman to act

promptly on complaints filed in any form or manner against public officials or employees of the
Government, or any subdivision, agency, instrumentality thereof, including government-owned
or controlled corporations. Under Section 13, Article XI, the Ombudsman is empowered to
conduct investigations on his own or upon complaint by any person when such act appears to be
illegal, unjust, improper, or inefficient. He is also given broad powers to take the appropriate
disciplinary actions against erring public officials and employees.

The investigative authority of the Ombudsman is defined in Section 15 of R.A. No. 6770:

SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have
the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any

person, any act or omission of any public officer or employee, office or
agency, when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and,
in the exercise of this primary jurisdiction, it may take over, at any stage, from any
investigatory agency of Government, the investigation of such cases;
35 | P a g e
 x x x x (Emphasis supplied.)

Such jurisdiction over public officers and employees, however, is not exclusive.

This power of investigation granted to the Ombudsman by the 1987

Constitution and The Ombudsman Act is not exclusive but is shared with
other similarly authorized government agencies, such as the PCGG and judges of
municipal trial courts and municipal circuit trial courts. The power to conduct
preliminary investigation on charges against public employees and officials is likewise
concurrently shared with the Department of Justice. Despite the passage of the Local
Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the
Office of the President and the local Sanggunians to investigate complaints against local
elective officials. (Emphasis supplied.)

Respondent who is a presidential appointee is under the disciplinary authority of the

OP. Executive Order No. 12 dated April 16, 2001 created the PAGC which was granted the
authority to investigate presidential and also non-presidential employees who may have acted
in conspiracy or may have been involved with a presidential appointee or ranking officer
mentioned x x x. On this score, we do not agree with respondent that the PAGC should have
deferred to the Ombudsman instead of proceeding with the administrative complaint in view of
the pendency of his petition for certiorari with the CA challenging the PAGCs
jurisdiction. Jurisdiction is a matter of law. Jurisdiction once acquired is not lost upon the
instance of the parties but continues until the case is terminated.

It may be recalled that at the time respondent was directed to submit his counter-
affidavit under the Ombudsmans Order dated March 19, 2004, the PAGC investigation had long
commenced and in fact, the PAGC issued an order directing respondent to file his counter-
affidavit/verified answer as early as May 19, 2003. The rule is that initial acquisition of
jurisdiction by a court of concurrent jurisdiction divests another of its own jurisdiction. Having
already taken cognizance of the complaint against the respondent involving non-declaration in
his 2001 and 2002 SSAL, the PAGC thus retained jurisdiction over respondents’ administrative
case notwithstanding the subsequent filing of a supplemental complaint before the Ombudsman
charging him with the same violation. (Flores v. Montemayor, G.R. No. 170146, June 8, 2011)

The Office of the Ombudsman has the power to impose the penalty of
removal, suspension, demotion, fine, censure, or prosecution of a public officer or
employee, in the exercise of its administrative disciplinary authority. It has
disciplinary authority over all elective and appointive officials of the government
and its subdivisions, instrumentalities and agencies (with the exception only of
impeachable officers, members of Congress and the Judiciary).

The Ombudsman has the power to impose the penalty of removal, suspension, demotion,
fine, censure, or prosecution of a public officer or employee, in the exercise of its administrative
disciplinary authority. The challenge to the Ombudsman’s power to impose these penalties, on
the allegation that the Constitution only grants it recommendatory powers, had already been
rejected by this Court.

xxx

x x x Ledesma traced the constitutional mandate of the Ombudsman, as expressed in the

intent of its framers and the constitutionality of RA 6770, viz.:

xxx

It is likewise apparent that under RA 6770, the lawmakers intended to

provide the Office of the Ombudsman with sufficient muscle to ensure that it can
effectively carry out its mandate as protector of the people against inept and
corrupt government officers and employees. The Office was granted the power to
punish for contempt in accordance with the Rules of Court. It was given
disciplinary authority over all elective and appointive officials of the government
and its subdivisions, instrumentalities and agencies (with the exception only of
impeachable officers, members of Congress and the Judiciary). Also, it can
preventively suspend any officer under its authority pending an investigation
when the case so warrants.

xxx

36 | P a g e
 The conclusion reached by the Court in Ledesma is clear: the Ombudsman has been
statutorily granted the right to impose administrative penalties on erring public officials. That
the Constitution merely indicated a recommendatory power in the text of Section 13(3), Article
XI of the Constitution did not deprive Congress of its plenary legislative power to vest the
Ombudsman powers beyond those stated.

We affirmed and consistently applied this ruling in the cases of Gemma P. Cabalit v.
Commission on Audit-Region VII, Office of the Ombudsman v. Masing, Office of the
Ombudsman v. Court of Appeals, Office of the Ombudsman v. Laja, Office of the Ombudsman v.
Court of Appeals, Office of the Ombudsman v. Lucero, and Office of the Ombudsman v. Court of
Appeals.

To be sure, in the most recent case of Gemma P. Cabalit v. Commission on Audit-Region

VII, this Court reiterated the principle behind the grant of such powers to the Ombudsman, viz.:

The provisions in R.A. No. 6770 taken together reveal the manifest intent
of the lawmakers to bestow on the Office of the Ombudsman full administrative
disciplinary authority. These provisions cover the entire gamut of administrative
adjudication which entails the authority to, inter alia, receive complaints,
conduct investigations, hold hearings in accordance with its rules of procedure,
summon witnesses and require the production of documents, place under
preventive suspension public officers and employees pending an investigation,
determine the appropriate penalty imposable on erring public officers or
employees as warranted by the evidence, and, necessarily, impose the said
penalty. Thus, it is settled that the Office of the Ombudsman can
directly impose administrative sanctions. (emphasis ours, citations
excluded)

(Office of the Ombudsman v. Apolonio, G.R. No. 165132, March 7, 2012)

Although the tenor of the text in Section 13(3), Article XI15 of the Constitution merely
indicates a "recommendatory" function, this does not divest Congress of its plenary legislative
power to vest the Ombudsman powers beyond those stated in the Constitutional provision.
Pursuant to Republic Act (R.A.) No. 6770, otherwise known as The Ombudsman Act of 1989, the
Ombudsman is legally authorized to directly impose administrative penalties against errant
public servants. Further, the manifest intent of the lawmakers was to bestow on the
Ombudsman full administrative disciplinary authority in accord with the constitutional
deliberations. (Ombudsman v. Quimbo, G.R. No. 173277, February 25, 2015)

The Ombudsman has concurrent jurisdiction over administrative cases which

are within the jurisdiction of the regular courts or administrative agencies.

While Section 21 of The Ombudsman Act and the Local Government Code both provide
for the procedure to discipline elective officials, the seeming conflicts between the two laws have
been resolved in cases decided by this Court.

In Hagad v. Gozo-Dadole, we pointed out that "there is nothing in the Local

Government Code to indicate that it has repealed, whether expressly or impliedly, the pertinent
provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so
inconsistent x x x as to compel us to only uphold one and strike down the other."

The Ombudsman has primary jurisdiction to investigate any act or omission of a public
officer or employee who is under the jurisdiction of the Sandiganbayan. RA 6770 provides:
Section 15. Powers, Functions and Duties. — The Office of the Ombudsman shall have the
following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission
of any public officer or employee, office or agency, when such act or omission appears to be illegal,
unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from
any investigatory agency of Government, the investigation of such cases.

The Sandiganbayan’s jurisdiction extends only to public officials occupying positions

corresponding to salary grade 27 and higher.

37 | P a g e
 Consequently, as we held in Office of the Ombudsman v. Rodriguez, any act or omission
of a public officer or employee occupying a salary grade lower than 27 is within the concurrent
jurisdiction of the Ombudsman and of the regular courts or other investigative agencies.

In administrative cases involving the concurrent jurisdiction of two or more disciplining

authorities, the body where the complaint is filed first, and which opts to take cognizance of the
case, acquires jurisdiction to the exclusion of other tribunals exercising concurrent jurisdiction.
In this case, the petitioner is a Barangay Chairman, occupying a position corresponding to salary
grade 14. Under RA 7160, the sangguniang panlungsod or sangguniang bayan has disciplinary
authority over any elective barangay official, as follows:

Since the complaint against the petitioner was initially filed with the Office of the
Ombudsman, the Ombudsman's exercise of jurisdiction is to the exclusion of the sangguniang
bayan whose exercise of jurisdiction is concurrent. (Alejandrino v. Office of the Ombudsman
Fact Finding and Intelligence Bureau, G.R. No. 173121, April 3, 2013)

The Ombudsman has jurisdiction over a complaint concerning an act of the

public official or employee that is not service-connected.

Petitioner is a government employee, being a department head of the Population

Commission with office at the Provincial Capitol, Trece Martirez City, Cavite.

Sometime in March 2001, petitioner agreed to help her friend, respondent Julia A.
Restrivera, to have the latter’s land located in Carmona, Cavite, registered under the Torrens
System. Petitioner said that the expenses would reach P150,000 and accepted P50,000 from
respondent to cover the initial expenses for the titling of respondent’s land. However, petitioner
failed to accomplish her task because it was found out that the land is government property.
When petitioner failed to return the P50,000, respondent sued her for estafa. Respondent also
filed an administrative complaint for grave misconduct or conduct unbecoming a public officer
against petitioner before the Office of the Ombudsman.

The Ombudsman found petitioner guilty of violating Section 4(b) of R.A. No. 6713 and
suspended her from office for six months without pay.

xxx

1. Does the Ombudsman have jurisdiction over a case involving a private dealing by a
government employee or where the act complained of is not related to the performance of
official duty?

xxx

On the first issue, we agree with the CA that the Ombudsman has jurisdiction over
respondent’s complaint against petitioner although the act complained of involves a private deal
between them. Section 13(1),13 Article XI of the 1987 Constitution states that the Ombudsman
can investigate on its own or on complaint by any person any act or omission of any public
official or employee when such act or omission appears to be illegal, unjust, or improper. Under
Section 1614 of R.A. No. 6770, otherwise known as the Ombudsman Act of 1989, the jurisdiction
of the Ombudsman encompasses all kinds of malfeasance, misfeasance, and nonfeasance
committed by any public officer or employee during his/her tenure. Section 1915 of R.A. No.
6770 also states that the Ombudsman shall act on all complaints relating, but not limited, to acts
or omissions which are unfair or irregular. Thus, even if the complaint concerns an act of the
public official or employee which is not service-connected, the case is within the jurisdiction of
the Ombudsman. The law does not qualify the nature of the illegal act or omission of the public
official or employee that the Ombudsman may investigate. It does not require that the act or
omission be related to or be connected with or arise from the performance of official duty. Since
the law does not distinguish, neither should we. (Samson v. Restrivera, G.R. No. 178454, March
28, 2011)

JURISDICTION OF THE CSC IN ADMINISTRATIVE CASES

The Civil Service Commission has jurisdiction over cases filed directly with it,
regardless of who initiated the complaint. Thus, even private individuals may file a
complaint against a member of the Civil Service with the CSC.

38 | P a g e
 The CSC, as the central personnel agency of the government, has the power to appoint
and discipline its officials and employees and to hear and decide administrative cases instituted
by or brought before it directly or on appeal. Section 2(1), Article IX(B) of the 1987 Constitution
defines the scope of the civil service:

The civil service embraces all branches, subdivisions, instrumentalities, and agencies of
the Government, including government-owned or controlled corporations with original
charters.

By virtue of Presidential Decree (P.D.) No. 1341, PUP became a chartered state
university, thereby making it a government-owned or controlled corporation with an original
charter whose employees are part of the Civil Service and are subject to the provisions of E.O.
No. 292.19

The parties in these cases do not deny that Guevarra and Cezar are government
employees and part of the Civil Service. The controversy, however, stems from the interpretation
of the disciplinary jurisdiction of the CSC as specified in Section 47, Chapter 7, Subtitle A, Title I,
Book V of E.O. No. 292.

xxx

The understanding by the CA of Section 47, Chapter 7, Subtitle A, Title I, Book V of E.O.
No. 292 which states that "a complaint may be filed directly with the Commission by a private
citizen against a government official or employee" is that the CSC can only take cognizance of a
case filed directly before it if the complaint was made by a private citizen.

xxx

There is no cogent reason to differentiate between a complaint filed by a private citizen

and one filed by a member of the civil service, especially in light of Section 12(11), Chapter 3,
Subtitle A, Title I, Book V of the same E.O. No. 292 which confers upon the CSC the power to
"hear and decide administrative cases instituted by or brought before it directly or on appeal"
without any qualification.

In the case of Camacho v. Gloria, the Court stated that "under E.O. No. 292, a complaint
against a state university official may be filed with either the university’s Board of Regents or
directly with the Civil Service Commission." It is important to note that the Court did not
interpret the Administrative Code as limiting such authority to exclude complaints filed directly
with it by a member of the civil service.

Moreover, as early as in the case of Hilario v. Civil Service Commission, the Court
interpreted Section 47, Chapter 7, Subtitle A, Title I, Book V of E.O. No. 292 as allowing the
direct filing with the CSC by a public official of a complaint against a fellow government
employee. x x x

[T]he identity of the complainant is immaterial to the acquisition of jurisdiction over an

administrative case by the CSC. The law is quite clear that the CSC may hear and decide
administrative disciplinary cases brought directly before it or it may deputize any department or
agency to conduct an investigation. (Civil Service Commission v. Court of Appeals, G.R. No.
176162, October 9, 2012)

CSC has concurrent original jurisdiction with the Board of Regents of a state
university over administrative cases against university officials.

The Uniform Rules on Administrative Cases in the Civil Service (the Uniform Rules)
explicitly allows the CSC to hear and decide administrative cases directly brought before it:
Section 4. Jurisdiction of the Civil Service Commission. – The Civil Service
Commission shall hear and decide administrative cases instituted by, or brought before it,
directly or on appeal, including contested appointments, and shall review decisions and
actions of its offices and of the agencies attached to it.

Except as otherwise provided by the Constitution or by law, the Civil Service

Commission shall have the final authority to pass upon the removal, separation and
suspension of all officers and employees in the civil service and upon all matters relating to
the conduct, discipline and efficiency of such officers and employees.

39 | P a g e
 xxx

It is the Court’s position that the Uniform Rules did not supplant the law which provided
the CSC with original jurisdiction. While the Uniform Rules may have so provided, the Court
invites attention to the cases of Civil Service Commission v. Alfonso and Civil Service
Commission v. Sojor, x x x, both of which buttressed the pronouncement that the Board of
Regents shares its authority to discipline erring school officials and employees with the CSC.

[T]he CSC may take cognizance of an administrative case filed directly with it against an
official or employee of a chartered state college or university. This is regardless of whether the
complainant is a private citizen or a member of the civil service and such original jurisdiction is
shared with the Board of Regents of the school. (Civil Service Commission v. Court of Appeals,
G.R. No. 176162, October 9, 2012)

SUSPENSION AND BACK SALARIES

Preventive suspension is of two kinds. The first is the preventive suspension

pending investigation, and the second is the preventive suspension pending appeal
where the penalty imposed by the disciplining authority is either suspension or
dismissal but after review the respondent official or employee is exonerated. If
the proper disciplinary authority does not finally decide the administrative case
within a period of 90 days from the start of preventive suspension pending
investigation, and the respondent is not a presidential appointee, the preventive.
suspension is lifted and the respondent is "automatically reinstated in the service."
In the case of presidential appointees, the preventive suspension pending
investigation shall be "for a reasonable time as the circumstances of the case may
warrant."

By law, Baculi should have been automatically reinstated at the end of the 90-day period
of his preventive suspension because his case was not finally decided within the said period.

We have to point out that preventive suspension is of two kinds. The first is the
preventive suspension pending investigation, and the second is the preventive suspension
pending appeal where the penalty imposed by the disciplining authority is either suspension or
dismissal but after review the respondent official or employee is exonerated. The nature of
preventive suspension pending investigation has been explained in the following manner:

x x x Preventive suspension pending investigation is not a penalty. It is a measure

intended to enable the disciplining authority to investigate charges against respondent by
preventing the latter from intimidating or in any way influencing witnesses against him. If the
investigation is not finished and a decision is not rendered within that period, the suspension
will be lifted and the respondent will automatically be reinstated. If after investigation,
respondent is found innocent of the charges and is exonerated, he should be reinstated.

Preventive suspension pending investigation is not violative of the Constitution because

it is not a penalty. It is authorized by law whenever the charge involves dishonesty, oppression
or grave misconduct, or neglect in the performance of duty, or whenever there are reasons to
believe that the respondent is guilty of charges that would warrant removal from the service. If
the proper disciplinary authority does not finally decide the administrative case within a period
of 90 days from the start of preventive suspension pending investigation, and the respondent is
not a presidential appointee, the preventive. suspension is lifted and the respondent is
"automatically reinstated in the service." In the case of presidential appointees, the preventive
suspension pending investigation shall be "for a reasonable time as the circumstances of the
case may warrant." (Baculi v. Office of the President, March 8, 2017, G.R. No. 188681)

There shall be no indefinite suspension pending investigation, whether the

respondent officials are presidential or nonpresidential appointees. It cannot be
validly argued that in the case of presidential appointees the preventive suspension
pending investigation can be indefinite. In the guise of a preventive suspension, the
official’s term of office could be shortened and he could, in effect, be removed
without a finding of a cause duly established after due hearing, in violation of the
Constitution.

40 | P a g e
 Nonetheless, there shall be no indefinite suspension pending investigation, whether the
respondent officials are presidential or nonpresidential appointees. The law abhors indefinite
preventive suspension because the indefiniteness violates the constitutional guarantees under
the due process and equal protection clauses, as well as the right of public officers and
employees to security of tenure. The abhorrence of indefinite suspensions impelled the Court
in Gonzaga v. Sandiganbayan to delineate rules on preventive suspensions pending
investigation, viz.:

To the extent that there may be cases of indefinite suspension imposed either under
Section 13 of Rep. Act 3019, or Section 42 of Pres. Decree 807, it is best for the guidance of all
concerned that this Court set forth the rules on the period of preventive suspension under the
aforementioned laws, as follows:

1. Preventive suspension under Section 13, Rep. Act 3019 as amended shall be limited to
a maximum period of ninety (90) days, from issuance thereof, and this applies to all public
officers, (as defined in Section 2(b) of Rep. Act 3019) who are validly charged under said Act.

2. Preventive suspension under Section 42 of Pres. Decree 807 shall apply to all officers
or employees whose positions are embraced in the Civil Service, as provided under Sections 3
and 4 of said Pres. Decree 807; and shall be limited to a maximum period of ninety (90) days
from issuance, except where there is delay in the disposition of the case, which is due to the
fault, negligence or petition of the respondent, in which case the period of delay shall not be
counted in computing the period of suspension herein stated; provided that if the person
suspended is a presidential appointee, the continuance of his suspension shall be for a
reasonable time as the circumstances of the case may warrant.

It cannot be validly argued that in the case of presidential appointees the preventive
suspension pending investigation can be indefinite. The Court discredited such argument
in Garcia v. The Executive Secretary, and directed the immediate reinstatement of a
presidential appointee whose preventive suspension had lasted for nearly seven months,
declaring:

To adopt the theory of respondents that an officer appointed by the President, facing
administrative charges, can be preventively suspended indefinitely, would be to countenance a
situation where the preventive suspension can, in effect, be the penalty itself without a finding of
guilt after due hearing, contrary to the express mandate of the Constitution and the Civil Service
law. This, it is believed, is not conducive to the maintenance of a robust, effective and efficient
civil service, the integrity of which has, in this jurisdiction, received constitutional guarantee, as
it places in the hands of the Chief Executive a weapon that could be wielded to undermine the
security of tenure of public officers. Of course, this is not so in the case of those officers holding
office at the pleasure of the President. But where the tenure of office is fixed, as in the case of
herein petitioner, which according to the law he could hold "for 6 years and shall not be
removed therefrom except for cause", to sanction the stand of respondents would be to nullify
and render useless such specific condition imposed by the law itself. If he could be preventively
suspended indefinitely, until the final determination of the administrative charges against him
(and under the circumstances, it would be the President himself who would decide the same at a
time only he can determine) then the provisions of the law both as to the fixity of his tenure and
the limitation of his removal to only for cause would be meaningless. In the guise of a preventive
suspension, his term of office could be shortened and he could, in effect, be removed without a
finding of a cause duly established after due hearing, in violation of the Constitution. xxxx

In Layno, Sr. v. Sandiganbayan, the Court has further reminded that preventive
suspension pending investigation for an indefinite period of time, like one that would last until
the case against the incumbent official would have been finally terminated, would "outrun the
bounds of reason and result in sheer oppression," and would be a denial of due process.

Conformably with the foregoing disquisitions, we hold that the CA correctly decreed that
Baculi should be paid his back salaries and other benefits for the entire time that he should have
been automatically reinstated at the rate owing to his position that he last received prior to his
preventive suspension on September 4, 1992. Such time corresponded to the period from
December 4, 1992 until June 25, 2003, but excluding the interval from March 12, 2001 until
December 31, 2001 when he was briefly reinstated. (Baculi v. Office of the President, March 8,
2017, G.R. No. 188681)

Two conditions must be met before an employee may be entitled to back

salaries during the suspension pending an appeal: 1) the employee must be found
innocent of the charges and 2) his suspension must be unjustified.

41 | P a g e
 The issue of entitlement to back salaries, for the period of suspension pending appeal, of
a government employee who had been dismissed but was subsequently exonerated is settled in
our jurisdiction. The Courts starting point for this outcome is the no work-no pay principle
public officials are only entitled to compensation if they render service. We have excepted from
this general principle and awarded back salaries even for unworked days to illegally dismissed or
unjustly suspended employees based on the constitutional provision that no officer or employee
in the civil service shall be removed or suspended except for cause provided by law; to deny
these employees their back salaries amounts to unwarranted punishment after they have been
exonerated from the charge that led to their dismissal or suspension.

The present legal basis for an award of back salaries is Section 47, Book V of the
Administrative Code of 1987.

Section 47. Disciplinary Jurisdiction. x x x.

(4) An appeal shall not stop the decision from being executory, and in case the penalty is
suspension or removal, the respondent shall be considered as having been under
preventive suspensionduring the pendency of the appeal in the event he wins an appeal.
(italics ours)

This provision, however, on its face, does not support a claim for back salaries since it
does not expressly provide for back salaries during this period; our established rulings hold that
back salaries may not be awarded for the period of preventive suspension as the law itself
authorizes its imposition so that its legality is beyond question.

To resolve the seeming conflict, the Court crafted two conditions before an employee
may be entitled to back salaries: a) the employee must be found innocent of the charges and b)
his suspension must be unjustified. The reasoning behind these conditions runs this way:
although an employee is considered under preventive suspension during the pendency of a
successful appeal, the law itself only authorizes preventive suspension for a fixed period; hence,
his suspension beyond this fixed period is unjustified and must be compensated. (Civil Service
Commission v. Cruz, G.R. No. 187858, August 9, 2011)

In case of an employee’s complete exoneration of the administrative charge

against him (i.e., the employee is not found guilty of any other offense), or the
employee’s acquittal of the criminal charge based on his innocence, the requirement
(for payment of back wages for the period of the suspension pending appeal) that
the suspension must be unjustified is automatically subsumed in the other
requirement of exoneration.

In Tan v. Gimenez, etc., and Aguilar, etc., we ruled that the payment of back salary to a
government employee, who was illegally removed from office because of his eventual
exoneration on appeal, is merely incidental to the ordered reinstatement.

Tan was subsequently reiterated in Taala v. Legaspi, et al., a case involving an employee
who was administratively dismissed from the service following his conviction in the criminal
case arising from the same facts as in the administrative case. On appeal, however, he was
acquitted of the criminal charge and was ultimately ordered reinstated by the Office of the
President. Failing to secure his actual reinstatement, he filed a mandamus petition to compel
his superiors to reinstate him and to pay his back salaries from the date of his suspension to the
date of his actual reinstatement. We found merit in his plea and held:

[The employee] had been acquitted of the criminal charges x x x, and the President had
reversed the decision x x x in the administrative case which ordered his separation from
the service, and the President had ordered his reinstatement to his position, it results that
the suspension and the separation from the service of the [employee] were thereby
considered illegal. x x x.

x x x [In this case,] by virtue of [the Presidents order of reinstatement], [the

employees] suspension and separation from the service x x x was thereby declared illegal,
so that for all intents and purposes he must be considered as not having been separated
from his office. The lower court has correctly held that the [employee] is entitled to back
salaries.

The Taala ruling was reiterated in Cristobal v. Melchor, Tan, Jr. v. Office of the
President, De Guzman v. CSC and Del Castillo v. CSC - cases involving government employees
who were dismissed after being found administratively liable, but who were subsequently
exonerated on appeal.
42 | P a g e
 In Garcia v. Chairman Commission on Audit, the Court held that where the employee,
who was dismissed after being found administratively liable for dishonesty, was acquitted on a
finding of innocence in the criminal case (for qualified theft) based on the same acts for which
he was dismissed the executive pardon granted him in the administrative case (in light of his
prior acquittal) entitled him to back salaries from the time of his illegal dismissal up to his actual
reinstatement.

The above situation should be distinguished from the case of an employee who was
dismissed from the service after conviction of a crime and who was ordered reinstated after
being granted pardon. We held that he was not entitled to back salaries since he was not
illegally dismissed nor acquitted of the charge against him.

Incidentally, under the Anti-Graft and Corrupt Practices Act, if the public official or
employee is acquitted of the criminal charge/s specified in the law, he is entitled to
reinstatement and the back salaries withheld during his suspension, unless in the meantime
administrative proceedings have been filed against him.

In Tan, Jr. v. Office of the President, the Court clarified that the silence of Section
42 (Lifting of Preventive Suspension Pending Administrative Investigation) of the Civil Service
Decree on the payment of back salaries, unlike its predecessor, is no reason to deny back salaries
to a dismissed civil servant who was ultimately exonerated.

xxx

These cited cases illustrate that a black and white observance of the requisites
in Gonzales is not required at all times. The common thread in these cases is either the
employee’s complete exoneration of the administrative charge against him (i.e., the
employee is not found guilty of any other offense), or the employees acquittal of the criminal
charge based on his innocence. If the case presented falls on either of these instances, the
conditions laid down in Gonzales become the two sides of the same coin; the requirement that
the suspension must be unjustified is automatically subsumed in the other requirement of
exoneration. (Civil Service Commission v. Cruz, G.R. No. 187858, August 9, 2011)

Meaning of exoneration: If the administrative offense found to have been

actually committed is of lesser gravity than the offense charged, the employee
cannot be considered exonerated, if the factual premise for the imposition of the
lesser penalty remains the same. The employee found guilty of a lesser offense may
only be entitled to back salaries when the offense actually committed does not carry
the penalty of more than one month suspension or dismissal.

The mere reduction of the penalty on appeal does not entitle a government employee to
back salaries if he was not exonerated of the charge against him. This is the Courts teaching
in City Mayor of Zamboanga v. CA. In this case, the employee was initially found guilty of
disgraceful and immoral conduct and was given the penalty of dismissal by the City Mayor of
Zamboanga. On appeal, however, the CA limited the employee’s guilt to improper conduct and
correspondingly reduced the penalty to six-months suspension without pay with a stern warning
that repetition of the same or similar offense will be dealt with more severely." The CA also
awarded him full backwages.

We held that the CA erred in awarding back salaries by reiterating the principle that back
salaries may be ordered paid to an officer or employee only if he is exonerated of the charge
against him and his suspension or dismissal is found and declared to be illegal.

The Court had the occasion to explain what constitutes exoneration in Bangalisan v.
Hon. CA, the respondents cited case. In this case, the Secretary of Education found the public
school teachers guilty as charged and imposed on them the penalty of dismissal. On appeal, the
CSC affirmed the Secretarys ruling but reduced the penalty imposed to suspension without pay.
However, the CSC found one of the teachers (Mariano) guilty only of violation of reasonable
office rules and regulations, and only penalized her with reprimand. None of the petitioning
public school teachers were awarded back salaries.

On appeal to this Court, we awarded back salaries to Mariano. We explained that since
the factual premise of the administrative charges against him - i.e., his alleged participation in
the illegal mass actions, and his suspension - was amply rebutted, then Mariano was in effect

43 | P a g e
exonerated of the charges against him and was, thus, entitled to back salaries for the period of
his suspension pending appeal.

With respect to petitioner Rodolfo Mariano, payment of his back wages is in

order. A reading of the resolution of the [CSC] will show that he was exonerated of the
charges which formed the basis for his suspension. The Secretary of the DECS charged
him with and he was later found guilty of grave misconduct x x x [and] conduct
prejudicial to the best interest of the service x x x for his participation in the mass actions
x x x. It was his alleged participation in the mass actions that was the basis of his
preventive suspension and, later, his dismissal from the service.

However, the [CSC], in the questioned resolution, made [the] finding that
Mariano was not involved in the "mass actions" but was absent because he was in Ilocos
Sur to attend the wake and interment of his grandmother. Although the CSC imposed
upon him the penalty of reprimand, the same was for his violation of reasonable office
rules and regulations because he failed to inform the school or his intended absence and
neither did he file an application for leave covering such absences.

xxxx

However, with regard to the other petitioners, the payment of their back wages
must be denied. Although the penalty imposed on them was only suspension, they were
not completely exonerated of the charges against them. The CSC made specific findings
that, unlike petitioner Mariano, they indeed participated in the mass actions. It will be
noted that it was their participation in the mass actions that was the very basis of the
charges against them and their subsequent suspension.

Bangalisan clearly laid down the principle that if the exoneration of the employee is
relative (as distinguished from complete exoneration), an inquiry into the factual premise of the
offense charged and of the offense committed must be made. If the administrative offense found
to have been actually committed is of lesser gravity than the offense charged, the employee
cannot be considered exonerated if the factual premise for the imposition of the lesser penalty
remains the same. The employee found guilty of a lesser offense may only be entitled to back
salaries when the offense actually committed does not carry the penalty of more than one month
suspension or dismissal.

Bangalisan reiterated that the payment of back salaries, during the period of suspension
of a member of the civil service who is subsequently ordered reinstated, may be decreed only if
the employee is found innocent of the charges which caused the suspension and when the
suspension is unjustified. This pronouncement was re-echoed in Jacinto v. CA, De la Cruz v.
CA, and Hon. Gloria v. CA. Taking off from Bangalisan, the Court in De la Cruz categorically
stated:

The issue of whether back wages may be awarded to teachers ordered reinstated
to the service after the dismissal orders x x x were commuted by the CSC to six (6)
months suspension is already settled.

In Bangalisan v. Court of Appeals, we resolved the issue in the negative on the

ground that the teachers were neither exonerated nor unjustifiably suspended, two (2)
circumstances necessary for the grant of back wages in administrative
disciplinary cases.

In Hon. Gloria, involving the same factual situation as Bangalisan, the CA awarded the
public school teachers back salaries - for the period beyond the allowable period of preventive
suspension - since they were ultimately exonerated. In affirming the CA, the Court
distinguished preventive suspension from suspension pending appeal for the purpose of
determining the extent of an employee’s entitlement to back salaries. The Court ruled that under
Executive Order (E.O.) No. 292, there are two kinds of preventive suspension of civil service
employees who are charged with offenses punishable by removal or suspension: (i) preventive
suspension pending investigation and (ii) preventive suspension pending appeal; compensation
is due only for the period of preventive suspension pending appeal should the employee be
ultimately exonerated. Citing Floyd R. Mechem's A Treatise on the Law of Public Offices and
Officers, Hon. Gloria ruled:

Thus, it is not enough that an employee is exonerated of the

charges against him. In addition, his suspension must be unjustified. The case
of Bangalisan v. Court of Appeals itself similarly states that "payment of salaries
corresponding to the period [1] when an employee is not allowed to work may be
decreed if he is found innocent of the charges which caused his

44 | P a g e
 suspension and [2] when the suspension is unjustified. (emphases and
underscoring ours)

A careful reading of these cases would reveal that a strict observance of the second
condition for an award of back salaries becomes important only if the employee is not totally
innocent of any administrative infraction. As previously discussed, where the employee is
completely exonerated of the administrative charge or acquitted in the criminal case arising
from the same facts based on a finding of innocence, the second requirement becomes
subsumed in the first. Otherwise, a determination of the act/s and offense/s actually committed
and of the corresponding penalty imposed has to be made. (Civil Service Commission v. Cruz,
G.R. No. 187858, August 9, 2011)

Meaning of unjustified suspension: A suspension is unjustified for purposes of

payment of back salaries for the preventive suspension pending appeal when the
separation was not warranted because the government employee gave no cause for
suspension or dismissal, such as where the government employee did not commit
the offense charged, punishable by suspension or dismissal (total exoneration); or
the government employee is found guilty of another offense for an act different
from that for which he was charged.

On the suspension/dismissal aspect, this second condition is met upon a showing that
the separation from office is not warranted under the circumstances because the government
employee gave no cause for suspension or dismissal. This squarely applies in cases where the
government employee did not commit the offense charged, punishable by suspension or
dismissal (total exoneration); or the government employee is found guilty of another offense for
an act different from that for which he was charged. (Civil Service Commission v. Cruz, G.R. No.
187858, August 9, 2011)

ELECTION LAW

RIGHT OF SUFFRAGE & VOTER REGISTRATION

Biometrics validation as part of the registration process 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.

Essentially, the present petition is a constitutional challenge against the biometrics

validation requirement imposed under RA 10367, including COMELEC Resolution Nos. 9721,
9863, and 10013. As non-compliance with the same results in the penalty of deactivation,
petitioners posit that it has risen to the level of an unconstitutional substantive requirement in
the exercise of the right of suffrage. They submit that the statutory requirement of biometric
validation is no different from the unconstitutional requirement of literacy and property because
mere non-validation already absolutely curtails the exercise of the right of suffrage through
deactivation. Further, they advance the argument that deactivation is not the disqualification by
law contemplated as a valid limitation to the exercise of suffrage under the 1987 Constitution.

The contestation is untenable.

As early as the 1936 case of The People of the Philippine Islands v. Corral,67 it has been
recognized that "[t]he right to vote is not a natural right but is a right created by law. Suffrage
is a privilege granted by the State to such persons or classes as are most likely to
exercise it for the public good. xxx

Section 1, Article V of the 1987 Constitution delineates the current parameters for the
exercise of suffrage:
Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have resided in
the Philippines for at least one year and in the place wherein they propose to vote for at
least six months immediately preceding the election. No literacy, property, or other
substantive requirement shall be imposed on the exercise of suffrage.

45 | P a g e
 Dissecting the provision, one must meet the following qualifications in order to exercise
the right of suffrage: first, he must be a Filipino citizen; second, he must not be disqualified by
law; and third, he must have resided in the Philippines for at least one (1) year and in the place
wherein he proposes to vote for at least six (6) months immediately preceding the election.

The second item more prominently reflects the franchised nature of the right of suffrage.
The State may therefore regulate said right by imposing statutory
disqualifications, with the restriction, however, that the same do not amount to, as
per the second sentence of the provision, a "literacy, property or other substantive
requirement." xxx
xxx

Properly speaking, the concept of a "qualification", at least insofar as the discourse on

suffrage is concerned, should be distinguished from the concept of "registration", which is
jurisprudentially regarded as only the means by which a person's qualifications to vote is
determined. In Yra v. Abaño,77 citing Meffert v. Brown,78 it was stated that "[t]he act of
registering is only one step towards voting, and it is not one of the elements that makes the
citizen a qualified voter [and] one may be a qualified voter without exercising the right to vote."
In said case, this Court definitively characterized registration as a form of regulation and
not as a qualification for the right of suffrage:

Registration regulates the exercise of the right of suffrage. It is

not a qualification for such right. (Emphasis supplied)

xxx

As the deliberations on the 1973 Constitution made clear, registration is a mere

procedural requirement which does not fall under the limitation that "[n]o
literacy, property, or other substantive requirement shall be imposed on the
exercise of suffrage." This was echoed in AKBAYAN-Youth v. COMELEC (AKBAYAN-
Youth), wherein the Court pronounced that the process of registration is a procedural
limitation on the right to vote. Albeit procedural, the right of a citizen to vote nevertheless
remains conditioned upon it: xxx

RA 8189 primarily governs the process of registration. It defines "registration" as "the

act of accomplishing and filing of a sworn application for registration by a qualified voter before
the election officer of the city or municipality wherein he resides and including the same in the
book of registered voters upon approval by the [ERB]." xxx

To complement RA 8189 in light of the advances in modern technology, RA 10367, or the

assailed Biometrics Law, was signed into law in February 2013. It built on the policy
considerations behind RA 8189 as it institutionalized biometrics validation as part of the
registration process: xxx
xxx

Sections 3 and 10 of RA 10367 respectively require registered and new voters to submit
themselves for biometrics validation: xxx
xxx

The consequence of non-compliance is "deactivation" which "refers to the removal of the

registration record of the registered voter from the corresponding precinct book of voters for
failure to comply with the validation process as required by [RA 10367]." xxx
xxx

[P]etitioners' claim that biometrics validation imposed under RA 10367, and

implemented under COMELEC Resolution Nos. 9721, 9863, and 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.
Petitioners would do well to be reminded of this Court's pronouncement in AKBAYAN-Youth,
wherein it was held that:

[T]he act of registration is an indispensable precondition to the right of suffrage.

For registration is part and parcel of the right to vote and an indispensable element in the
election process. Thus, contrary to petitioners' argument, registration cannot and should
not be denigrated to the lowly stature of a mere statutory requirement. Proceeding from
the significance of registration as a necessary requisite to the right to vote, the
46 | P a g e
 State undoubtedly, in the exercise of its inherent police power, may then enact
laws to safeguard and regulate the act of voter's registration for the ultimate
purpose of conducting honest, orderly and peaceful election, to the incidental yet
generally important end, that even pre-election activities could be performed by the duly
constituted authorities in a realistic and orderly manner - one which is not indifferent, and
so far removed from the pressing order of the day and the prevalent circumstances of the
times. (Emphasis and underscoring supplied)

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. (Kabataan Party List v. Comelec, G.R. No.
221318, December 16, 2015) (Emphases supplied)

JURISDICTION OF ELECTORAL TRIBUNALS

The HRET does not acquire jurisdiction unless a petition is duly filed with said
tribunal. The jurisdiction of the HRET begins only after the candidate is considered
a Member of the House of Representatives. To be considered a Member of the House
of Representatives, there must be a concurrence of the following requisites: (1) a
valid proclamation, (2) a proper oath, and (3) assumption of office.

According to petitioner, the COMELEC was ousted of its jurisdiction when she was duly
proclaimed because pursuant to Section 17, Article VI of the 1987 Constitution, the HRET has
the exclusive jurisdiction to be the “sole judge of all contests relating to the election, returns and
qualifications” of the Members of the House of Representatives.

Contrary to petitioner’s claim, however, the COMELEC retains jurisdiction for the
following reasons:c

First, the HRET does not acquire jurisdiction over the issue of petitioner’s qualifications,
as well as over the assailed COMELEC Resolutions, unless a petition is duly filed with said
tribunal. Petitioner has not averred that she has filed such action.

Second, the jurisdiction of the HRET begins only after the candidate is considered a
Member of the House of Representatives, as stated in Section 17, Article VI of the 1987
Constitution:

Section 17. The Senate and the House of Representatives shall each have an
Electoral Tribunal which shall be the sole judge of all contests relating to the election,
returns, and qualifications of their respective Members. x x x

As held in Marcos v. COMELEC, the HRET does not have jurisdiction over a candidate
who is not a member of the House of Representatives, to wit:

As to the House of Representatives Electoral Tribunal’s supposed assumption of

jurisdiction over the issue of petitioner’s qualifications after the May 8, 1995 elections,
suffice it to say that HRET’s jurisdiction as the sole judge of all contests relating to the
elections, returns and qualifications of members of Congress begins only after a
candidate has become a member of the House of Representatives. Petitioner
not being a member of the House of Representatives, it is obvious that the
HRET at this point has no jurisdiction over the question. (Emphasis supplied.)

The next inquiry, then, is when is a candidate considered a Member of the House of
Representatives?

In Vinzons-Chato v. COMELEC, citing Aggabao v. COMELEC and Guerrero v.

COMELEC, the Court ruled that:

The Court has invariably held that once a winning candidate has been
proclaimed, taken his oath, and assumed office as a Member of the House of
Representatives, the COMELEC’s jurisdiction over election contests relating to his election,
returns, and qualifications ends, and the HRET’s own jurisdiction begins. (Emphasis
supplied.)

47 | P a g e
 This pronouncement was reiterated in the case of Limkaichong v. COMELEC, wherein
the Court, referring to the jurisdiction of the COMELEC vis-a-vis the HRET, held that:

The Court has invariably held that once a winning candidate has been
proclaimed, taken his oath, and assumed office as a Member of the House of
Representatives, the COMELEC's jurisdiction over election contests relating to his election,
returns, and qualifications ends, and the HRET's own jurisdiction begins. (Emphasis
supplied.)

This was again affirmed in Gonzalez v. COMELEC, to wit:

After proclamation, taking of oath and assumption of office by Gonzalez,

jurisdiction over the matter of his qualifications, as well as questions regarding the conduct
of election and contested returns – were transferred to the HRET as the constitutional body
created to pass upon the same. (Emphasis supplied.)

From the foregoing, it is then clear that to be considered a Member of the House of
Representatives, there must be a concurrence of the following requisites: (1) a valid
proclamation, (2) a proper oath, and (3) assumption of office.

Indeed, in some cases, this Court has made the pronouncement that once a proclamation
has been made, COMELEC’s jurisdiction is already lost and, thus, its jurisdiction over contests
relating to elections, returns, and qualifications ends, and the HRET’s own jurisdiction begins.
However, it must be noted that in these cases, the doctrinal pronouncement was made in the
context of a proclaimed candidate who had not only taken an oath of office, but who had also
assumed office.

xxx

Apparently, the earlier cases were decided after the questioned candidate had already
assumed office, and hence, was already considered a Member of the House of
Representatives, unlike in the present case.

Here, the petitioner cannot be considered a Member of the House of Representatives

because, primarily, she has not yet assumed office. To repeat what has earlier been said, the
term of office of a Member of the House of Representatives begins only “at noon on the thirtieth
day of June next following their election.” Thus, until such time, the COMELEC retains
jurisdiction.

In her attempt to comply with the second requirement, petitioner attached a

purported Oath Of Office taken before Hon. Feliciano Belmonte Jr. on 5 June 2013. However,
this is not the oath of office which confers membership to the House of Representatives.

Section 6, Rule II (Membership) of the Rules of the House of Representatives provides:

Section 6. Oath or Affirmation of Members. – Members shall take their oath or

affirmation either collectively or individually before the Speaker in open session.

Consequently, before there is a valid or official taking of the oath it must be made (1)
before the Speaker of the House of Representatives, and (2) in open session. Here, although she
made the oath before Speaker Belmonte, there is no indication that it was made during plenary
or in open session and, thus, it remains unclear whether the required oath of office was indeed
complied with. (Ongsiako Reyes v. Comelec, G.R. No. 20726, June 25, 2013)

Party-list nominees are "elected members" of the House of Representatives;

once the party or organization has been proclaimed and the nominee has taken his
oath and assumed office as member of the House, the COMELEC’s jurisdiction ends
and the HRET’s own jurisdiction begins

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, xxx, party-list nominees are "elected members" of the House of
Representatives no less than the district representatives are, 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
48 | P a g e
jurisdiction over election contests relating to his qualifications ends and the HRET’s own
jurisdiction begins. (Abayon v. House of Representatives Electoral Tribunal, G.R. No. 189466,
February 11, 2010)

The House of Representatives Electoral Tribunal (HRET) has no jurisdiction to

rule on the alleged nullity of naturalization of the father of a Member of the House.
A collateral attack on the citizenship of the father is not permissible. A petition for
quo warranto is not a means to reopen the naturalization proceedings for a
determination of the citizenship of the ascendant of a Member of the House.

In this petition, Vilando seeks to disqualify Limkaichong on the ground that she is a
Chinese citizen. To prove his point, he makes reference to the alleged nullity of the grant of
naturalization of Limkaichong’s father which, however, is not allowed as it would constitute a
collateral attack on the citizenship of the father. In our jurisdiction, an attack on a person's
citizenship may only be done through a direct action for its nullity.

The proper proceeding to assail the citizenship of Limkaichong’s father should be in

accordance with Section 18 of Commonwealth Act No. 473. As held in Limkaichong v. Comelec,
thus:

As early as the case of Queto v. Catolico, where the Court of First Instance judge motu
propio and not in the proper denaturalization proceedings called to court various grantees of
certificates of naturalization (who had already taken their oaths of allegiance) and cancelled
their certificates of naturalization due to procedural infirmities, the Court held that:

x x x It may be true that, as alleged by said respondents, that the proceedings for
naturalization were tainted with certain infirmities, fatal or otherwise, but that is beside the
point in this case. The jurisdiction of the court to inquire into and rule upon such infirmities
must be properly invoked in accordance with the procedure laid down by law. Such procedure is
the cancellation of the naturalization certificate. [Section 1(5), Commonwealth Act No. 63], in
the manner fixed in Section 18 of Commonwealth Act No. 473, hereinbefore quoted, namely,
"upon motion made in the proper proceedings by the Solicitor General or his representatives, or
by the proper provincial fiscal." In other words, the initiative must come from these officers,
presumably after previous investigation in each particular case.

Clearly, under law and jurisprudence, it is the State, through its representatives
designated by statute, that may question the illegally or invalidly procured certificate of
naturalization in the appropriate denaturalization proceedings. It is plainly not a matter that
may be raised by private persons in an election case involving the naturalized citizen’s
descendant.

xxx

True, the HRET has jurisdiction over quo warranto petitions, specifically over cases
challenging ineligibility on the ground of lack of citizenship. No less than the 1987 Constitution
vests the HRET the authority to be the sole judge of all contests relating to the election, returns
and qualifications of its Members. xxx

Time and again, this Court has acknowledged this sole and exclusive jurisdiction of the
HRET. xxx

Such power of the HRET, no matter how complete and exclusive, does not carry with it
the authority to delve into the legality of the judgment of naturalization in the pursuit of
disqualifying Limkaichong. To rule otherwise would operate as a collateral attack on the
citizenship of the father which, as already stated, is not permissible. The HRET properly
resolved the issue with the following ratiocination:

xxx We note that Jocelyn C. Limkaichong, not the father – Julio Ong Sy, is the
respondent in the present case. The Tribunal may not dwell on deliberating on the validity of
naturalization of the father if only to pursue the end of declaring the daughter as disqualified to
hold office.

Unfortunately, much as the Tribunal wants to resolve said issue, it cannot do so because
its jurisdiction is limited to the qualification of the proclaimed respondent Limkaichong, being a
sitting Member of the Congress.

49 | P a g e
 Evidently, there is no basis to oblige the Tribunal to reopen the naturalization
proceedings for a determination of the citizenship of the ascendant of respondent. A petition for
quo warranto is not a means to achieve that purpose. To rule on this issue in this quo warranto
proceeding will not only be a clear grave abuse of discretion amounting to a lack or excess of
jurisdiction, but also a blatant violation of due process on the part of the persons who will be
affected or who are not parties in this case.

Thus, the Office of the Solicitor General (OSG) wrote that "a collateral attack against a
judgment is generally not allowed, unless the judgment is void upon its face or its nullity is
apparent by virtue of its own recitals." Under the present situation, there is no evidence to show
that the judgment is void on its face. (Villando v. House of Representatives Electoral Tribunal,
G.R. Nos. 192147 & 192149, August 23, 2011)

The House of Representatives Electoral Tribunal (HRET) has no jurisdiction

over an action wherein an individual seeks to be seated as the second nominee of a
winning party list organization, as such action is not an election protest nor an
action for quo warranto.

In G.R. No. 179431 and G.R. No. 179432, Lokin seeks through mandamus to compel
respondent COMELEC to proclaim him as the official second nominee of CIBAC.

In G.R. No. 180443, Lokin assails Section 13 of Resolution No. 7804 promulgated on
January 12, 2007; and the resolution dated September 14, 2007 issued in E.M. No. 07-054
(approving CIBAC’s withdrawal of the nominations of Lokin, Tugna and Galang as CIBAC’s
second, third and fourth nominees, respectively, and the substitution by Cruz-Gonzales and
Borje in their stead, based on the right of CIBAC to change its nominees under Section 13 of
Resolution No. 7804). He alleges that Section 13 of Resolution No. 7804 expanded Section 8 of
R.A. No. 7941, the law that the COMELEC seeks to thereby implement.

In its comment, the COMELEC asserts that a petition for certiorari is an inappropriate
recourse in law due to the proclamation of Cruz-Gonzales as Representative and her assumption
of that office; that Lokin’s proper recourse was an electoral protest filed in the House of
Representatives Electoral Tribunal (HRET); and that, therefore, the Court has no jurisdiction
over the matter being raised by Lokin.

xxx

The Court has jurisdiction over the case

The COMELEC posits that once the proclamation of the winning party-list organization
has been done and its nominee has assumed office, any question relating to the election, returns
and qualifications of the candidates to the House of Representatives falls under the jurisdiction
of the HRET pursuant to Section 17, Article VI of the 1987 Constitution. Thus, Lokin should
raise the question he poses herein either in an election protest or in a special civil action for quo
warranto in the HRET, not in a special civil action for certiorari in this Court.

We do not agree.

An election protest proposes to oust the winning candidate from office. It is strictly a
contest between the defeated and the winning candidates, based on the grounds of electoral
frauds and irregularities, to determine who between them has actually obtained the majority of
the legal votes cast and is entitled to hold the office. It can only be filed by a candidate who has
duly filed a certificate of candidacy and has been voted for in the preceding elections.

A special civil action for quo warranto refers to questions of disloyalty to the State, or of
ineligibility of the winning candidate. The objective of the action is to unseat the ineligible
person from the office, but not to install the petitioner in his place. Any voter may initiate the
action, which is, strictly speaking, not a contest where the parties strive for supremacy because
the petitioner will not be seated even if the respondent may be unseated.

The controversy involving Lokin is neither an election protest nor an action for quo
warranto, for it concerns a very peculiar situation in which Lokin is seeking to be seated as the
second nominee of CIBAC. Although an election protest may properly be available to one party-
list organization seeking to unseat another party-list organization to determine which between
the defeated and the winning party-list organizations actually obtained the majority of the legal
votes, Lokin’s case is not one in which a nominee of a particular party-list organization thereby
wants to unseat another nominee of the same party-list organization. Neither does an action for

50 | P a g e
quo warranto lie, considering that the case does not involve the ineligibility and disloyalty of
Cruz-Gonzales to the Republic of the Philippines, or some other cause of disqualification for her.

Lokin has correctly brought this special civil action for certiorari against the COMELEC
to seek the review of the September 14, 2007 resolution of the COMELEC in accordance with
Section 7 of Article IX-A of the 1987 Constitution, notwithstanding the oath and assumption of
office by Cruz-Gonzales. The constitutional mandate is now implemented by Rule 64 of the 1997
Rules of Civil Procedure, which provides for the review of the judgments, final orders or
resolutions of the COMELEC and the Commission on Audit. As Rule 64 states, the mode of
review is by a petition for certiorari in accordance with Rule 65 to be filed in the Supreme Court
within a limited period of 30 days. Undoubtedly, the Court has original and exclusive
jurisdiction over Lokin’s petitions for certiorari and for mandamus against the COMELEC.
(Lokin v. Comelec, G.R. Nos. 179431-32, June 22, 2010)

The HRET, as the sole judge of all contests relating to the election, returns
and qualifications of members of the House of Representatives, may annul election
results if in its determination, fraud, terrorism or other electoral irregularities
existed to warrant the annulment. Because in doing so, it is merely exercising its
constitutional duty to ascertain who among the candidates received the majority of
the valid votes cast.

Article VI, Section 17 of the Constitution clearly spells out HRET's jurisdiction, to wit:

The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members. Each Electoral Tribunal shall be composed of
nine Members, three of whom shall be Justices of the Supreme Court to be designated by
the Chief Justice, and the remaining six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be chosen on the basis of proportional
representation from the political parties and the parties or organizations registered under
the party-list system represented therein. The senior Justice in the Electoral Tribunal shall
be its Chairman.

Abayon argues that the annulment of the election results in the contested precincts was
beyond the jurisdiction of the HRET as the sole judge of all contests relating to the election,
returns and qualifications of members of the House of Representatives. He claims that under
Section 4 of R.A. No. 7166, only the COMELEC En Banc has jurisdiction to annul elections or
declare a failure of elections. Daza, on the other hand, counters that the power of the HRET to
annul election results, where terrorism, fraud or other irregularities are existent, differs from the
power of the COMELEC to declare failure of elections or annul elections pursuant to the
provisions of R.A. No. 7166.

xxx

An Election Protest proposes to oust the winning candidate from office. It is strictly a
contest between the defeated and the winning candidates, based on the grounds of electoral
frauds or irregularities. It aims to determine who between them has actually obtained the
majority of the legal votes cast and, therefore, entitled to hold the office.

The Court agrees that the power of the HRET to annul elections differ from the power
granted to the COMELEC to declare failure of elections. The Constitution no less, grants the
HRET with exclusive jurisdiction to decide all election contests involving the members of the
House of Representatives, which necessarily includes those which raise the issue of fraud,
terrorism or other irregularities committed before, during or after the elections. To deprive the
HRET the prerogative to annul elections would undermine its constitutional fiat to decide
election contests. The phrase "election, returns and qualifications" should be interpreted in its
totality as referring to all matters affecting the validity of the contestee's title.

Consequently, the annulment of election results is but a power concomitant to the

HRET's constitutional mandate to determine the validity of the contestee' s title.

The power granted to the HRET by the Constitution is intended to be as complete and
unimpaired as if it had remained originally in the legislature. Thus, the HRET, as the sole judge
of all contests relating to the election, returns and qualifications of members of the House of
Representatives, may annul election results if in its determination, fraud, terrorism or other
electoral irregularities existed to warrant the annulment. Because in doing so, it is merely

51 | P a g e
exercising its constitutional duty to ascertain who among the candidates received the majority of
the valid votes cast.

To the Court's mind, the HRET had jurisdiction to determine whether there was
terrorism in the contested precincts. In the event that the HRET would conclude that terrorism
indeed existed in the said precincts, then it could annul the election results in the said precincts
to the extent of deducting the votes received by Daza and Abayon in order to remain faithful to
its constitutional mandate to determine who among the candidates received the majority of the
valid votes cast.

Moreover, the passage of R.A. No. 7166 cannot deprive the HRET of its incidental power
to annul elections in the exercise of its sole and exclusive authority conferred by no less than the
Constitution. xxx

xxx

In Sambarani v. COMELEC; the Court clarified the nature of the COMELEC's power to
declare failure of elections, to wit:

Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad
power to "enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall." Indisputably, the text and intent of
this constitutional provision is to give COMELEC all the necessary and incidental powers
for it to achieve its primordial objective of holding free, orderly, honest, peaceful and
credible elections.
The functions of the COMELEC under the Constitution are essentially executive
and administrative in nature. It is elementary in administrative law that "courts will not
interfere in matters which are addressed to the sound discretion of government agencies
entrusted with the regulation of activities coming under the special technical knowledge
and training of such agencies." The authority given to COMELEC to declare a
failure of elections and to call for special elections falls under its
administrative function.

Consequently, the difference between the annulment of elections by electoral tribunals

and the declaration of failure of elections by the COMELEC cannot be gainsaid. First, the former
is an incident of the judicial function of electoral tribunals while the latter is in the exercise of
the COMELEC's administrative function. Second, electoral tribunals only annul the election
results connected with the election contest before it whereas the declaration of failure of
elections by the COMELEC relates to the entire election in the concerned precinct or political
unit. As such, in annulling elections, the HRET does so only to determine who among the
candidates garnered a majority of the legal votes cast. The COMELEC, on the other hand,
declares a failure of elections with the objective of holding or continuing the elections, which
were not held or were suspended, or if there was one, resulted in a failure to elect. When
COMELEC declares a failure of elections, special elections will have to be conducted.

Hence, there is no overlap of jurisdiction because when the COMELEC declares a failure
of elections on the ground of violence, intimidation, terrorism or other irregularities, it does so
in its administrative capacity. In contrast, when electoral tribunals annul elections under the
same grounds, they do so in the performance of their quasi-judicial functions. (Abayon v. House
of Representatives, G.R. No. 222236, May 3, 2016)

The COMELEC has no jurisdiction over a petition for the expulsion from a
party-list organization of an incumbent party-list Member of the House of
Representatives. Section 17, Article VI of the 1987 Constitution endows the HRET
with jurisdiction to resolve questions on the qualifications of members of Congress.
In the case of party-list representatives, the HRET acquires jurisdiction over a
disqualification case upon proclamation of the winning party-list group, oath of the
nominee, and assumption of office as member of the House of Representatives.

The pivotal and interrelated issues before Us in this case involve the seemingly
elementary matter of the Commission on Elections' (COMELEC) jurisdiction over the expulsion
of a sitting party-list representative: from the House of Representatives, on the one hand; and
from his party-list organization, on the other.

The instant case involves two rival factions of the same party-list organization, the
Adhikaing Tinataguyod ng Kooperatiba (Ating Koop). One group is headed by petitioner Atty.
Isidro Q. Lico (the Lico Group), who represents the organization in the House of

52 | P a g e
Representatives, and the other group by Amparo T. Rimas (respondents herein, or the Rimas
Group).

xxx

We find that while the COMELEC correctly dismissed the Petition to expel petitioner
Lico from the House of Representatives for being beyond its jurisdiction, it nevertheless
proceeded to rule upon the validity of his expulsion from Ating Koop-a matter beyond its
purview.

The COMELEC notably characterized the Petition for expulsion of petitioner Lico from
the House of Representatives and for the succession of the second nominee as party-list
representative as a disqualification case. For this reason, the COMELEC dismissed the petition
for lack of jurisdiction, insofar as it relates to the question of unseating petitioner Lico from the
House of Representatives.

Section 17, Article VI of the 1987 Constitution endows the HRET with jurisdiction to
resolve questions on the qualifications of members of Congress. In the case of party-list
representatives, the HRET acquires jurisdiction over a disqualification case upon proclamation
of the winning party-list group, oath of the nominee, and assumption of office as member of the
House of Representatives. In this case, the COMELEC proclaimed Ating Koop as a winning
party-list group; petitioner Lico took his oath; and he assumed office in the House of
Representatives. Thus, it is the HRET, and not the COMELEC, that has jurisdiction over the
disqualification case. (Lico v. Commission on Elections, G. R. No. 205505, September 29, 2015)

The COMELEC also has no jurisdiction to decide on the validity of the

expulsion of an incumbent Member of the House of Representatives from the
winning party-list organization that he represents. His expulsion from the party-list
organization is not a mere intra-corporate matter because it necessarily affects his
title as member of Congress. A party-list nominee must have been, among others, a
bona fide member of the party or organization for at least ninety (90) days
preceding the day of the election. It is for the HRET to interpret the meaning of the
requirement of bona fide membership in a party-list organization. Under Section 17,
Article VI of the Constitution, the HRET is the sole judge of all contests when it
comes to qualifications of the members of the House of Representatives.

What We find to be without legal basis, however, is the action of the COMELEC in
upholding the validity of the expulsion of petitioner Lico from Ating Koop, despite its own ruling
that the HRET has jurisdiction over the disqualification issue. These findings already touch
upon the qualification requiring a party-list nominee to be a bona fide member of the party-list
group sought to be represented.

The COMELEC justified its Resolution on the merits of the expulsion, by relying on the
rule that it can decide intra-party matters as an incident of its constitutionally granted powers
and functions. It cited Lokin v. COMELEC, where We held that when the resolution of an intra-
party controversy is necessary or incidental to the performance of the constitutionally-granted
functions of the COMELEC, the latter can step in and exercise jurisdiction over the intra-party
matter. The Lokin case, however, involved nominees and not incumbent members of Congress.
In the present case, the fact that petitioner Lico was a member of Congress at the time of his
expulsion from Ating Koop removes the matter from the jurisdiction of the COMELEC.

The rules on intra-party matters and on the jurisdiction of the HRET are not parallel
concepts that do not intersect. Rather, the operation of the rule on intra-party matters is
circumscribed by Section 17 of Article VI of the 1987 Constitution and jurisprudence on the
jurisdiction of electoral tribunals. The jurisdiction of the HRET is exclusive. It is given full
authority to hear and decide the cases on any matter touching on the validity of the title of the
proclaimed winner.

In the present case, the Petition for petitioner Lico's expulsion from the House of
Representatives is anchored on his expulsion from Ating Koop, which necessarily affects his title
as member of Congress. A partylist nominee must have been, among others, a bona fide member
of the party or organization for at least ninety (90) days preceding the day of the election.
Needless to say, bona fide membership in the party-list group is a continuing qualification. We
have ruled that qualifications for public office, whether elective or not, are continuing
requirements. They must be possessed not only at the time of appointment or election, or of
assumption of office, but during the officer's entire tenure.
53 | P a g e
 This is not the first time that this Court has passed upon the issue of HRET jurisdiction
over the requirements for bona fide membership in a party-list organization. In Abayon v.
HRET, it was argued that the petitioners did not belong to the marginalized and under-
represented sectors that they should represent; as such, they could not be properly considered
bona fide members of their respective party-list organizations. The Court held that it was for the
HRET to interpret the meaning of the requirement of bona fide membership in a party-list
organization. It reasoned that under Section 17, Article VI of the Constitution, the HRET is the
sole judge of all contests when it comes to qualifications of the members of the House of
Representatives.

Consequently, the COMELEC failed to recognize that the issue on the validity of
petitioner Lico's expulsion from Ating Koop is integral to the issue of his qualifications to sit in
Congress. (Lico v. Commission on Elections, G. R. No. 205505, September 29, 2015)

JURISDICTION OF THE COMELEC

General Rule: The Supreme Court has no power to review on certiorari an

interlocutory order or even a final resolution issued by a Division of the COMELEC.

The governing provision is Section 7, Article IX of the 1987 Constitution, which provides:
Section 7. Each Commission shall decide by a majority vote of all its Members any case
or matter brought before it within sixty days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the
last pleading, brief, or memorandum required by the rules of the Commission or by the
Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order,
or ruling of each Commission may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from receipt of a copy thereof.

This provision, although it confers on the Court the power to review any decision, order
or ruling of the COMELEC, limits such power to a final decision or resolution of the COMELEC
en banc, and does not extend to an interlocutory order issued by a Division of the COMELEC.
Otherwise stated, the Court has no power to review on certiorari an interlocutory order or even a
final resolution issued by a Division of the COMELEC.

We have interpreted this provision to mean final orders, rulings and decisions of the
COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers. This decision
must be a final decision or resolution of the Comelec en banc, not of a division, certainly not an
interlocutory order of a division. The Supreme Court has no power to review via certiorari, an
interlocutory order or even a final resolution of a Division of the Commission on Elections.
(Cagas v. Comelec, G.R. No. 194139, January 24, 2012)

When the COMELEC is exercising its quasi-judicial powers such as in an

appeal from an election protest decided by a trial court, the Commission must
decide the case first in division, and en banc only upon motion for reconsideration.

When the COMELEC is exercising its quasi-judicial powers such as in the present case,
the Commission is constitutionally mandated to decide the case first in division, and en banc
only upon motion for reconsideration.

The Special Second Division of the COMELEC clearly acted with grave abuse of
discretion when it immediately transferred to the Commission en banc a case that ought to be
heard and decided by a division. Such action cannot be done without running afoul of Section 3,
Article IX-C of the 1987 Constitution.

It is the COMELEC division that has original appellate jurisdiction to resolve an appeal
to an election protest decided by a trial court. Conclusively, the Commission en banc acted
without jurisdiction when it heard and decided Dumpit’s appeal. (Eriguel v. Commission on
Elections, G.R. No. 190526, February 26, 2010)

A decision, order or resolution of a division of the Comelec must be reviewed

by the Comelec en banc via a motion for reconsideration before the final en banc
decision may be brought to the Supreme Court on certiorari.

54 | P a g e
 The mode by which a decision, order or ruling of the Comelec en banc may be elevated to
the Supreme Court is by the special civil action of certiorari under Rule 65 of the 1964 Revised
Rules of Court, now expressly provided in Rule 64, 1997 Rules of Civil Procedure, as amended.

Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that there be no
appeal, or any plain, speedy and adequate remedy in the ordinary course of law. A motion for
reconsideration is a plain and adequate remedy provided by law. Failure to abide by this
procedural requirement constitutes a ground for dismissal of the petition.

In like manner, a decision, order or resolution of a division of the Comelec must be

reviewed by the Comelec en banc via a motion for reconsideration before the final en banc
decision may be brought to the Supreme Court on certiorari. The pre-requisite filing of a motion
for reconsideration is mandatory. (Cagas v. Comelec, G.R. No. 194139, January 24, 2012)

Exception: The Supreme Court may take cognizance of a petition for certiorari
to review an interlocutory order issued by a Division of the COMELEC on the ground
of the issuance being made without jurisdiction or in excess of jurisdiction or with
grave abuse of discretion amounting to lack or excess of jurisdiction when it does
not appear to be specifically provided under the COMELEC Rules of Procedure that
the matter is one that the COMELEC en banc may sit and consider, or a Division is
not authorized to act, or the members of the Division unanimously vote to refer to
the COMELEC en banc.

There is no question, therefore, that the Court has no jurisdiction to take cognizance of
the petition for certiorari assailing the denial by the COMELEC First Division of the special
affirmative defenses of the petitioner. The proper remedy is for the petitioner to wait for the
COMELEC First Division to first decide the protest on its merits, and if the result should
aggrieve him, to appeal the denial of his special affirmative defenses to the COMELEC en banc
along with the other errors committed by the Division upon the merits. It is true that there may
be an exception to the general rule, as the Court conceded in Kho v. Commission on Elections.
In that case, the protestant assailed the order of the COMELEC First Division admitting an
answer with counter-protest belatedly filed in an election protest by filing a petition for
certiorari directly in this Court on the ground that the order constituted grave abuse of
discretion on the part of the COMELEC First Division. The Court granted the petition and
nullified the assailed order for being issued without jurisdiction, and explained the exception.

Under the exception, the Court may take cognizance of a petition for certiorari under
Rule 64 to review an interlocutory order issued by a Division of the COMELEC on the ground of
the issuance being made without jurisdiction or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction when it does not appear to be specifically
provided under the COMELEC Rules of Procedure that the matter is one that the COMELEC en
banc may sit and consider, or a Division is not authorized to act, or the members of the Division
unanimously vote to refer to the COMELEC en banc. Of necessity, the aggrieved party can
directly resort to the Court because the COMELEC en banc is not the proper forum in which the
matter concerning the assailed interlocutory order can be reviewed. (Cagas v. Comelec, G.R. No.
194139, January 24, 2012)

The COMELEC, in a petition to cancel or deny due course to a Certificate of

Candidacy (COC), cannot by itself decide the qualification or lack thereof of the
candidate. To disqualify a candidate there must be a declaration by a final judgment
of a competent court that the candidate sought to be disqualified "is guilty of or
found by the Commission to be suffering from any disqualification provided by law
or the Constitution." If a candidate cannot be disqualified without a prior finding
that he or she is suffering from a disqualification "provided by law or the
Constitution," neither can the certificate of candidacy be cancelled or denied due
course on grounds of false representations regarding his or her qualifications,
without a prior authoritative finding that he or she is not qualified, such prior
authority being the necessary measure by which the falsity of the representation
can be found.

The issue before the COMELEC is whether or not the COC of petitioner should be denied
due course or cancelled "on the exclusive ground" that she made in the certificate a false
material representation. The exclusivity of the ground should hedge in the discretion of the

55 | P a g e
COMELEC and restrain it from going into the issue of the qualifications of the candidate for the
position, if, as in this case, such issue is yet undecided or undetermined by the proper authority.
The COMELEC cannot itself, in the same cancellation case, decide the qualification or lack
thereof of the candidate. xxxx

[A]s presently required, to disqualify a candidate there must be a declaration by a final

judgment of a competent court that the candidate sought to be disqualified "is guilty of or found
by the Commission to be suffering from any disqualification provided by law or the
Constitution."

Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides
of one to the other. Both do not allow, are not authorizations, are not vestment of jurisdiction,
for the COMELEC to determine the qualification of a candidate. The facts of qualification must
beforehand be established in a prior proceeding before an authority properly vested with
jurisdiction. The prior determination of qualification may be by statute, by executive order or by
a judgment of a competent court or tribunal.

If a candidate cannot be disqualified without a prior finding that he or she is suffering

from a disqualification "provided by law or the Constitution," neither can the certificate of
candidacy be cancelled or denied due course on grounds of false representations regarding his
or her qualifications, without a prior authoritative finding that he or she is not qualified, such
prior authority being the necessary measure by which the falsity of the representation can be
found. The only exception that can be conceded are self-evident facts of unquestioned or
unquestionable veracity and judicial confessions. Such are, anyway, bases equivalent to prior
decisions against which the falsity of representation can be determined. (Poe-Llamanzares v.
Comelec, G.R. No. 221697, March 8, 2016)

COMELEC REGULATIONS

Why Comelec regulation of political speech on oversized tarpaulins posted on

private property by non-candidates during elections is void

Speech with political consequences enjoys a high degree of protection.

Tarpaulins put up by private individuals that contain statements of their approval or
criticisms of public officials’ vote on the RH Law, as part of these private individuals’
advocacy campaign against the RH Law, and not paid for by any candidate or
political party – are not election propaganda subject to Comelec regulation.

Every citizen’s expression with political consequences enjoys a high degree of protection.
Respondents argue that the tarpaulin is election propaganda, being petitioners’ way of
endorsing candidates who voted against the RH Law and rejecting those who voted for it. As
such, it is subject to regulation by COMELEC under its constitutional mandate. x x x

xxx

On the other hand, petitioners invoke their "constitutional right to communicate their
opinions, views and beliefs about issues and candidates." They argue that the tarpaulin was their
statement of approval and appreciation of the named public officials’ act of voting against the
RH Law, and their criticism toward those who voted in its favor. It was "part of their advocacy
campaign against the RH Law," which was not paid for by any candidate or political party. Thus,
"the questioned orders which . . . effectively restrain[ed] and curtail[ed] [their] freedom of
expression should be declared unconstitutional and void."

This court has held free speech and other intellectual freedoms as "highly ranked in our
scheme of constitutional values." These rights enjoy precedence and primacy. In Philippine
Blooming Mills, this court discussed the preferred position occupied by freedom of expression:
xxx

In the hierarchy of civil liberties, the rights of free expression and of assembly
occupy a preferred position as they are essential to the preservation and vitality of our civil
and political institutions; and such priority "gives these liberties the sanctity and the
sanction not permitting dubious intrusions." (Citations omitted)

xxx

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 We distinguish between political and commercial speech. Political speech refers to
speech "both intended and received as a contribution to public deliberation about some issue,"
"foster[ing] informed and civic minded deliberation." On the other hand, commercial speech has
been defined as speech that does "no more than propose a commercial transaction." The
expression resulting from the content of the tarpaulin is, however, definitely political speech. x x
x

While the tarpaulin may influence the success or failure of the named candidates and
political parties, this does not necessarily mean it is election propaganda. The tarpaulin was not
paid for or posted "in return for consideration" by any candidate, political party, or party-list
group.

xxx

Speech with political consequences is at the core of the freedom of expression and must
be protected by this court. (The Diocese of Bacolod v. Commission on Elections, G.R. No.
205728, January 21, 2015)

The prohibition on the posting by non-candidates of tarpaulins containing

opinions that may affect elections is a content-based regulation that is presumed
invalid unless the prohibition passes the clear and present danger test.

COMELEC contends that the order for removal of the tarpaulin is a content-neutral
regulation. The order was made simply because petitioners failed to comply with the maximum
size limitation for lawful election propaganda.

On the other hand, petitioners argue that the present size regulation is content-based as
it applies only to political speech and not to other forms of speech such as commercial speech.

xxx

The regulation may reasonably be considered as either content-neutral or content-based.

Regardless, the disposition of this case will be the same. Generally, compared with other forms
of speech, the proposed speech is content-based.

As pointed out by petitioners, the interpretation of COMELEC contained in the

questioned order applies only to posters and tarpaulins that may affect the elections because
they deliver opinions that shape both their choices. x x x

xxx

Content-based regulation bears a heavy presumption of invalidity, and this court has
used the clear and present danger rule as measure. Thus, in Chavez v. Gonzales:
A content-based regulation, however, bears a heavy presumption of invalidity and
is measured against the clear and present danger rule. The latter will pass constitutional
muster only if justified by a compelling reason, and the restrictions impose dare neither
overbroad nor vague.

Under this rule, "the evil consequences sought to be prevented must be substantive,
‘extremely serious and the degree of imminence extremely high.’" "Only when the challenged act
has overcome the clear and present danger rule will it pass constitutional muster, with the
government having the burden of overcoming the presumed unconstitutionality."

Even with the clear and present danger test, respondents failed to justify the regulation.
There is no compelling and substantial state interest endangered by the posting of the tarpaulin
as to justify curtailment of the right of freedom of expression. There is no reason for the state to
minimize the right of non-candidate petitioners to post the tarpaulin in their private property.
The size of the tarpaulin does not affect anyone else’s constitutional rights.

Content-based restraint or censorship refers to restrictions "based on the subject matter

of the utterance or speech."

xxx

We reiterate that the regulation involved at bar is content-based. The tarpaulin content is
not easily divorced from the size of its medium. (The Diocese of Bacolod v. Commission on
Elections, G.R. No. 205728, January 21, 2015)

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 Regulation of speech in the context of electoral campaigns made by non-
candidates or who do not speak as members of a political party which are principally
advocacies of a social issue during elections -- is unconstitutional. Regulation of
election paraphernalia involving speech of persons who are not candidates is valid,
if what is regulated is declarative speech that, taken as a whole, has for its principal
object the endorsement of a candidate only. The regulation (a) should be provided
by law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the primacy of the
guarantee of free expression, and (d) demonstrably the least restrictive means to
achieve that object. The regulation must only be with respect to the time, place, and
manner of the rendition of the message.

The message of petitioner, taken as a whole, is an advocacy of a social issue that it deeply
believes. x x x It primarily advocates a stand on a social issue; only secondarily — even almost
incidentally — will cause the election or non-election of a candidate.

The twin tarpaulins consist of satire of political parties. x x x It seeks to effectively

communicate a greater purpose, often used for "political and social criticism" "because it tears
down facades, deflates stuffed shirts, and unmasks hypocrisy. x x x

x x x The tarpaulin caricatures political parties and parodies the intention of those in the
list. Furthermore, the list of "Team Patay" is juxtaposed with the list of "Team Buhay" that
further emphasizes the theme of its author: Reproductive health is an important marker for the
church of petitioners to endorse.

The messages in the tarpaulins are different from the usual messages of candidates.
Election paraphernalia from candidates and political parties are more declarative and
descriptive and contain no sophisticated literary allusion to any social objective. Thus, they
usually simply exhort the public to vote for a person with a brief description of the attributes of
the candidate. For example "Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote
for [z], Iba kami sa Makati."

xxx

However, the requirements of the Constitution regarding equality in opportunity must

provide limits to some expression during electoral campaigns.

Thus clearly, regulation of speech in the context of electoral campaigns made by

candidates or the members of their political parties or their political parties may be regulated as
to time, place, and manner. x x x

Regulation of speech in the context of electoral campaigns made by persons who are not
candidates or who do not speak as members of a political party which are, taken as a whole,
principally advocacies of a social issue that the public must consider during elections is
unconstitutional. Such regulation is inconsistent with the guarantee of according the fullest
possible range of opinions coming from the electorate including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the choice of a candidate.

This does not mean that there cannot be a specie of speech by a private citizen which will
not amount to an election paraphernalia to be validly regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into

speech of persons who are not candidates or who do not speak as members of a political party if
they are not candidates, only if what is regulated is declarative speech that, taken as a whole, has
for its principal object the endorsement of a candidate only. The regulation (a) should be
provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the primacy of the guarantee of free
expression, and (d) demonstrably the least restrictive means to achieve that object. The
regulation must only be with respect to the time, place, and manner of the rendition of the
message. In no situation may the speech be prohibited or censored on the basis of its content.
For this purpose, it will not matter whether the speech is made with or on private property.

This is not the situation, however, in this case for two reasons. First, as discussed, the
principal message in the twin tarpaulins of petitioners consists of a social advocacy.

Second, x x x the present law x x x if applied to this case, will not pass the test of
reasonability. A fixed size for election posters or tarpaulins without any relation to the distance
from the intended average audience will be arbitrary. At certain distances, posters measuring 2
by 3 feet could no longer be read by the general public and, hence, would render speech
58 | P a g e
meaningless. It will amount to the abridgement of speech with political consequences. (The
Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January 21, 2015)

The act of the Comelec in restraining private individuals from posting

tarpaulins expressing political views in their own private property is an
impermissible encroachment on the right to property. The Comelec prohibition is a
deprivation of property without due process.

Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private
property of petitioners. Their right to use their property is likewise protected by the
Constitution.

xxx

This court in Adiong held that a restriction that regulates where decals and stickers
should be posted is "so broad that it encompasses even the citizen’s private property."
Consequently, it violates Article III, Section 1 of the Constitution which provides that no person
shall be deprived of his property without due process of law. This court explained:
Property is more than the mere thing which a person owns, it includes the right to
acquire, use, and dispose of it; and the Constitution, in the 14th Amendment, protects these
essential attributes.

xxx

This court ruled that the regulation in Adiong violates private property rights:
The right to property may be subject to a greater degree of regulation but when this
right is joined by a "liberty" interest, the burden of justification on the part of the
Government must be exceptionally convincing and irrefutable. The burden is not met in
this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the
posting or display of election propaganda in any place, whether public or private, except in
the common poster areas sanctioned by COMELEC. This means that a private person
cannot post his own crudely prepared personal poster on his own front door or on a post in
his yard. While the COMELEC will certainly never require the absurd, there are no limits to
what overzealous and partisan police officers, armed with a copy of the statute or
regulation, may do.

Respondents ordered petitioners, who are private citizens, to remove the tarpaulin from
their own property. The absurdity of the situation is in itself an indication of the
unconstitutionality of COMELEC’s interpretation of its powers.

Freedom of expression can be intimately related with the right to property. There may be
no expression when there is no place where the expression may be made. COMELEC’s
infringement upon petitioners’ property rights as in the present case also reaches out to
infringement on their fundamental right to speech.

Respondents have not demonstrated that the present state interest they seek to promote
justifies the intrusion into petitioners’ property rights. Election laws and regulations must be
reasonable. It must also acknowledge a private individual’s right to exercise property rights.
Otherwise, the due process clause will be violated.

x x x Consistent with our ruling in Adiong, we find that the act of respondents in seeking
to restrain petitioners from posting the tarpaulin in their own private property is an
impermissible encroachments on the right to property. (The Diocese of Bacolod v. Commission
on Elections, G.R. No. 205728, January 21, 2015)

The Comelec’s general role includes ensuring equal opportunities and reduce
spending among candidates and their registered political parties. It is not to
regulate or limit the speech of the electorate in the electoral exercise. Expression by
the electorate on contemporary issues is a form of speech protected as a
fundamental and primordial right by our Constitution.

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 the
speech of the electorate as it strives to participate in the electoral exercise.

59 | P a g e
 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

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. x x x

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 x x x is protected as a fundamental and primordial right by our

Constitution. (The Diocese of Bacolod v. Commission on Elections, G.R. No. 205728, January
21, 2015)

Why the aggregate-based time air-time limits on campaign advertising is

invalid

Restriction on freedom of speech and of the press: The Comelec’s rule --

limiting the broadcast and radio advertisements of candidates and political parties
for national election positions to an aggregate total of one hundred twenty (120)
minutes and one hundred eighty (180) minutes for political campaigns or
advertisements -- is unreasonable and arbitrary as it unreasonably restricts the
freedom of speech and of the press. It unduly restricts and constrains the ability of
candidates and political parties to reach out and communicate with the people.

Section 9 (a) of COMELEC Resolution No. 9615 on airtime limits also goes against the
constitutional guaranty of freedom of expression, of speech and of the press.

The guaranty of freedom to speak is useless without the ability to communicate and
disseminate what is said. And where there is a need to reach a large audience, the need to access
the means and media for such dissemination becomes critical. This is where the press and
broadcast media come along. At the same time, the right to speak and to reach out would not be
meaningful if it is just a token ability to be heard by a few. It must be coupled with substantially
reasonable means by which the communicator and the audience could effectively interact.
Section 9 (a) of COMELEC Resolution No. 9615, with its adoption of the "aggregate-based"
airtime limits unreasonably restricts the guaranteed freedom of speech and of the press.

Political speech is one of the most important expressions protected by the Fundamental
Law. "[F]reedom of speech, of expression, and of the press are at the core of civil liberties and
have to be protected at all costs for the sake of democracy." Accordingly, the same must remain
unfettered unless otherwise justified by a compelling state interest.

xxx

Section 9 (a) of COMELEC Resolution No. 9615 comes up with what is challenged as
being an unreasonable basis for determining the allowable air time that candidates and political
parties may avail of. Petitioner GMA came up with its analysis of the practical effects of such a
regulation:
5.8. Given the reduction of a candidate's airtime minutes in the New Rules,
petitioner GMA estimates that a national candidate will only have 120 minutes to utilize for
his political advertisements in television during the whole campaign period of 88 days, or
will only have 81.81 seconds per day TV exposure allotment. If he chooses to place his
political advertisements in the 3 major TV networks in equal allocation, he will only have
27.27 seconds of airtime per network per day. This barely translates to 1 advertisement spot
on a 30-second spot basis in television.

5.9. With a 20-hour programming per day and considering the limits of a station's
coverage, it will be difficult for 1 advertising spot to make a sensible and feasible

60 | P a g e
 communication to the public, or in political propaganda, to "make known [a candidate's]
qualifications and stand on public issues".

xxx

The Court agrees. The assailed rule on "aggregate-based" airtime limits is unreasonable
and arbitrary as it unduly restricts and constrains the ability of candidates and political parties
to reach out and communicate with the people. Here, the adverted reason for imposing the
"aggregate-based" airtime limits - leveling the playing field - does not constitute a compelling
state interest which would justify such a substantial restriction on the freedom of candidates and
political parties to communicate their ideas, philosophies, platforms and programs of
government. x x x

It is also particularly unreasonable and whimsical to adopt the aggregate-based time

limits on broadcast time when we consider that the Philippines is not only composed of so many
islands. There are also a lot of languages and dialects spoken among the citizens across the
country. Accordingly, for a national candidate to really reach out to as many of the electorates as
possible, then it might also be necessary that he conveys his message through his
advertisements in languages and dialects that the people may more readily understand and
relate to. To add all of these airtimes in different dialects would greatly hamper the ability of
such candidate to express himself - a form of suppression of his political speech.

Respondent itself states that "[t]elevision is arguably the most cost effective medium of
dissemination. Even a slight increase in television exposure can significantly boost a candidate's
popularity, name recall and electability." If that be so, then drastically curtailing the ability of a
candidate to effectively reach out to the electorate would unjustifiably curtail his freedom to
speak as a means of connecting with the people. (GMA Network v. Commission on Elections,
G.R. No. 205357, September 2, 2014)

Violation of the right to suffrage: The COMELEC’s aggregate time-limit rule

[rule limiting the broadcast and radio advertisements of candidates and political
parties for national election positions to an aggregate total of one hundred twenty
(120) minutes and one hundred eighty (180) minutes for political campaigns or
advertisements] violate the people’s right to suffrage by restricting the right of the
people to be adequately informed for the intelligent exercise of their right to
determine their own destiny.

Section 9 (a) of Resolution 9615 is violative of the people's right to suffrage.

Fundamental to the idea of a democratic and republican state is the right of the people to
determine their own destiny through the choice of leaders they may have in government. Thus,
the primordial importance of suffrage and the concomitant right of the people to be adequately
informed for the intelligent exercise of such birthright. (GMA Network v. Commission on
Elections, G.R. No. 205357, September 2, 2014)

Why the Comelec prohibition on posting of an election campaign material

during an election period in Public Utility Vehicles (PUVs) and transport terminals is
void

The Comelec prohibition on posting of an election campaign material during

an election period in Public Utility Vehicles (PUVs) and transport terminals --
constitutes a prior restraint on the right to free expression. Prior restraints are
presumed invalid.

Free speech may be identified with the liberty to discuss publicly and truthfully any
matter of public concern without prior restraint or censorship and subsequent punishment.
Prior restraint refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination. Freedom from prior restraint is
largely freedom from government censorship of publications, whatever the form of censorship,
and regardless of whether it is wielded by the executive, legislative or judicial branch of the
government. Any system of prior restraints of expression comes to this Court bearing a heavy
presumption against its validity.

Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 unduly
infringe on the fundamental right of the people to freedom of speech. Central to the prohibition
61 | P a g e
is the freedom of individuals, i.e., the owners of PUVs and private transport terminals, to
express their preference, through the posting of election campaign material in their property,
and convince others to agree with them.

Pursuant to the assailed provisions of Resolution No. 9615, posting an election campaign
material during an election period in PUVs and transport terminals carries with it the penalty of
revocation of the public utility franchise and shall make the owner thereof liable for an election
offense.

The prohibition constitutes a clear prior restraint on the right to free expression of the
owners of PUVs and transport terminals. As a result of the prohibition, owners of PUVs and
transport terminals are forcefully and effectively inhibited from expressing their preferences
under the pain of indictment for an election offense and the revocation of their franchise or
permit to operate.

It is now deeply embedded in our jurisprudence that freedom of speech and of the press
enjoys a preferred status in our hierarchy of rights. The rationale is that the preservation of
other rights depends on how well we protect our freedom of speech and of the press. x x x

Thus, in Adiong v. COMELEC, the Court struck down the COMELEC’s prohibition
against the posting of decals and stickers on "mobile places." The Court ratiocinated that:

Significantly, the freedom of expression curtailed by the questioned prohibition is

not so much that of the candidate or the political party. The regulation strikes at the
freedom of an individual to express his preference and, by displaying it on his car, to
convince others to agree with him. A sticker may be furnished by a candidate but once the
car owner agrees to have it placed on his private vehicle, the expression becomes a
statement by the owner, primarily his own and not of anybody else.

(1-United Transport Koalisyon [1-Utak] v. Commission on Elections, G.R. No. 206020,

April 14, 2015)

A content-neutral regulation, which merely controls the time, place or

manner of speech, is valid if the following requisites concur: first, the government
regulation is within the constitutional power of the Government; second, it furthers
an important or substantial governmental interest; third, the governmental interest
is unrelated to the suppression of free expression; and fourth, the incidental
restriction on freedom of expression is no greater than is essential to the
furtherance of that interest. Prohibiting owners of PUVs and transport terminals
from posting election campaign materials is an invalid content-neutral regulation
because, first, it is not within the constitutionally delegated power of the Comelec,
and second, there is no necessity to restrict the right to free speech of the owners of
PUVs and transport terminals.

The COMELEC claims that while Section 7(g) items (5) and (6) of Resolution No. 9615
may incidentally restrict the right to free speech of owners of PUVs and transport terminals, the
same is nevertheless constitutionally permissible since it is a valid content-neutral regulation.

The Court does not agree.

A content-neutral regulation, i.e., which is merely concerned with the incidents of the
speech, or one that merely controls the time, place or manner, and under well-defined
standards, is constitutionally permissible, even if it restricts the right to free speech, provided
that the following requisites concur: first, the government regulation is within the constitutional
power of the Government; second, it furthers an important or substantial governmental interest;
third, the governmental interest is unrelated to the suppression of free expression; and fourth,
the incidental restriction on freedom of expression is no greater than is essential to the
furtherance of that interest.

Section 7(g) items (5) and (6) of Resolution No. 9615 are content-neutral regulations
since they merely control the place where election campaign materials may be posted. However,
the prohibition is still repugnant to the free speech clause as it fails to satisfy all of the requisites
for a valid content-neutral regulation.

It is conceded that Resolution No. 9615, including the herein assailed provisions,
furthers an important and substantial governmental interest, i.e., ensuring equal opportunity,
time and space among candidates aimed at the holding of free, orderly, honest, peaceful, and

62 | P a g e
credible elections. It is further conceded that the governmental interest in imposing the said
prohibition is unrelated to the suppression of free expression. However, Section 7(g) items (5)
and (6), in relation to Section 7(f), of Resolution No. 9615, are not within the constitutionally
delegated power of the COMELEC under Section 4, Article IX-C of the Constitution. Also, there
is absolutely no necessity to restrict the right to free speech of the owners of PUVs and transport
terminals. (1-United Transport Koalisyon v. Commission on Elections, G.R. No. 206020, April
14, 2015)

Prohibiting owners of PUVs and transport terminals from posting election

campaign materials cannot be justified under the captive-audience doctrine. The
commuters are not forced or compelled to read the election campaign materials
posted on PUVs and transport terminals, nor are they incapable of declining to
receive the messages contained therein.

The COMELEC further points out that PUVs [Public Utility Vehicles] and transport
terminals hold a "captive audience" – commuters who have no choice but be subjected to the
blare of political propaganda. The COMELEC further claims that while owners of privately
owned PUVs and transport terminals have a right to express their views to those who wish to
listen, they have no right to force their message upon an audience incapable of declining to
receive it.

The COMELEC’s claim is untenable.

The captive-audience doctrine states that when a listener cannot, as a practical matter,
escape from intrusive speech, the speech can be restricted. The "captive-audience" doctrine
recognizes that a listener has a right not to be exposed to an unwanted message in
circumstances in which the communication cannot be avoided.

A regulation based on the captive-audience doctrine is in the guise of censorship, which

undertakes selectively to shield the public from some kinds of speech on the ground that they
are more offensive than others. Such selective restrictions have been upheld only when the
speaker intrudes on the privacy of the home or the degree of captivity makes it either impossible
or impractical for the unwilling viewer or auditor to avoid exposure.

In Consolidated Edison Co. v. Public Service Commission, the Supreme Court of the
United States of America (U.S. Supreme Court) struck down the order of New York Public
Service Commission, which prohibits public utility companies from including inserts in monthly
bills discussing controversial issues of public policy. The U.S. Supreme Court held that "[t]he
prohibition cannot be justified as being necessary to avoid forcing appellant’s views on a captive
audience, since customers may escape exposure to objectionable material simply by throwing
the bill insert into a wastebasket."

Similarly, in Erznoznik v. City of Jacksonville, the U.S. Supreme Court nullified a city
ordinance, which made it a public nuisance and a punishable offense for a drive-in movie
theater to exhibit films containing nudity, when the screen is visible from a public street or
place. The U.S. Supreme Court opined that the degree of captivity is not so great as to make it
impracticable for an unwilling viewer to avoid exposure x x x.

Thus, a government regulation based on the captive-audience doctrine may not be

justified if the supposed "captive audience" may avoid exposure to the otherwise intrusive
speech. The prohibition under Section 7(g) items (5) and (6) of Resolution No. 9615 is not
justified under the captive-audience doctrine; the commuters are not forced or compelled to
read the election campaign materials posted on PUVs and transport terminals. Nor are they
incapable of declining to receive the messages contained in the posted election campaign
materials since they may simply avert their eyes if they find the same unbearably intrusive. (1-
United Transport Koalisyon v. Commission on Elections, G.R. No. 206020, April 14, 2015)

Why the Comelec’s regulation requiring disclosure of names of those who

commission or pay for election surveys, including subscribers of survey firms -- is
valid

Election surveys may influence voter preferences. When left unregulated,

election surveys can undermine the holding of "fair" elections, which is the purpose
of the Fair Election act. The Fair Election Act aims to realize the policy under the
1987 Constitution to guarantee equal access to opportunities for public service and
reduce political inequalities.

63 | P a g e
 We sustain the validity of Resolution No. 9674. The names of those who commission or
pay for election surveys, including subscribers of survey firms, must be disclosed pursuant to
Section 5.2(a) of the Fair Election Act. This requirement is a valid regulation in the exercise of
police power and effects the constitutional policy of "guarantee[ing] equal access to
opportunities for public service[.]" Section 5.2(a)’s requirement of disclosing subscribers neither
curtails petitioners’ free speech rights nor violates the constitutional proscription against the
impairment of contracts.

xxx

Republic Act No. 9006 was adopted with the end in mind of "guarantee[ing] or
ensur[ing] equal opportunity for public service" x x x.

[T]he Fair Election Act provides means to realize the policy articulated in Article II,
Section 26 of the 1987 Constitution to "guarantee equal access to opportunities for public
service[.]" x x x

Apart from making real Article II, Section 26’s constitutional policy, the Fair Election Act
represents the legislature’s compliance with the requirement of Article XIII, Section 1:
"Congress . . . give[s] highest priority to the enactment of measures that . . . reduce . . . political
inequalities . . . by equitably diffusing wealth and political power for the common good."

xxx

x x x [T]he inclusion of published election surveys in a statute that regulates election

propaganda and other means through which candidates may shape voter preferences is itself
telling of the recognition that published election surveys, too, may influence voter preferences.
This inclusion is similarly telling of a recognition that, left unregulated, election surveys can
undermine the purposes of ensuring "fair" elections. x x x (Social Weather Station v.
Commission on Elections, G.R. No. 208062, April 27, 2015)

Election surveys may tend to shape voter preferences. When published,

election surveys partake of the nature of election propaganda subject to Comelec
regulation. The requirement of disclosing the names of subscribers to election
surveys is valid regulation of declarative speech by private entities in the context of
an election campaign because 1) it has basis in a statute, 2) it furthers not just an
important or substantial state interest but even a compelling one, which is to
guarantee equal access to opportunities for public service, and 3) narrowly tailored
to meet the objective and is least restrictive means to achieve that objective.

Concededly, what are involved here are not election propaganda per se. Election surveys,
on their face, do not state or allude to preferred candidates. x x x When published, however, the
tendency to shape voter preferences comes into play. In this respect, published election surveys
partake of the nature of election propaganda. x x x Hence, Section 5.2 of the Fair Election Act’s
regulation of published surveys.

We thus proceed to evaluate Resolution No. 9674’s requirement of disclosing the names
of subscribers to election surveys in light of the requisites for valid regulation of declarative
speech by private entities in the context of an election campaign:

First, the text of Section 5.2(a) of the Fair Election Act supports the inclusion of
subscribers among those persons who "paid for the survey[.]" Thus, Resolution No. 9674 is a
regulation finding basis in statute.

COMELEC correctly points out that in Section 5.2(a) of the Fair Election Act, those who
"commissioned" and those who "paid for" the published survey are separated by the disjunctive
term "or." x x x

The second class makes no distinction between those who pay for a specific survey and
those who pay for election surveys in general. Indeed, subscribers do not escape the burden
ofpaying for the component articles comprising a subscription. x x x

Second, not only an important or substantial state interest but even a compelling one
reasonably grounds Resolution No. 9674’s inclusion of subscribers to election surveys. Thus,
regardless of whether an intermediate or strict standard is used, Resolution No. 9674 passes
scrutiny.

It is settled that constitutionally declared principles are a compelling state interest:

64 | P a g e
 Compelling governmental interest would include constitutionally declared principles.
xxx

[T]he regulation of election surveys effects the constitutional policy, articulated in Article
II, Section 26, and reiterated and affirmed in Article IX-C, Section 4 and Article XIII, Section 26
of the 1987 Constitution, of "guarantee[ing] equal access to opportunities for public service[.]"

Resolution No. 9674 addresses the reality that an election survey x x x can be a means to
shape the preference of voters and, thus, the outcome of elections. x x x Accordingly, the
imperative of "fair" elections impels their regulation.

Lastly, Resolution No. 9674 is "narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the primacy of the guarantee of free
expression" and is "demonstrably the least restrictive means to achieve that object."

While it does regulate expression (i.e., petitioners’ publication of election surveys), it

does not go so far as to suppress desired expression. There is neither prohibition nor censorship
specifically aimed at election surveys. The freedom to publish election surveys remains. All
Resolution No. 9674 does is articulate a regulation as regards the manner of publication, that is,
that the disclosure of those who commissioned and/or paid for, including those subscribed to,
published election surveys must be made. (Social Weather Station v. Commission on Elections,
G.R. No. 208062, April 7, 2015)

The Comelec’s regulation requiring disclosure of names of those who

commission or pay for election surveys is not a prior restraint as the disclosure
requirement kicks in only upon, not prior to, publication.

Prior restraint refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination. Freedom from prior restraint is
largely freedom from government censorship of publications, whatever the form of censorship,
and regardless of whether it is wielded by the executive, legislative or judicial branch of the
government. Thus, it precludes governmental acts that required approval of a proposal to
publish; licensing or permits as prerequisites to publication including the payment of license
taxes for the privilege to publish; and even injunctions against publication. Even the closure of
the business and printing offices of certain newspapers, resulting in the discontinuation of their
printing and publication, are deemed as previous restraint or censorship. Any law or official that
requires some form of permission to be had before publication can be made, commits an
infringement of the constitutional right, and remedy can be had at the courts.

The very definition of "prior restraint" negates petitioner’s assertions. Resolution No.
9674 poses no prohibition or censorship specifically aimed at election surveys. Apart from
regulating the manner of publication, petitioners remain free to publish election surveys.
COMELEC correctly points out that "[t]he disclosure requirement kicks in only upon, not prior
to, publication."

In any case, the requirement of disclosing subscribers is neither unduly burdensome nor
onerous. Prior to the promulgation of Resolution No. 9674, survey firms are already understood
to be bound by the requirement to disclose those who commission or pay for published election
surveys. Petitioners have been complying with this without incident since the Fair Election Act
was enacted in 2001. After more than a decade of compliance, it is odd for petitioners to
suddenly assail the disclosure requirement as unduly burdensome or onerous. (Social Weather
Station v. Commission on Elections, G.R. No. 208062, April 7, 2015)

The Comelec rule on mandatory right to reply is valid: The Constitution itself
mandates the right to reply. Moreover, radio and TV broadcasting companies do not
own the airwaves but are merely given the temporary privilege of using them. The
exercise of the privilege may reasonably be burdened with the performance by the
grantee of some form of public service.

Section 14 of Resolution No. 9615, as revised by Resolution No. 9631, provides:

SECTION 14. Right to Reply. - All registered political parties, party-list groups or
coalitions and bona fide candidates shall have the right to reply to charges published or
aired against them. The reply shall be given publicity by the newspaper, television, and/or
radio station which first printed or aired the charges with the same prominence or in the
same page or section or in the same time slot as the first statement. x x x

65 | P a g e
 The Constitution itself provides as part of the means to ensure free, orderly, honest, fair
and credible elections, a task addressed to the COMELEC to provide for a right to reply. Given
that express constitutional mandate, it could be seen that the Fundamental Law itself has
weighed in on the balance to be struck between the freedom of the press and the right to reply.

Moreover, as already discussed by the Court in Telecommunications and Broadcast

Attorneys of the Philippines, Inc. v. Commission on Elections.
In truth, radio and television broadcasting companies, which are given franchises,
do not own the airwaves and frequencies through which they transmit broadcast signals
and images. They are merely given the temporary privilege of using them. Since a franchise
is a mere privilege, the exercise of the privilege may reasonably be burdened with the
performance by the grantee of some form of public service.

(GMA Network v. Commission on Elections, G.R. No. 205357, September 2, 2014)

DISQUALIFICATION OF CANDIDATES

The grounds for disqualification of a candidate are found under Sections 12

and 68 of Batas Pambansa Blg. 881, as amended, otherwise known as the Omnibus
Election Code of the Philippines, as well as Section 40 of the Local Government Code
(LGC). Violation of the three-term limit rule provided under the Constitution and the
LGC; and suspension from office as a result of an administrative case are not for a
candidate's disqualification under these laws. Suspension from office is indeed not a
ground for a petition for disqualification as Section 40 (b) of the LGC clearly speaks
of removal from office as a result of an administrative offense. A violation of the
three-term limit rule is not included among the grounds for disqualification, but a
ground for a petition to deny due course to or cancel certificate of candidacy.

The grounds for disqualification of a candidate are found under Sections 12 and 68 of
Batas Pambansa Blg. 881, as amended, otherwise known as the Omnibus Election Code of the
Philippines, as well as Section 40 of the Local Government Code, which respectively provide:

SEC. 12. Disqualifications. Any person who has been declared by

competent authority insane or incompetent, or has been sentenced by final
judgment for subversion, insurrection, rebellion, or for any offense for which he
has been sentenced to a penalty of more than eighteen months or for a crime
involving moral turpitude, shall be disqualified to be a candidate and to hold
any office, unless he has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five years
from his service or sentence, unless within the same period he again becomes
disqualified.

xxxx
SEC. 68. Disqualifications. Any candidate who, in an action or protest in
which he is a party is declared by final decision of a competent court guilty of,
or found by the Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials
performing electoral functions; (b) committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an amount in excess of that
allowed by this Code; (d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections
80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be
disqualified from continuing as a candidate, or if he has been elected, from
holding the office. Any person who is a permanent resident of or an immigrant
to a foreign country shall not be qualified to run for any, elective office under
this Code, unless said person has waived his status as a permanent resident or
immigrant of a foreign country in accordance with the residence requirement
provided for in the election laws.
xxxx
SECTION 40. Disqualifications - The following persons are disqualified
from running for any elective local position:

66 | P a g e
 (a) Those sentence by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of imprisonment,
within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case; .
(c) Those convicted by final judgment for violating the oath of allegiance
to the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired
the right to reside abroad and continue to avail of the same right after the
effectivity of this Code; and
(g) The insane or feeble-minded.

Petitioner filed the petition for disqualification of respondent on the grounds that he
allegedly violated the three-term limit rule provided under the Constitution and the LGC; and
that he was suspended from office as a result of an administrative case. Notably, however, a
reading of the grounds enumerated under the above-quoted provisions for a candidate's
disqualification does not include the two grounds relied upon by petitioner. Thus, the
COMELEC Second Division was correct when it found that the petition was not based on any of
the grounds for disqualification as enumerated in the foregoing statutory provisions.

Respondent's suspension from office is indeed not a ground for a petition for
disqualification as Section 40 (b) clearly speaks of removal from office as a result of an
administrative offense that would disqualify a candidate from running for any elective local
position. In fact, the penalty of suspension cannot be a bar to the candidacy of the respondent so
suspended as long as he meets the qualifications for the office as provided under Section 66(b)
of R.A. No. 7160, xxxx. (Albania v. Comelec, June 6, 2017, G.R. No. 226792)

A violation of the three-term limit rule is not included among the grounds for
disqualification under Sections 12 and 68 of the Omnibus Election Code of the
Philippines, as well as Section 40 of the Local Government Code. However, it is a
ground for a petition to deny due course to or cancel certificate of candidacy, which
must be filed not later than twenty-five days from the time of the filing of the
certificate of candidacy.

The three-term limit rule is embodied in Section 8 of Article X of the Constitution, to wit:

Section 8. 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 the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for
which he was elected.

which is restated in Section 43 of the Local Government Code, thus:

Section 43. Term of Office. - (a) x x x

(b) No local elective official shall serve for more than three (3)
consecutive terms in the same position. Voluntary renunciation of the office for
any length of time shall not be considered as an interruption in the continuity of
service for the full term for which the elective official concerned was elected.

Section 74 of the OEC provides that the certificate of candidacy shall state that the
person filing it is announcing his candidacy for the office stated therein and that he is eligible for
said office. The word "eligible" in Section 74 means having the right to run for elective public
office, that is, having all the qualifications and none of the ineligibilities to run for the public
office. And We had held that a violation of the three-term limit rule is an ineligibility which is a
proper ground for a petition to deny due course to or to cancel a COC under Section 78 of the
Omnibus Election Code, to wit:

Sec. 78. Petition to deny due course to or cancel a certificate of

candidacy. - A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by the person exclusively on the ground
that any material representation contained therein as required under Section 74
hereof is false. The petition may be filed at any time not later than twenty-five
days from the time of the filing of the certificate of candidacy and shall be
67 | P a g e
 decided, after due notice and hearing, not later than fifteen days before the
election.

As the petition filed is indeed a petition under Section 78 of the OEC, the filing of the
same must comply with the period prescribed therein, i.e., the filing of the same must be made
not later than twenty-five days from the time of the filing of the certificate of candidacy. In this
case, respondent filed his COC for Governor of Camarines Norte for the 2016 elections on
October 16, 2015, and he had 25 days therefrom to file the petition for denial of due course or
cancellation of COC on the ground of violation of the three-term limit rule, which fell on
November 10, 2015. However, the petition was filed only on November 13, 2015 which was
already beyond the period to file the same; thus, find no grave abuse of discretion committed by
the COMELEC in dismissing the petition for being filed out of time. (Albania v. Comelec, June
6, 2017, G.R. No. 226792)

Petitions to question the qualifications of local candidates: 1) Petition to

deny due course or cancel a certificate of candidacy under Section 28 of the OEC;
and 2) Petition for quo warranto under Section 253 of the OEC after proclamation of
the candidate

The fact that the petitioner’s qualifications were not questioned when she filed
certificates of candidacy for 2007 and 2010 elections cannot operate as an estoppel to the
petition for quo warranto before the RTC.

Under the Batas Pambansa Bilang 881 (Omnibus Election Code), there are two instances
where a petition questioning the qualifications of a registered candidate to run for the office for
which his certificate of candidacy was filed can be raised, to wit:

(1) Before election, pursuant to Section 78 thereof which provides that:

Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. – A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any
person exclusively on the ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five
days from the time of the filing of the certificate of candidacy and shall be decided, after due notice
and hearing, not later than fifteen days before the election; and

(2) After election, pursuant to Section 253 thereof, viz:

Sec. 253. Petition for quo warranto. – Any voter contesting the election of any Member of
the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of
disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the
Commission within ten days after the proclamation of the results of the election.

Hence, if a person qualified to file a petition to disqualify a certain candidate fails to file
the petition within the twenty-five (25)-day period prescribed by Section 78 of the Omnibus
Election Code for whatever reasons, the elections laws do not leave him completely helpless as
he has another chance to raise the disqualification of the candidate by filing a petition for quo
warranto within ten (10) days from the proclamation of the results of the election, as provided
under Section 253 of the Omnibus Election Code.

The above remedies were both available to the private respondents and their failure to
utilize Section 78 of the Omnibus Election Code cannot serve to bar them should they opt to file,
as they did so file, a quo warranto petition under Section 253. (Sobejana-Condon v.
Commission on Elections, G.R. No. 198742, August 10, 2012)

Effect of a void certificate of candidacy: No valid candidate, no valid votes;

votes for him are stray votes and should not be counted. The qualified person who
obtained the highest number of votes must be proclaimed.

A void certificate of candidacy on the ground of ineligibility that existed at the time of the
filing of the certificate of candidacy can never give rise to a valid candidacy, and much less to
valid votes. Jalosjos’ certificate of candidacy was cancelled because he was ineligible from the
start to run for Mayor. Whether his certificate of candidacy is cancelled before or after the
elections is immaterial because the cancellation on such ground means he was never a valid
candidate from the very beginning, his certificate of candidacy being void ab initio. Jalosjos’
ineligibility existed on the day he filed his certificate of candidacy, and the cancellation of his
certificate of candidacy retroacted to the day he filed it. Thus, Cardino ran unopposed. There
was only one qualified candidate for Mayor in the May 2010 elections – Cardino – who received
68 | P a g e
the highest number of votes. (Jalosjos v. Commission on Elections, G.R. No. 193237, October 9,
2012)

The rule that the second-placer cannot be proclaimed winner if the first-
placer is disqualified or declared ineligible should be limited to situations where the
certificate of candidacy of the first-placer was valid at the time of filing, but
subsequently cancelled for a violation of law that took place, or a legal impediment
that took effect, after the filing of the CoC.

Decisions of this Court holding that the second-placer cannot be proclaimed winner if
the first-placer is disqualified or declared ineligible should be limited to situations where the
certificate of candidacy of the first-placer was valid at the time of filing but subsequently had to
be cancelled because of a violation of law that took place, or a legal impediment that took effect,
after the filing of the certificate of candidacy. If the certificate of candidacy is void ab initio, then
legally the person who filed such void certificate of candidacy was never a candidate in the
elections at any time. All votes for such non-candidate are stray votes and should not be
counted. Thus, such non-candidate can never be a first-placer in the elections. If a certificate of
candidacy void ab initio is cancelled on the day, or before the day, of the election, prevailing
jurisprudence holds that all votes for that candidate are stray votes. If a certificate of candidacy
void ab initio is cancelled one day or more after the elections, all votes for such candidate should
also be stray votes because the certificate of candidacy is void from the very beginning. This is
the more equitable and logical approach on the effect of the cancellation of a certificate of
candidacy that is void ab initio. Otherwise, a certificate of candidacy void ab initio can operate to
defeat one or more valid certificates of candidacy for the same position. (Jalosjos v. Commission
on Elections, G.R. No. 193237, October 9, 2012)

Knowledge by the electorate of a candidate’s disqualification due to

ineligibility is not necessary before a qualified candidate who placed second can be
proclaimed as the winner.

We have ruled in the recent cases of Aratea v. COMELEC and Jalosjos v. COMELEC that
a void COC 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.

There is no need to apply the rule cited in Labo v. COMELEC that when the voters are
well aware within the realm of notoriety of a candidate’s disqualification and still cast their votes
in favor said candidate, then the eligible candidate obtaining the next higher number of votes
may be deemed elected. That rule is also a mere obiter that further complicated the rules
affecting qualified candidates who placed second to ineligible ones.

The electorate’s awareness of the candidate’s disqualification 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 disqualification based on a substantive ground that existed prior to
the filing of the certificate of candidacy voids not only the COC but also the proclamation.
(Maquiling v. Comelec, G.R. No. 195649, April 16, 2013)

69 | P a g e
 If a local candidate is disqualified due to his ineligibility, his certificate is void
from the beginning, and he is not a candidate at all in the elections. The qualified
candidate who obtained the highest number of votes should be proclaimed; the rule
on succession will not apply.

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 he has already been elected, from holding the office.

The disqualifying circumstance affecting Arnado is his citizenship. xxx

xxx

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
except that Arnado rendered it impossible to effect his disqualification prior to the elections
because he filed his answer to the petition when the elections were conducted already and he
was already proclaimed the winner.

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 a non-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. (Maquiling
v. Comelec, G.R. No. 195649, April 16, 2013)

One who is disqualified under Section 68 is still technically considered to have

been a candidate, albeit proscribed to continue as such only because of supervening
infractions. One whose CoC has been denied due course to and/or cancelled under
Section 78 is deemed to have not been a candidate at all.

The Omnibus Election Code (OEC) provides for certain remedies to assail a candidate's
bid for public office. Among these which obtain particular significance to this case are: (1) a
petition for disqualification under Section 68; and (2) a petition to deny due course to and/or
cancel a certificate of candidacy under Section 78. The distinctions between the two are well-
perceived.

Primarily, a disqualification case under Section 68 of the OEC is hinged on either: (a) a
candidate's possession of a permanent resident status in a foreign country; or (b) his or her
commission of certain acts of disqualification. Anent the latter, the prohibited acts under
Section 68 refer to election offenses under the OEC, and not to violations of other penal laws. In
particular, these are: (1) giving money or other material consideration to influence, induce or
corrupt the voters or public officials performing electoral functions; (2) committing acts of
terrorism to enhance one's candidacy; (3) spending in one's election campaign an amount in
excess of that allowed by the OEC; (4) soliciting, receiving or making any contribution
prohibited under Sections 89, 95, 96, 97 and 104 of the OEC; and (5) violating Sections 80, 83,
85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6 of the OEC. Accordingly, the same
provision (Section 68) states that any candidate who, in an action or protest in which he or she
is a party, is declared by final decision of a competent court guilty of, or found by the COMELEC
to have committed any of the foregoing acts shall be disqualified from continuing as a candidate
for public office, or disallowed from holding the same, if he or she had already been elected.

It must be stressed that one who is disqualified under Section 68 is still technically
considered to have been a candidate, albeit proscribed to continue as such only because of
supervening infractions which do not, however, deny his or her statutory eligibility. In other
words, while the candidate's compliance with the eligibility requirements as prescribed by law,
such as age, residency, and citizenship, is not in question, he or she is, however, ordered to
discontinue such candidacy as a form of penal sanction brought by the commission of the above-
mentioned election offenses.

On the other hand, a denial of due course to and/or cancellation of a CoC proceeding
under Section 78 of the OEC is premised on a person's misrepresentation of any of the material
qualifications required for the elective office aspired for. It is not enough that a person lacks the
70 | P a g e
relevant qualification; he or she must have also made a false representation of the same in the
CoC. The nature of a Section 78 petition was discussed in the case of Fermin v. COMELEC,
where the Court illumined:
Let it be misunderstood, the denial of due course to or the cancellation of the CoC
is not based on the lack of qualifications but on a finding that the candidate made a
material representation that is false, which may relate to the qualifications required of the
public office he/she is running for. It is noted that the candidates states in his/her CoC that
he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read
in relation to the constitutional and statutory provisions on qualifications or eligibility for
public office. If the candidate subsequently states a material representation in the CoC that
is false, the COMELEC, following the law, is empowered to deny due course to or cancel
such certificate. xxx

xxxx

Pertinently, while a disqualified candidate under Section 68 is still considered to have

been a candidate for all intents and purposes, on the other hand, a person whose CoC had been
denied due course to and/or cancelled under Section 78 is deemed to have not been a candidate
at all. The reason being is that a cancelled CoC is considered void ab initio and thus, cannot give
rise to a valid candidacy and necessarily, to valid votes. In Talaga v. COMELEC (Talaga), the
Court ruled that:
x x x While a person who is disqualified under Section 68 is merely prohibited to
continue as a candidate, a person who certificate is cancelled or denied due course under
Section 78 is not treated as a candidate at all, as if he/she never filed a CoC.

(Tagolino v. House of Representatives, G.R. No. 202202, March 19, 2013)

Rule of succession in case a certificate of candidacy is void ab initio: The

person legally entitled to the vacant position would be the candidate who garnered
the next highest number of votes among those eligible.

Petitioner, however, argues that the Commission on Elections gravely abused its
discretion in proclaiming private respondent Bacani, the mere seventh placer among the
candidates for Councilor and, therefore, not the electorate’s choice. Petitioner maintains that the
vacancy left by her disqualification should be filled according to the rule on succession under
Section 45(a)(1) of the Local Government Code, xxx

The permanent vacancies referred to in Section 45 are those arising "when an elective
local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed
from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the
functions of his office." In these situations, the vacancies were caused by those whose certificates
of candidacy were valid at the time of the filing "but subsequently had to be cancelled because of
a violation of law that took place, or a legal impediment that took effect, after the filing of the
certificate of candidacy."

The rule on succession under Section 45, however, would not apply if the
permanent vacancy was caused by one whose certificate of candidacy was void ab
initio. Specifically with respect to dual citizens, their certificates of candidacy are void ab initio
because they possess "a substantive [disqualifying circumstance] . . . [existing] prior to the filing
of their certificate of candidacy." Legally, they should not even be considered candidates. The
votes casted for them should be considered stray and should not be counted.

In cases of vacancies caused by those with void ab initio certificates of

candidacy, the person legally entitled to the vacant position would be the candidate
who garnered the next highest number of votes among those eligible. In this case, it
is private respondent Bacani who is legally entitled to the position of Councilor, having garnered
the sixth highest number of votes among the eligible candidates. The Commission on Elections
correctly proclaimed private respondent Bacani in lieu of petitioner. (Chua v. Comelec, G.R. No.
216607, April 5, 2016) (Emphases supplied)

Effect of cancellation of or denial of due course to a CoC: No valid candidate,

no valid substitution.

Section 77 of the OEC provides that if an official candidate of a registered or accredited

political party dies, withdraws or is disqualified for any cause, a person belonging to and
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certified by the same political party may file a CoC to replace the candidate who died, withdrew
or was disqualified.

Evidently, Section 77 requires that there be an "official candidate" before candidate

substitution proceeds.

The law requires that one must have validly filed a CoC in order to be considered a
candidate. The requirement of having a CoC obtains even greater importance if one considers its
nature. In particular, a CoC formalizes not only a person’s public declaration to run for office but
evidences as well his or her statutory eligibility to be elected for the said post.

In this regard, the CoC is the document which formally accords upon a person the status
of a candidate. In other words, absent a valid CoC one is not considered a candidate under legal
contemplation.

If a person’s CoC had been denied due course to and/or cancelled, he or she cannot be
validly substituted in the electoral process. The existence of a valid CoC is therefore a condition
sine qua non for a disqualified candidate to be validly substituted.

As explained in the case of Miranda v. Abaya, a candidate who is disqualified under

Section 68 can be validly substituted pursuant to Section 77 because he remains a candidate
until disqualified; but a person whose CoC has been denied due course to and/or cancelled
under Section 78 cannot be substituted because he is not considered a candidate. Stated
differently, since there would be no candidate to speak of under a denial of due course to and/or
cancellation of a CoC case, then there would be no candidate to be substituted; the same does
not obtain, however, in a disqualification case since there remains to be a candidate to be
substituted, although his or her candidacy is discontinued. (Tagolino v. House of
Representatives, G.R. No. 202202, March 19, 2013)

An allegedly false nickname in the CoC is not a “material misrepresentation”

that is a ground to cancel or deny due course to a CoC under Section 78.

Petitioner filed the petition under Section 78 of the Omnibus Election Code claiming that
respondent committed material misrepresentation when the latter declared in his COC that his
name/nickname to be printed in the official ballot was VILLAFUERTE, LRAY JR.-MIGZ instead
of his baptismal name, VILLAFUERTE, MIGUEL-MIGZ.

Section 78 states that the false representation in the contents of the COC required under
Section 74 must refer to material matters in order to justify the cancellation of the COC.

The material misrepresentation contemplated by Section 78 of the Code refer to

qualifications for elective office.

Aside from the requirement of materiality, a false representation under Section 78 must
consist of a "deliberate attempt to mislead, misinform, or hide a fact which would otherwise
render a candidate ineligible." In other words, it must be made with an intention to deceive the
electorate as to one’s qualifications for public office. The use of surname, when not intended to
mislead, or deceive the public as to one's identity is not within the scope of the provision.

In Aratea v. Commission on Elections, we proclaimed Estela D. Antipolo, the alleged

second placer, as Mayor of San Antonio, Zambales, being the one who remained as the sole
qualified candidate for the mayoralty post and obtained the highest number of votes, since the
COC of Romeo D. Lonzanida, the first placer, was declared void ab initio. We find that violation
of the three-term limit is an eligibility affecting the qualification of a candidate to elective office
and the misrepresentation of such is a ground to grant the petition to deny due course or cancel
a COC. We said that:

Section 74 requires the candidate to certify that he is eligible for the public office he
seeks election. Thus, Section 74 states that "the certificate of candidacy shall state that the
person filing x x x is eligible for said office." After being elected and serving for three consecutive
terms, an elective local official cannot seek immediate reelection for the same office in the next
regular election because he is ineligible. One who has an ineligibility to run for elective public
office is not "eligible for [the] office." As used in Section 74, the word "eligible" means having the
right to run for elective public office, that is, having all the qualifications and none of the
ineligibilities to run for the public office.

72 | P a g e
 Thus, Lonzanida’s representation that he was eligible for the office that he sought
election constitutes false material representation as to his qualification or eligibility for the
office.

The use of a name other than that stated in the certificate of birth is not a material
misrepresentation, as "material misrepresentation" under the earlier-quoted Section 78 of the
Omnibus Election Code refers to "qualifications for elective office."

Clearly, for the petition to deny due course or cancel the COC of one candidate to
prosper, the candidate must have made a material misrepresentation involving his eligibility or
qualification for the office to which he seeks election, such as the requisite residency, age,
citizenship or any other legal qualification necessary to run for local elective office as provided in
the Local Government Code. Hence, petitioner’s allegation that respondent’s nickname "LRAY
JR. MIGZ" written in his COC is a material misrepresentation is devoid of merit. Respondent's
nickname written in the COC cannot be considered a material fact which pertains to his
eligibility and thus qualification to run for public office.

Moreover, the false representation under Section 78 must consist of a deliberate attempt
to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. As we
said, respondent's nickname is not considered a material fact, and there is no substantial
evidence showing that in writing the nickname "LRAY JR. MIGZ" in his COC, respondent had
the intention to deceive the voters as to his identity which has an effect on his eligibility or
qualification for the office he seeks to assume. (Villafuerte v. Comelec, 25 February 2014)

Stating under oath in the CoC that one is eligible to run for public office, when
one is not, is a false material misrepresentation.

Under the rules, a statement in a certificate of candidacy claiming that a candidate is

eligible to run for public office when in truth he is not, is a false material representation, a
ground for a petition under Section 78 of the Omnibus Election Code.

Section 74 requires the candidate to state under oath in his CoC "that he is eligible for
said office." A candidate is eligible if he has a right to run for the public office. If a candidate is
not actually eligible because he is not a registered voter in the municipality where he intends to
be elected, but still he states under oath in his certificate of candidacy that he is eligible to run
for public office, then the candidate clearly makes a false material representation, a ground to
support a petition under Section 78.

It is interesting to note that Hayudini was, in fact, initially excluded by the ERB as a
voter. On November 30, 2012, the ERB issued a certificate confirming the disapproval of
Hayudini’s petition for registration. Hence, the COMELEC was accurate in cancelling
Hayudini’s certificate of candidacy. (Hayudini v. Commission on Elections, G.R. No. 207900,
April 22, 2014)

COMELEC's jurisdiction to deny due course and cancel a CoC for material
misrepresentation continues even after election and proclamation, except in the
cases of congressional and senatorial candidates.

Hayudini protests that it was a grave error on the part of the COMELEC to have declared
his proclamation null and void when no petition for annulment of his proclamation was ever
filed. What petitioner seems to miss, however, is that the nullification of his proclamation as a
winning candidate is also a legitimate outcome − a necessary legal consequence − of the
cancellation of his CoC pursuant to Section 78. A CoC cancellation proceeding essentially
partakes of the nature of a disqualification case.

The cancellation of a CoC essentially renders the votes cast for the candidate whose
certificate of candidacy has been cancelled as stray votes. If the disqualification or CoC
cancellation or denial case is not resolved before the election day, the proceedings shall continue
even after the election and the proclamation of the winner. Meanwhile, the candidate may be
voted for and even be proclaimed as the winner, but the COMELEC's jurisdiction to deny due
course and cancel his or her CoC continues. This rule likewise applies even if the candidate
facing disqualification has already taken his oath of office. The only exception to this rule is in
the case of congressional and senatorial candidates where the COMELEC ipso jure loses
jurisdiction in favor of either the Senate or the House of Representatives Electoral Tribunal after

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the candidates have been proclaimed, taken the proper oath, and also assumed office. (Hayudini
v. Commission on Elections, G.R. No. 207900, April 22, 2014)

Opportunity to be heard is required before cancellation of or denial of due

course to a CoC.

In declaring that Kimberly, being under age, could not be considered to have filed a valid
COC and, thus, could not be validly substituted by Olivia, we find that the Comelec gravely
abused its discretion.

Firstly, subject to its authority over nuisance candidates and its power to deny due
course to or cancel COCs under Sec. 78, Batas Pambansa (B.P.) Blg. 881, the Comelec has the
ministerial duty to receive and acknowledge receipt of COCs.

In Cipriano v. Comelec, we ruled that the Comelec has no discretion to give or not to give
due course to COCs. We emphasized that the duty of the Comelec to give due course to COCs
filed in due form is ministerial in character, and that while the Comelec may look into patent
defects in the COCs, it may not go into matters not appearing on their face. The question of
eligibility or ineligibility of a candidate is thus beyond the usual and proper cognizance of the
Comelec. (Cerafica v. Commission on Elections, G.R. No. 205136, December 2, 2014)

For cancellation of/denial of due course to a CoC for material

misrepresentation, there must be a verified petition.

The COMELEC acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in declaring that Hans Roger, being under age, could not be considered to have filed
a valid certificate of candidacy and, thus, could not be validly substituted by Luna. The
COMELEC may not, by itself, without the proper proceedings, deny due course to or cancel a
certificate of candidacy filed in due form. In Sanchez vs. Del Rosario, the Court ruled that the
question of eligibility or ineligibility of a candidate for non-age is beyond the usual and proper
cognizance of the COMELEC.

If Hans Roger made a material misrepresentation as to his date of birth or age in his
certificate of candidacy, his eligibility may only be impugned through a verified petition to deny
due course to or cancel such certificate of candidacy under Section 78 of the Election Code.

In this case, there was no petition to deny due course to or cancel the certificate of
candidacy of Hans Roger. The COMELEC only declared that Hans Roger did not file a valid
certificate of candidacy and, thus, was not a valid candidate in the petition to deny due course to
or cancel Luna’s certificate of candidacy. In effect, the COMELEC, without the proper
proceedings, cancelled Hans Roger’s certificate of candidacy and declared the substitution by
Luna invalid. (Cerafica v. Commission on Elections, G.R. No. 205136, December 2, 2014)

Cancellation of CoCs: In the exercise of quasi-judicial functions of the

Comelec, the Comelec in Division should first decide the case.

The Court reminds the Comelec that, in the exercise of it adjudicatory or quasi-judicial
powers, the Constitution mandates it to hear and decide cases first by Division and, upon
motion for reconsideration, by the En Banc.

As cancellation proceedings involve the exercise of quasi-judicial functions of the

Comelec, the Comelec in Division should have first decided this case.

In Bautista v. Comelec, et al., where the Comelec Law Department recommended the
cancellation of a candidate’s COC for lack of qualification, and which recommendation was
affirmed by the Comelec En Banc, the Court held that the Comelec En Banc cannot short cut the
proceedings by acting on the case without a prior action by a division because it denies due
process to the candidate. (Cerafica v. Commission on Elections, G.R. No. 205136, December 2,
2014)

Nuisance candidates: Comelec must give the candidate opportunity to be

heard before cancellation of/denial of due course of CoC

To minimize the logistical confusion caused by nuisance candidates, their certificates of

candidacy may be denied due course or cancelled by respondent. This denial or cancellation may

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be "motu proprio or upon a verified petition of an interested party," "subject to an opportunity
to be heard."

The determination whether a candidate is eligible for the position he is seeking involves
a determination of fact where both parties must be allowed to adduce evidence in support of
their contentions. Because the resolution of such fact may result to a deprivation of one’s right to
run for public office, or, as in this case, one’s right to hold public office, it is only proper and fair
that the candidate concerned be notified of the proceedings against him and that he be given the
opportunity to refute the allegations against him. (Timbol v. Comelec, G.R. No. 206004,
February 24, 2015)

PARTY-LIST ELECTIONS

New parameters for party-list elections: Not all party-list groups must
represent the marginalized and underrepresented sectors. National or regional
parties or organizations, and sectoral parties or organizations that lack "well-
defined political constituencies" (such as professionals, the elderly, women, and the
youth groups) -- do not need to represent the "marginalized and underrepresented."

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.

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 only 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.

The COMELEC excluded from participating in the 13 May 2013 party-list elections those
that did not satisfy these two criteria: (1) all national, regional, and sectoral groups or
organizations must represent the "marginalized and underrepresented" sectors, and (2) all
nominees must belong to the "marginalized and underrepresented" sector they represent. As
discussed above, the disqualification of petitioners, and their nominees, under such
circumstances is contrary to the 1987 Constitution and R.A. No. 7941. (Atong Paglaum v
Comelec, G.R. No. 203766, April 2, 2013)

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 The disqualification for failure to garner 2% party-list votes in two preceding
elections should now be understood, in light of the Banat ruling, to mean failure to
qualify for a party-list seat in two preceding elections for the constituency in which
it has registered.

For the upcoming May 2010 elections, the COMELEC en banc issued on October 13,
2009 Resolution No. 8679 deleting several party-list groups or organizations from the list of
registered national, regional or sectoral parties, organizations or coalitions. Among the party-list
organizations affected was PGBI; it was delisted because it failed to get 2% of the votes cast in
2004 and it did not participate in the 2007 elections. x x x

xxx

PGBI came to us in its petition for certiorari, arguing the same positions it raised with
the COMELEC when it moved to reconsider its delisting.

We initially dismissed the petition in light of our ruling in Philippine Mines Safety
Environment Association, also known as "MINERO" v. Commission on Elections (Minero); we
said that no grave abuse of discretion exists in a ruling that correctly applies the prevailing law
and jurisprudence. Applying Section 6(8) of RA 7941, the Court disqualified MINERO under the
following reasoning:
Since petitioner by its own admission failed to get 2% of the votes in 2001 and did
not participate at all in the 2004 elections, it necessarily failed to get at least two per
centum (2%) of the votes cast in the two preceding elections. COMELEC, therefore, is not
duty bound to certify it.

PGBI subsequently moved to reconsider the dismissal of its petition. x x x

PGBI thus asserts that Section 6(8) does not apply to its situation, as it is obvious that it
failed to participate in one (1) but not in the two (2) preceding elections. Implied in this is that it
also failed to secure the required percentage in one (1) but not in the two (2) preceding elections.

xxx

We find the petition partly impressed with merit.

a. The Minero Ruling

Our Minero ruling is an erroneous application of Section 6(8) of RA 7941; hence, it

cannot sustain PGBI’s delisting from the roster of registered national, regional or sectoral
parties, organizations or coalitions under the party-list system.

First, the law is clear – the COMELEC may motu proprio or upon verified complaint of
any interested party, remove or cancel, after due notice and hearing, the registration of any
national, regional or sectoral party, organization or coalition if it: (a) fails to participate in the
last two (2) preceding elections; or (b) fails to obtain at least two per centum (2%) of the votes
cast under the party-list system in the two (2) preceding elections for the constituency in which
it has registered. The word "or" is a disjunctive term signifying disassociation and independence
of one thing from the other things enumerated; it should, as a rule, be construed in the sense in
which it ordinarily implies, as a disjunctive word. Thus, the plain, clear and unmistakable
language of the law provides for two (2) separate reasons for delisting.

Second, Minero is diametrically opposed to the legislative intent of Section 6(8) of RA

7941, as PGBI’s cited congressional deliberations clearly show.

Minero therefore simply cannot stand. Its basic defect lies in its characterization of the
non-participation of a party-list organization in an election as similar to a failure to garner the
2% threshold party-list vote. x x x

What we say here should of course take into account our ruling in Barangay Association
for Advancement and National Transparency v. COMELEC (Banat) where we partly
invalidated the 2% party-list vote requirement provided in RA 7941 as follows:
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 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

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 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.

The disqualification for failure to get 2% party-list votes in two (2) preceding elections
should therefore be understood in light of the Banat ruling that party-list groups or
organizations garnering less than 2% of the party-list votes may yet qualify for a seat in the
allocation of additional seats.

xxx

To reiterate, (a) Section 6(8) of RA 7941 provides for two separate grounds for delisting;
these grounds cannot be mixed or combined to support delisting; and (b) the disqualification for
failure to garner 2% party-list votes in two preceding elections should now be understood, in
light of the Banat ruling, to mean failure to qualify for a party-list seat in two preceding elections
for the constituency in which it has registered. This, we declare, is how Section 6(8) of RA 7941
should be understood and applied. We do so under our authority to state what the law is, and as
an exception to the application of the principle of stare decisis. (Philippine Guardians
Brotherhood, Inc. v. Commission on Elections, G.R. No. 190529, April 29, 2010)

CITIZENSHIP REQUIREMENT FOR ELECTION

Natural-born Filipinos, who have been naturalized as citizens of a foreign

country, but who reacquired or retained their Philippine citizenship must (1) take
the oath of allegiance under RA 9225, and (2) for those seeking elective public
offices in the Philippines, to additionally execute a personal and sworn renunciation
of any and all foreign citizenship before an authorized public officer prior or
simultaneous to the filing of their certificates of candidacy, to qualify as candidates
in Philippine elections

R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship for natural-
born citizens who have lost their Philippine citizenship by taking an oath of allegiance to the
Republic, thus:

Section 3. Retention of Philippine Citizenship. – Any provision of law to the contrary

notwithstanding, natural-born citizens of the Philippines who have lost their Philippine
citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to
have re-acquired Philippine citizenship upon taking the following oath of allegiance to the
Republic:

"I, _____________________, solemnly swear (or affirm) that I will support and
defend the Constitution of the Republic of the Philippines and obey the laws and legal orders
promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I
recognize and accept the supreme authority of the Philippines and will maintain true faith and
allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental
reservation or purpose of evasion."

Natural-born citizens of the Philippines who, after the effectivity of this Act, become
citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid
oath.

The oath is an abbreviated repatriation process that restores one’s Filipino citizenship
and all civil and political rights and obligations concomitant therewith, subject to certain
conditions imposed in Section 5, viz:

Sec. 5. Civil and Political Rights and Liabilities. – 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:

(1) Those intending to exercise their right of suffrage must meet the requirements under
Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas
Absentee Voting Act of 2003" and other existing laws;

(2) Those seeking elective public office in the Philippines shall meet the qualification 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;

(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance
to the Republic of the Philippines and its duly constituted authorities prior to their assumption of

77 | P a g e
 office: Provided, That they renounce their oath of allegiance to the country where they took that
oath;

(4) Those intending to practice their profession in the Philippines shall apply with the
proper authority for a license or permit to engage in such practice; and

(5) That right to vote or be elected or appointed to any public office in the Philippines
cannot be exercised by, or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which they are
naturalized citizens; and/or

(b) are in active service as commissioned or non-commissioned officers in the armed

forces of the country which they are naturalized citizens. (Sobejana-Condon v. Commission on
Elections, G.R. No. 198742, August 10, 2012)

Under the provisions of the aforementioned law, the petitioner has validly re-acquired
her Filipino citizenship when she took an Oath of Allegiance to the Republic of the Philippines
on December 5, 2005. At that point, she held dual citizenship, i.e., Australian and Philippine.

On September 18, 2006, or a year before she initially sought elective public office, she
filed a renunciation of Australian citizenship in Canberra, Australia. Admittedly, however, the
same was not under oath contrary to the exact mandate of Section 5(2) that the renunciation of
foreign citizenship must be sworn before an officer authorized to administer oath.

xxx

The law categorically requires persons seeking elective public office, who either retained
their Philippine citizenship or those who reacquired it, to make a personal and sworn
renunciation of any and all foreign citizenship before a public officer authorized to administer
an oath simultaneous with or before the filing of the certificate of candidacy.

Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have
been naturalized as citizens of a foreign country, but who reacquired or retained their Philippine
citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No. 9225, and (2)
for those seeking elective public offices in the Philippines, to additionally execute a personal and
sworn renunciation of any and all foreign citizenship before an authorized public officer prior or
simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine
elections. (Sobejana-Condon v. Commission on Elections, G.R. No. 198742, August 10, 2012)

To qualify as a candidate in Philippine elections, person who reacquired or

retained his Philippine citizenship under Republic Act No. 9225 must make a
personal and sworn renunciation of his foreign citizenship, if he wishes to run for
elective posts in the Philippines.

The intent of the legislators was not only for Filipinos reacquiring or retaining their
Philippine citizenship under Republic Act No. 9225 to take their oath of allegiance to the
Republic of the Philippines, but also to explicitly renounce their foreign citizenship if they wish
to run for elective posts in the Philippines. To qualify as a candidate in Philippine elections,
Filipinos must only have one citizenship, namely, Philippine citizenship.

Hence, in De Guzman v. COMELEC, we declared petitioner therein to be disqualified

from running for the position of vice-mayor for his failure to make a personal and sworn
renunciation of his American citizenship.

xxx

Indeed, the solemn promise, and the risk of punishment attached to an oath ensures
truthfulness to the prospective public officer’s abandonment of his adopted state and promise of
absolute allegiance and loyalty to the Republic of the Philippines.

xxx

In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their
citizenship and seek elective office, to execute a personal and sworn renunciation of any and all
foreign citizenships before an authorized public officer prior to or simultaneous to the filing of
their certificates of candidacy, to qualify as candidates in Philippine elections. The rule applies
to all those who have re-acquired their Filipino citizenship, like petitioner, without regard as to

78 | P a g e
whether they are still dual citizens or not. It is a pre-requisite imposed for the exercise of the
right to run for public office.

Stated differently, it is an additional qualification for elective office specific only to

Filipino citizens who re-acquire their citizenship under Section 3 of R.A. No. 9225. It is the
operative act that restores their right to run for public office. The petitioner's failure to comply
therewith in accordance with the exact tenor of the law, rendered ineffectual the Declaration of
Renunciation of Australian Citizenship she executed on September 18, 2006. As such, she is yet
to regain her political right to seek elective office. Unless she executes a sworn renunciation of
her Australian citizenship, she is ineligible to run for and hold any elective office in the
Philippines. (Sobejana-Condon v. Commission on Elections, G.R. No. 198742, August 10, 2012)

A candidate for public office cannot claim that he has renounced his foreign
citizenship by taking the Oath of Allegiance. The oath of allegiance and the sworn
and personal renunciation of foreign citizenship are separate requirements, the
latter being an additional requirement for qualification to run for public office.

Petitioner was born to Filipino parents in 1967, which makes her a natural-born Filipino
under the 1935 Constitution. Ten years later, on December 7, 1977, petitioner became a
naturalized American. Hence, she lost her Filipino citizenship pursuant to Section 1 of
Commonwealth Act No. 63.

It was on September 21, 2011 when petitioner took an Oath of Allegiance to the Republic
of the Philippines, thus reacquiring her Filipino citizenship. From September 21, 2011 up to the
present, however, petitioner failed to execute a sworn and personal renunciation of her foreign
citizenship particularly required of those seeking elective public office. Section 5(2) of the
Citizenship Retention and Re-acquisition Act of 2003 provides:

SECTION 5. Civil and Political Rights and Liabilities. – 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[.]

Petitioner cannot claim that she has renounced her American citizenship by taking the
Oath of Allegiance. The oath of allegiance and the sworn and personal renunciation of foreign
citizenship are separate requirements, the latter being an additional requirement for
qualification to run for public office. In Jacot v. Dal:

[T]he oath of allegiance contained in the Certificate of Candidacy, which is

substantially similar to the one contained in Section 3 of Republic Act No. 9225, does not
constitute the personal and sworn renunciation sought under Section 5(2) of Republic Act
No. 9225. It bears to emphasize that the said oath of allegiance is a general requirement
for all those who wish to run as candidates in Philippine elections; while the renunciation
of foreign citizenship is an additional requisite only for those who have retained or
reacquired Philippine citizenship under Republic Act No. 9225 and who seek elective
public posts, considering their special circumstance of having more than one citizenship.

With petitioner’s failure to execute a personal and sworn renunciation of her American
citizenship, petitioner was a dual citizen at the time she filed her Certificate of Candidacy on
October 3, 2012. Under Section 40 of the Local Government Code, she was disqualified to run
for Councilor in the Fourth District of Manila during the 2013 National and Local Elections.
(Chua v. Comelec, G.R. No. 216607, April 5, 2016)

The mere act of running for public offices does not suffice to serve as an
effective renunciation of foreign citizenship.

The petitioner’s act of running for public office does not suffice to serve as an effective
renunciation of her Australian citizenship. While this Court has previously declared that the
filing by a person with dual citizenship of a certificate of candidacy is already considered a
renunciation of foreign citizenship, such ruling was already adjudged superseded by the

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enactment of R.A. No. 9225 on August 29, 2003 which provides for the additional condition of a
personal and sworn renunciation of foreign citizenship. (Sobejana-Condon v. Commission on
Elections, G.R. No. 198742, August 10, 2012)

Effect of use of foreign passport after oath of renunciation: Recantation of

oath of renunciation.

The use of foreign passport after renouncing one’s foreign citizenship is a positive and
voluntary act of representation as to one’s nationality and citizenship; it does not divest Filipino
citizenship regained by repatriation but it recants the Oath of Renunciation required to qualify
one to run for an elective position. (Maquiling v. Comelec, G.R. No. 195649, April 16, 2013)

Citizenship, being a continuing requirement for Members of the House of

Representatives, may be questioned at any time.

Citizenship, being a continuing requirement for Members of the House of

Representatives, may be questioned at any time. Courts will decide a question, otherwise moot
and academic, if it is "capable of repetition, yet evading review." The question on Limkaichong’s
citizenship is likely to recur if she would run again, as she did run, for public office, hence,
capable of repetition. (Vilando v. HRET, G.R. Nos. 192147 & 192149, August 23, 2011)

RESIDENCY REQUIREMENT FOR ELECTION

It is the fact of residence, not a statement in a certificate of candidacy which

ought to be decisive in determining whether or not an individual has satisfied the
constitutions residency qualification requirement.

To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the
COMELEC ruled that petitioner's claim of residence of ten (10) years and eleven (11) months by
9 May 2016 in her 2015 COC was false because she put six (6) years and six (6) months as
"period of residence before May 13, 2013" in her 2012 COC for Senator. Thus, according to the
COMELEC, she started being a Philippine resident only in November 2006. In doing so, the
COMELEC automatically assumed as true the statement in the 2012 COC and the 2015 COC as
false.

As explained by petitioner in her verified pleadings, she misunderstood the date required
in the 2013 COC as the period of residence as of the day she submitted that COC in 2012. She
said that she reckoned residency from April-May 2006 which was the period when the U.S.
house was sold and her husband returned to the Philippines. In that regard, she was advised by
her lawyers in 2015 that residence could be counted from 25 May 2005.

Petitioner's explanation that she misunderstood the query in 2012 (period of residence
before 13 May 2013) as inquiring about residence as of the time she submitted the COC, is
bolstered by the change which the COMELEC itself introduced in the 2015 COC which is now
"period of residence in the Philippines up to the day before May 09, 2016." The COMELEC
would not have revised the query if it did not acknowledge that the first version was vague.

xxxx

It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding
and conclusive admission against petitioner. It could be given in evidence against her, yes, but it
was by no means conclusive. There is precedent after all where a candidate's mistake as to
period of residence made in a COC was overcome by evidence. In Romualdez-Marcos v.
COMELEC, the candidate mistakenly put seven (7) months as her period of residence where the
required period was a minimum of one year. We said that "[i]t is the fact of residence, not a
statement in a certificate of candidacy which ought to be decisive in determining whether or
not an individual has satisfied the constitutions residency qualification requirement." The
COMELEC ought to have looked at the evidence presented and see if petitioner was telling the
truth that she was in the Philippines from 24 May 2005. Had the COMELEC done its duty, it
would have seen that the 2012 COC and the 2015 COC both correctly stated the pertinent period
of residency.

xxxx

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 Concededly, a candidate's disqualification to run for public office does not necessarily
constitute material misrepresentation which is the sole ground for denying due course to, and
for the cancellation of, a COC. Further, as already discussed, the candidate's misrepresentation
in his COC must not only refer to a material fact (eligibility and qualifications for elective office),
but should evince a deliberate intent to mislead, misinform or hide a fact which would otherwise
render a candidate ineligible. It must be made with an intention to deceive the electorate as to
one's qualifications to run for public office.

In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good
number of evidenced dates all of which can evince animus manendi to the Philippines
and animus non revertedi to the United States of America. The veracity of the events of coming
and staying home was as much as dismissed as inconsequential, the focus having been fixed at
the petitioner's "sworn declaration in her COC for Senator" which the COMELEC said "amounts
to a declaration and therefore an admission that her residence in the Philippines only commence
sometime in November 2006"; such that "based on this declaration, [petitioner] fails to meet
the residency requirement for President." This conclusion, as already shown, ignores the
standing jurisprudence that it is the fact of residence, not the statement of the person that
determines residence for purposes of compliance with the constitutional requirement of
residency for election as President. (Poe-Llamanzares v. Comelec, G.R. No. 221697, March 8,
2016) (Underscoring supplied)

For purposes of the election laws, the requirement of residence is

synonymous with domicile, meaning that a person must not only intend to reside in
a particular place but must also have personal presence in such place coupled with
conduct indicative of such intention.

The Local Government Code requires a candidate seeking the position of provincial
governor to be a resident of the province for at least one year before the election. For purposes of
the election laws, the requirement of residence is synonymous with domicile, meaning that a
person must not only intend to reside in a particular place but must also have personal presence
in such place coupled with conduct indicative of such intention.

There is no hard and fast rule to determine a candidate’s compliance with residency
requirement since the question of residence is a question of intention. Still, jurisprudence has
laid down the following guidelines: (a) every person has a domicile or residence somewhere; (b)
where once established, that domicile remains until he acquires a new one; and (c) a person can
have but one domicile at a time.

But it is clear from the facts that Quezon City was Jalosjos’ domicile of origin, the place
of his birth. It may be taken for granted that he effectively changed his domicile from Quezon
City to Australia when he migrated there at the age of eight, acquired Australian citizenship, and
lived in that country for 26 years. Australia became his domicile by operation of law and by
choice.

On the other hand, when he came to the Philippines in November 2008 to live with his
brother in Zamboanga Sibugay, it is evident that Jalosjos did so with intent to change his
domicile for good. He left Australia, gave up his Australian citizenship, and renounced his
allegiance to that country. In addition, he reacquired his old citizenship by taking an oath of
allegiance to the Republic of the Philippines, resulting in his being issued a Certificate of
Reacquisition of Philippine Citizenship by the Bureau of Immigration. By his acts, Jalosjos
forfeited his legal right to live in Australia, clearly proving that he gave up his domicile there.
And he has since lived nowhere else except in Ipil, Zamboanga Sibugay.

To hold that Jalosjos has not establish a new domicile in Zamboanga Sibugay despite the
loss of his domicile of origin (Quezon City) and his domicile of choice and by operation of law
(Australia) would violate the settled maxim that a man must have a domicile or residence
somewhere.

Two. The COMELEC concluded that Jalosjos has not come to settle his domicile in Ipil
since he has merely been staying at his brother’s house. But this circumstance alone cannot
support such conclusion. Indeed, the Court has repeatedly held that a candidate is not required
to have a house in a community to establish his residence or domicile in a particular place. It is
sufficient that he should live there even if it be in a rented house or in the house of a friend or
relative. To insist that the candidate own the house where he lives would make property a
qualification for public office. What matters is that Jalosjos has proved two things: actual
physical presence in Ipil and an intention of making it his domicile. (Jalosjos v. Commission on
Elections, G.R. No. 191970, April 24, 2012)

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 Change of residence requirements: 1) bodily presence in the new locality; 2)
an intention to remain there; 3) an intention to abandon the old domicile.
Ownership of a house does not necessarily establish domicile.

When it comes to the qualifications for running for public office, residence is
synonymous with domicile. Accordingly, Nuval v. Guray held as follows:
The term residence as so used, is synonymous with domicile which imports not
only intention to reside in a fixed place, but also personal presence in that place, coupled
with conduct indicative of such intention.

There are three requisites for a person to acquire a new domicile by choice. First,
residence or bodily presence in the new locality. Second, an intention to remain there.
Third, an intention to abandon the old domicile.

There are three requisites for a person to acquire a new domicile by choice.
First, residence or bodily presence in the new locality. Second, an intention to remain
there. Third, an intention to abandon the old domicile.

These circumstances must be established by clear and positive proof, as held

in Romualdez-Marcos v. COMELEC and subsequently in Dumpit- Michelena v. Boado:

In the absence of clear and positive proof based on these criteria, the residence of
origin should be deemed to continue. xxx

Moreover, even if these requisites are established by clear and positive proof, the date of
acquisition of the domicile of choice, or the critical date, must also be established to be within at
least one year prior to the elections using the same standard of evidence.

xxxx

Assuming that the claim of property ownership of petitioner is true, Fernandez v.

COMELEC has established that the ownership of a house or some other property does not
establish domicile. This principle is especially true in this case as petitioner has failed to
establish her bodily presence in the locality and her intent to stay there at least a year before the
elections, to wit:
To use ownership of property in the district as the determinative indicium of
permanence of domicile or residence implies that the landed can establish compliance with
the residency requirement. This Court would be, in effect, imposing a property requirement
to the right to hold public office, which property requirement would be unconstitutional.

Finally, the approval of the application for registration of petitioner as a voter only
shows, at most, that she had met the minimum residency requirement as a voter. This minimum
requirement is different from that for acquiring a new domicile of choice for the purpose of
running for public office. (Jalosjos v. Comelec, G.R. No. 193314, February 26, 2013)

A candidate is not required to have a house in a community to establish his

residence or domicile in a particular place. It is sufficient that he should live there
even if it be in a rented house or in the house of a friend or relative. To insist that
the candidate own the house where he lives would make property a qualification for
public office.

The COMELEC concluded that Jalosjos has not come to settle his domicile in Ipil since
he has merely been staying at his brother’s house. But this circumstance alone cannot support
such conclusion. Indeed, the Court has repeatedly held that a candidate is not required to have a
house in a community to establish his residence or domicile in a particular place. It is sufficient
that he should live there even if it be in a rented house or in the house of a friend or relative. To
insist that the candidate own the house where he lives would make property a qualification for
public office. What matters is that Jalosjos has proved two things: actual physical presence in
Ipil and an intention of making it his domicile. (Jalosjos v. Comelec, G.R. No. 191970, April 24,
2012)

Similarly, the fact that Osmeña has no registered property under his name does not belie
his actual residence in Toledo City because property ownership is not among the qualifications
required of candidates for local election. It is enough that he should live in the locality, even in a
rented house or that of a friend or relative. To use ownership of property in the district as the
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determinative indicium of permanence of domicile or residence implies that only the landed can
establish compliance with the residency requirement. In Perez v. COMELEC, we sustained the
COMELEC when it considered as evidence tending to establish a candidate’s domicile of choice
the mere lease (rather than ownership) of an apartment by a candidate in the same province
where he ran for the position of governor. (Jalover v. Osmena, G.R. No. 209286, September 23,
2014)

The law does not require a person to be in his home twenty-four (24) hours a
day, seven (7) days a week, to fulfill the residency requirement.

To establish a new domicile of choice, personal presence in the place must be coupled
with conduct indicative of this intention. It requires not only such bodily presence in that place
but also a declared and probable intent to make it one’s fixed and permanent place of abode.

xxx

The petitioners, in the present case, largely rely on statements that Osmeña was “hardly
seen” in Toledo City, Cebu to support their claim of error of jurisdiction. These affidavits,
however, deserve little consideration and loudly speak of their inherent weakness as evidence.

The law does not require a person to be in his home twenty-four (24) hours a day, seven
(7) days a week, to fulfill the residency requirement. In Fernandez v. House Electoral Tribunal,
we ruled that the “fact that a few barangay health workers attested that they had failed to see
petitioner whenever they allegedly made the rounds in Villa de Toledo is of no moment,
especially considering that there were witnesses (including petitioner's neighbors in Villa de
Toledo) that were in turn presented by petitioner to prove that he was actually a resident of Villa
de Toledo, in the address he stated in his COC. x x x It may be that whenever these health
workers do their rounds petitioner was out of the house to attend to his own employment or
business.”

Under the circumstances, the evidence submitted by the petitioners do not conclusively
prove that Osmeña did not in fact reside in Toledo City for at least the year before election day;
most especially since the sworn statements of some Toledo City residents attesting that they
never saw Osmeña in Toledo City were controverted by similar sworn statements by other
Toledo City residents who claimed that Osmeña resided in Toledo City. (Jalover v. Osmena,
G.R. No. 209286, September 23, 2014)

Subjective non-legal standards (such as, a man of stature does not live in a
dilapidated house or a feedmill) cannot be used to determine residence.

We cannot accord credence either to the petitioners’ contention that the dilapidated
house in Ibo, Toledo City, could not serve as Osmeña’s residence in view of the latter’s stature.
xxxx Moreover, the petitioners’ speculation involves the use of subjective non-legal standards,
which we previously condemned in the case of Mitra v. Commission on Elections. In Mitra, we
pronounced:
The respondents significantly ask us in this case to adopt the same faulty approach
of using subjective norms, as they now argue that given his stature as a member of the
prominent Mitra clan of Palawan, and as a three term congressman, it is highly incredible
that a small room in a feed mill has served as his residence since 2008.

We reject this suggested approach outright for the same reason we condemned the
COMELEC's use of subjective non-legal standards. Mitra's feed mill dwelling cannot
be considered in isolation and separately from the circumstances of his
transfer of residence, specifically, his expressed intent to transfer to a
residence outside of Puerto Princesa City to make him eligible to run for a
provincial position; his preparatory moves starting in early 2008; his initial
transfer through a leased dwelling; the purchase of a lot for his permanent
home; and the construction of a house in this lot that, parenthetically, is
adjacent to the premises he leased pending the completion of his house. These
incremental moves do not offend reason at all, in the way that the COMELEC's highly
subjective non-legal standards do. (Emphasis ours)

Osmeña’s actual physical presence in Toledo City is established not only by the presence
of a place (Ibo, Toledo City, house and lot) he can actually live in, but also the affidavits of
various persons in Toledo City. Osmeña’s substantial and real interest in establishing his
domicile of choice in Toledo City is also sufficiently shown not only by the acquisition of
additional property in the area and the transfer of his voter registration and headquarters, but

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also his participation in the community’s socio-civic and political activities. (Jalover v. Osmena,
G.R. No. 209286, September 23, 2014)

Reacquisition of Philippine citizenship under RA 9225 has no retroactive

effect with respect to residence: Reacquisition of his Philippine citizenship under
Republic Act No. 9225 has no automatic impact or effect on the person’s
residence/domicile. He merely has the option to again establish his domicile in old
domicile, said place becoming his new domicile of choice. The length of his
residence therein shall be determined from the time he made it his domicile of
choice, and it shall not retroact to the time of his birth.

RA No. 9225, which is known as the Citizenship Retention and Reacquisition Act of
2003, declares that natural-born citizens of the Philippines, who have lost their Philippine
citizenship by reason of their naturalization as citizens of a foreign country, can re-acquire or
retain his Philippine citizenship under the conditions of the law. The law does not provide for
residency requirement for the reacquisition or retention of Philippine citizenship; nor does it
mention any effect of such reacquisition or retention of Philippine citizenship on the current
residence of the concerned natural-born Filipino.

RA No. 9225 treats citizenship independently of residence. xxxx However,

when a natural-born Filipino with dual citizenship seeks for an elective public office, residency
in the Philippines becomes material. Xxxx

xxxx

The term “residence” is to be understood not in its common acceptation as referring to

“dwelling” or “habitation,” but rather to “domicile” or legal residence, that is, “the place where a
party actually or constructively has his permanent home, where he, no matter where he may be
found at any given time, eventually intends to return and remain (animus manendi).” A domicile
of origin is acquired by every person at birth. It is usually the place where the child’s parents
reside and continues until the same is abandoned by acquisition of new domicile (domicile of
choice). It consists not only in the intention to reside in a fixed place but also personal presence
in that place, coupled with conduct indicative of such intention.

Petitioner was a natural born Filipino who was born and raised in Uyugan, Batanes.
Thus, it could be said that he had his domicile of origin in Uyugan, Batanes. However, he later
worked in Canada and became a Canadian citizen. In Coquilla v. COMELEC, we ruled that
naturalization in a foreign country may result in an abandonment of domicile in
the Philippines. This holds true in petitioner's case as permanent resident status in Canada is
required for the acquisition of Canadian citizenship. Hence, petitioner had effectively
abandoned his domicile in the Philippines and transferred his domicile of choice in Canada. His
frequent visits to Uyugan, Batanes during his vacation from work in Canada cannot be
considered as waiver of such abandonment.

xxxx

The next question is what is the effect of petitioner's retention of his Philippine
citizenship under RA No. 9225 on his residence or domicile?

In Japzon v. COMELEC, wherein respondent Ty reacquired his Philippine citizenship

under RA No. 9225 and run for Mayor of General Macarthur, Eastern Samar and whose
residency in the said place was put in issue, we had the occasion to state, thus:

[Petitioner’s] reacquisition of his Philippine citizenship under Republic Act No.

9225 had no automatic impact or effect on his residence/domicile. He could still retain his
domicile in the USA, and he did not necessarily regain his domicile in the Municipality of
General Macarthur, Eastern Samar, Philippines. Ty merely had the option to again
establish his domicile in the Municipality of General Macarthur, Eastern Samar,
Philippines, said place becoming his new domicile of choice. The length of his residence
therein shall be determined from the time he made it his domicile of choice, and it shall
not retroact to the time of his birth.xxxx

Hence, petitioner’s retention of his Philippine citizenship under RA No. 9225 did not
automatically make him regain his residence in Uyugan, Batanes. He must still prove that after
becoming a Philippine citizen on September 13, 2012, he had reestablished Uyugan, Batanes as

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his new domicile of choice which is reckoned from the time he made it as such. (Caballero v.
Comelec, GR. No. 209835, September 22, 2015)

RULES ON RESOLUTION OF QUALIFICATIONS AND DISQUALIFICATIONS

The ballot cannot cure the vice of ineligibility; the ballot cannot override the
constitutional and statutory requirements for qualifications and disqualifications of
candidates.

The ballot cannot override the constitutional and statutory requirements for
qualifications and disqualifications of candidates. When the law requires certain qualifications
to be possessed or that certain disqualifications be not possessed by persons desiring to serve as
elective public officials, those qualifications must be met before one even becomes a candidate.
When a person who is not qualified is voted for and eventually garners the highest number of
votes, even the will of the electorate expressed through the ballot cannot cure the defect in the
qualifications of the candidate. To rule otherwise is to trample upon and rent asunder the very
law that sets forth the qualifications and disqualifications of candidates. We might as well write
off our election laws if the voice of the electorate is the sole determinant of who should be
proclaimed worthy to occupy elective positions in our republic.

This has been, in fact, already laid down by the Court in Frivaldo v. COMELEC when we
pronounced:
x x x. The fact that he was elected by the people of Sorsogon does not excuse this
patent violation of the salutary rule limiting public office and employment only to the
citizens of this country. The qualifications prescribed for elective office cannot be erased by
the electorate alone.

The will of the people as expressed through the ballot cannot cure the vice of
ineligibility, especially if they mistakenly believed, as in this case, that the candidate was
qualified. Obviously, this rule requires strict application when the deficiency is lack of
citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his
total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other
state. (Emphasis supplied)

(Maquiling v. Comelec, G.R. No. 195649, April 16, 2013)

Winning the elections cannot cure the defect of candidacy; disqualification is

not a matter of popularity.

The fact that petitioner won the elections cannot cure the defect of her candidacy.
Garnering the most number of votes does not validate the election of a disqualified candidate
because the application of the constitutional and statutory provisions on disqualification is not a
matter of popularity. (Sobejana-Condon v. Commission on Elections, G.R. No. 198742, August
10, 2012)

Burden of proof: To successfully challenge a winning candidate’s

qualifications, the petitioner must clearly demonstrate that the ineligibility is so
patently antagonistic to constitutional and legal principles.

We find it apt to reiterate in this regard the principle enunciated in the case of Frivaldo v.
Comelec, that "[i]n any action involving the possibility of a reversal of the popular electoral
choice, this Court must exert utmost effort to resolve the issues in a manner that would give
effect to the will of the majority, for it is merely sound public policy to cause elective offices
to be filled by those who are the choice of the majority."

To successfully challenge a winning candidate’s qualifications, the petitioner must clearly

demonstrate that the ineligibility is so patently antagonistic to constitutional and legal principles
that overriding such ineligibility and thereby giving effect to the apparent will of the people
would ultimately create greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and promote. The reason for such
liberality stems from the recognition that laws governing election contests must be construed to

85 | P a g e
the end that the will of the people in the choice of public officials may not be defeated by mere
technical objections.

Nonetheless, we wish to remind that COC defects beyond matters of form and that
involve material misrepresentations cannot avail of the benefit of our ruling that COC
mandatory requirements before elections are considered merely directory after the people shall
have spoken. In a choice between provisions on material qualifications of elected officials, on the
one hand, and the will of the electorate in any given locality, on the other, we believe and so hold
that we cannot choose the electorate’s will.

With the conclusion that Osmeña did not commit any material misrepresentation in his
COC, we see no reason in this case to appeal to the primacy of the electorate’s will. We cannot
deny, however, that the people of Toledo City have spoken in an election where residency
qualification had been squarely raised and their voice has erased any doubt about their verdict
on Osmeña’s qualifications. (Jalover v. Osmena, G.R. No. 209286, September 23, 2014)

Rule in case of doubt as to the winning candidate’s qualification: Courts must

respect the decision of the people and resolve all doubts in favor of the people’s
manifest will.

Jalosjos won and was proclaimed winner in the 2010 gubernatorial race for Zamboanga
Sibugay. The Court will respect the decision of the people of that province and resolve all doubts
regarding his qualification in his favor to breathe life to their manifest will. (Jalosjos v. Comelec,
G.R. No. 191970, April 24, 2012)

Rule in case the evidence of the alleged lack of residence qualification is weak
or inconclusive: The will of the electorate should be respected, for the purpose of
election laws is to give effect to, rather than frustrate, the will of the voters.

xxx [W]e do not lose sight of the fact that Lipa City voters manifested their own
judgment regarding the qualifications of petitioner when they voted for him, notwithstanding
that the issue of his residency qualification had been raised prior to the elections.

In this regard, we reiterate our ruling in Frivaldo v. Commission on Elections that "(t)o
successfully challenge a winning candidate's qualifications, the petitioner must clearly
demonstrate that the ineligibility is so patently antagonistic to constitutional and legal principles
that overriding such ineligibility and thereby giving effect to the apparent will of the people,
would ultimately create greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and promote."

Similarly, in Japzon v. Commission on Elections, we concluded that "when the evidence

of the alleged lack of residence qualification of a candidate for an elective position is weak or
inconclusive and it clearly appears that the purpose of the law would not be thwarted by
upholding the victor's right to the office, the will of the electorate should be respected. For the
purpose of election laws is to give effect to, rather than frustrate, the will of the voters."

In sum, we grant the Petition not only because petitioner sufficiently established his
compliance with the one-year residency requirement for local elective officials under the law.
We also recognize that "(a)bove and beyond all, the determination of the true will of the
electorate should be paramount. It is their voice, not ours or of anyone else, that must prevail.
This, in essence, is the democracy we continue to hold sacred." (Sabili v. Commission on
Elections, G.R. No. 193261, April 24, 2012)

ANNULMENT OF ELECTIONS

Requisites for nullifying elections: (1) The illegality of the ballots must affect
more than fifty percent (50%) of the votes cast on the specific precinct or precincts
sought to be annulled, or in case of the entire municipality, more than fifty percent
(50%) of its total precincts and the votes cast therein; and (2) It is impossible to
distinguish with reasonable certainty between the lawful and unlawful ballots.

[T]he power to declare a failure of elections should be exercised with utmost care and
only under circumstances which demonstrate beyond doubt that the disregard of the law had
been so fundamental or so persistent and continuous that it is impossible to distinguish what
votes are lawful and what are unlawful, or to arrive at any certain result whatsoever, or that the
86 | P a g e
great body of the voters have been prevented by violence, intimidation and threats from
exercising their franchise." Consequently, a protestant alleging terrorism in an election protest
must establish by clear and convincing evidence that the will of the majority has been muted
by"violence, intimidation or threats.

xxx

There are two (2) indispensable requisites that must concur in order to justify the drastic
action of nullifying the election:

(1) The illegality of the ballots must affect more than fifty percent (50%) of the votes cast
on the specific precinct or precincts sought to be annulled, or in case of the entire
municipality, more than fifty percent (50%) of its total precincts and the votes cast
therein; and

(2) It is impossible to distinguish with reasonable certainty between the lawful and
unlawful ballots. (Abayon v. House of Representatives, G.R. No. 222236, May 3, 2016)

REAPPORTIONMENT: CREATION OF LEGISLATIVE DISTRICT

A city must first attain the 250,000 population, and thereafter, in the
immediately following election, such city shall have a district representative.

Petitioners, taxpayers, registered voters and residents of Malolos City, filed this petition
contending that RA 9591 is unconstitutional for failing to meet the minimum population
threshold of 250,000 for a city to merit representation in Congress as provided under Section
5(3), Article VI of the 1987 Constitution and Section 3 of the Ordinance appended to the 1987
Constitution.

xxx

The 1987 Constitution requires that for a city to have a legislative district, the city must
have "a population of at least two hundred fifty thousand." The only issue here is whether the
City of Malolos has a population of at least 250,000, whether actual or projected, for the
purpose of creating a legislative district for the City of Malolos in time for the 10 May 2010
elections.

xxx

A city that has attained a population of 250,000 is entitled to a legislative district only in
the "immediately following election." In short, a city must first attain the 250,000 population,
and thereafter, in the immediately following election, such city shall have a district
representative. There is no showing in the present case that the City of Malolos has attained or
will attain a population of 250,000, whether actual or projected, before the 10 May 2010
elections.

Clearly, there is no official record that the population of the City of Malolos will be at
least 250,000, actual or projected, prior to the 10 May 2010 elections, the immediately following
election after the supposed attainment of such population. Thus, the City of Malolos is not
qualified to have a legislative district of its own under Section 5(3), Article VI of the 1987
Constitution and Section 3 of the Ordinance appended to the 1987 Constitution. (Aldaba v.
Comelec, G.R No. 188078, January 25, 2010)

THREE-TERM LIMIT RULE

To constitute a disqualification to run for an elective local office, the following

requisites must concur: (1) that the official concerned has been elected for three
consecutive terms in the same local government post; and (2) that he has fully
served three consecutive terms. A mayor -- who actually held the office and
exercised his functions as mayor only after he was declared the winner in an
election protest, and thus began serving in office only during the middle of his term

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-- cannot be considered to have fully served his term for purposes of the three-term
limit rule.

For four (4) successive regular elections, namely, the 2001, 2004, 2007 and 2010
national and local elections, Abundo vied for the position of municipal mayor of Viga,
Catanduanes. In both the 2001 and 2007 runs, he emerged and was proclaimed as the winning
mayoralty candidate and accordingly served the corresponding terms as mayor. In the 2004
electoral derby, however, the Viga municipal board of canvassers initially proclaimed as winner
one Jose Torres (Torres), who, in due time, performed the functions of the office of mayor.
Abundo protested Torres’ election and proclamation. Abundo was eventually declared the
winner of the 2004 mayoralty electoral contest, paving the way for his assumption of office
starting May 9, 2006 until the end of the 2004-2007 term on June 30, 2007, or for a period of a
little over one year and one month.

Then came the May 10, 2010 elections where Abundo and Torres again opposed each
other. When Abundo filed his certificate of candidacy for the mayoralty seat relative to this
electoral contest, Torres lost no time in seeking the former’s disqualification to run, the
corresponding petition xxx, predicated on the three-consecutive term limit rule. Xxx

xxx

The pivotal determinative issue then is whether the service of a term less than the full
three years by an elected official arising from his being declared as the duly elected official upon
an election protest is considered as full service of the term for purposes of the application of the
three consecutive term limit for elective local officials.

On this core issue, We find the petition meritorious. The consecutiveness of what
otherwise would have been Abundo’s three successive, continuous mayorship was effectively
broken during the 2004-2007 term when he was initially deprived of title to, and was veritably
disallowed to serve and occupy, an office to which he, after due proceedings, was eventually
declared to have been the rightful choice of the electorate.

The three-term limit rule for elective local officials, a disqualification rule, is found in
Section 8, Article X of the 1987 Constitution, which provides:

Sec. 8. 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 the office for any length of time
shall not be considered as an interruption in the continuity of his service for the full term
for which he was elected. (Emphasis supplied.)

and is reiterated in Sec. 43(b) of Republic Act No. (RA) 7160, or the Local Government
Code (LGC) of 1991, xxx.

xxx

To constitute a disqualification to run for an elective local office pursuant to the

aforequoted constitutional and statutory provisions, the following requisites must concur:
(1) that the official concerned has been elected for three consecutive terms in the same
local government post; and
(2) that he has fully served three consecutive terms.

xxx

As is clearly provided in Sec. 8, Art. X of the Constitution as well as in Sec. 43(b) of the
LGC, voluntary renunciation of the office by the incumbent elective local official for any length
of time shall NOT, in determining service for three consecutive terms, be considered an
interruption in the continuity of service for the full term for which the elective official concerned
was elected. In Aldovino, Jr., however, the Court stated the observation that the law "does not
textually state that voluntary renunciation is the only actual interruption of service that does not
affect ‘continuity of service for a full term’ for purposes of the three-term limit rule."

As stressed in Socrates v. Commission on Elections, the principle behind the three-term

limit rule covers only consecutive terms and that what the Constitution prohibits is a
consecutive fourth term. xxx

There has, in fine, to be a break or interruption in the successive terms of the official
after his or her third term. An interruption usually occurs when the official does not seek a
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fourth term, immediately following the third. Of course, the basic law is unequivocal that a
"voluntary renunciation of the office for any length of time shall NOT be considered an
interruption in the continuity of service for the full term for which the elective official concerned
was elected." This qualification was made as a deterrent against an elective local official
intending to skirt the three-term limit rule by merely resigning before his or her third term ends.
This is a voluntary interruption as distinguished from involuntary interruption which may be
brought about by certain events or causes.

xxx

To summarize, hereunder are the prevailing jurisprudence on issues affecting

consecutiveness of terms and/or involuntary interruption, viz:

1. When a permanent vacancy occurs in an elective position and the official merely
assumed the position pursuant to the rules on succession under the LGC, then his service for the
unexpired portion of the term of the replaced official cannot be treated as one full term as
contemplated under the subject constitutional and statutory provision that service cannot be
counted in the application of any term limit (Borja, Jr.). If the official runs again for the same
position he held prior to his assumption of the higher office, then his succession to said position
is by operation of law and is considered an involuntary severance or interruption (Montebon).

2. An elective official, who has served for three consecutive terms and who did not seek
the elective position for what could be his fourth term, but later won in a recall election, had an
interruption in the continuity of the official’s service. For, he had become in the interim, i.e.,
from the end of the 3rd term up to the recall election, a private citizen (Adormeo and Socrates).

3. The abolition of an elective local office due to the conversion of a municipality to a city
does not, by itself, work to interrupt the incumbent official’s continuity of service (Latasa).

4. Preventive suspension is not a term-interrupting event as the elective officer’s

continued stay and entitlement to the office remain unaffected during the period of suspension,
although he is barred from exercising the functions of his office during this period (Aldovino,
Jr.).

5. When a candidate is proclaimed as winner for an elective position and assumes office,
his term is interrupted when he loses in an election protest and is ousted from office, thus
disenabling him from serving what would otherwise be the unexpired portion of his term of
office had the protest been dismissed (Lonzanida and Dizon). The break or interruption need
not be for a full term of three years or for the major part of the 3-year term; an interruption for
any length of time, provided the cause is involuntary, is sufficient to break the continuity of
service (Socrates, citing Lonzanida).

6. When an official is defeated in an election protest and said decision becomes final
after said official had served the full term for said office, then his loss in the election contest does
not constitute an interruption since he has managed to serve the term from start to finish. His
full service, despite the defeat, should be counted in the application of term limits because the
nullification of his proclamation came after the expiration of the term (Ong and Rivera).

xxx

It bears to stress at this juncture that Abundo, for the 2004 election for the term starting
July 1, 2004 to June 30, 2007, was the duly elected mayor. xxx Accordingly, the first requisite
for the application of the disqualification rule based on the three-term limit that the official has
been elected is satisfied.

This thus brings us to the second requisite of whether or not Abundo had served for
"three consecutive terms," as the phrase is juridically understood, as mayor of Viga,
Catanduanes immediately before the 2010 national and local elections. Subsumed to this issue is
of course the question of whether or not there was an effective involuntary interruption during
the three three-year periods, resulting in the disruption of the continuity of Abundo’s mayoralty.

The facts of the case clearly point to an involuntary interruption during the July 2004-
June 2007 term.

There can be no quibbling that, during the term 2004-2007, and with the enforcement of
the decision of the election protest in his favor, Abundo assumed the mayoralty post only on
May 9, 2006 and served the term until June 30, 2007 or for a period of a little over one year and

89 | P a g e
one month. Consequently, unlike Mayor Ong in Ong and Mayor Morales in Rivera, it cannot be
said that Mayor Abundo was able to serve fully the entire 2004-2007 term to which he was
otherwise entitled.

xxx

In the present case, during the period of one year and ten months, or from June 30,
2004 until May 8, 2006, Abundo cannot plausibly claim, even if he wanted to, that he could
hold office of the mayor as a matter of right. Neither can he assert title to the same nor serve the
functions of the said elective office. The reason is simple: during that period, title to hold such
office and the corresponding right to assume the functions thereof still belonged to his
opponent, as proclaimed election winner. Accordingly, Abundo actually held the office and
exercised the functions as mayor only upon his declaration, following the resolution of the
protest, as duly elected candidate in the May 2004 elections or for only a little over one year and
one month. Consequently, since the legally contemplated full term for local elected officials is
three (3) years, it cannot be said that Abundo fully served the term 2004-2007. The reality on
the ground is that Abundo actually served less.

Needless to stress, the almost two-year period during which Abundo’s opponent actually
served as Mayor is and ought to be considered an involuntary interruption of Abundo’s
continuity of service. An involuntary interrupted term, cannot, in the context of the
disqualification rule, be considered as one term for purposes of counting the three-term
threshold.

The notion of full service of three consecutive terms is related to the concepts of
interruption of service and voluntary renunciation of service. The word interruption means
temporary cessation, intermission or suspension. To interrupt is to obstruct, thwart or prevent.
When the Constitution and the LGC of 1991 speak of interruption, the reference is to the
obstruction to the continuance of the service by the concerned elected official by effectively
cutting short the service of a term or giving a hiatus in the occupation of the elective office. On
the other hand, the word "renunciation" connotes the idea of waiver or abandonment of a
known right. To renounce is to give up, abandon, decline or resign. Voluntary renunciation of
the office by an elective local official would thus mean to give up or abandon the title to the
office and to cut short the service of the term the concerned elected official is entitled to.

xxx

In the case at bar, respondent cannot be said to have lost his title to the office. On the
contrary, he actively sought entitlement to the office when he lodged the election protest case.
And respondent-appellant’s victory in the said case is a final confirmation that he was validly
elected for the mayoralty post of Viga, Catanduanes in 2004-2007. At most, respondent-
appellant was only unable to temporarily discharge the functions of the office to which he was
validly elected during the pendency of the election protest, but he never lost title to the said
office. (Emphasis added.)

xxx
As previously stated, the declaration of being the winner in an election protest grants the
local elected official the right to serve the unexpired portion of the term. Verily, while he was
declared winner in the protest for the mayoralty seat for the 2004-2007 term, Abundo’s full
term has been substantially reduced by the actual service rendered by his opponent (Torres).
Hence, there was actual involuntary interruption in the term of Abundo and he cannot be
considered to have served the full 2004-2007 term.

xxx

Aldovino Jr. cannot possibly lend support to respondent’s cause of action, or to

COMELEC’s resolution against Abundo. In Aldovino Jr., the Court succinctly defines what
temporary inability or disqualification to exercise the functions of an elective office means, thus:

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. We rule that the above pronouncement on preventive
suspension does not apply to the instant case. Verily, it is erroneous to say that Abundo merely
was temporarily unable or disqualified to exercise the functions of an elective post. For one,
during the intervening period of almost two years, reckoned from the start of the 2004-2007

90 | P a g e
term, Abundo cannot be said to have retained title to the mayoralty office as he was at that time
not the duly proclaimed winner who would have the legal right to assume and serve such
elective office. For another, not having been declared winner yet, Abundo cannot be said to have
lost title to the office since one cannot plausibly lose a title which, in the first place, he did not
have. Thus, for all intents and purposes, even if the belated declaration in the election protest
accords him title to the elective office from the start of the term, Abundo was not entitled to the
elective office until the election protest was finally resolved in his favor.

Consequently, there was a hiatus of almost two years, consisting of a break and effective
interruption of his service, until he assumed the office and served barely over a year of the
remaining term. xxxx

As aptly stated in Latasa, to be considered as interruption of service, the "law

contemplates a rest period during which the local elective official steps down from office and
ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a
particular local government unit." Applying the said principle in the present case, there is no
question that during the pendency of the election protest, Abundo ceased from exercising power
or authority over the good people of Viga, Catanduanes.

Consequently, the period during which Abundo was not serving as mayor should be
considered as a rest period or break in his service because, as earlier stated, prior to the
judgment in the election protest, it was Abundo’s opponent, Torres, who was exercising such
powers by virtue of the still then valid proclamation. (Abundo v. Comelec, G.R. No. 201716,
January 8, 2013)

Two conditions must concur for the application of the disqualification of a

candidate based on violation of the three-term limit rule, which are: (1) that the
official concerned has been elected for three consecutive terms in the same local
government post, and (2) that he has fully served three consecutive terms. A
governor who was proclaimed in March 2010 and served as such only until June 30,
did not have a complete and full service of his three-year term.

Petitioner alleges that since respondent had already been elected and had served as
Governor of Camarines Norte for three consecutive terms, i.e., 2007, 2010, and 2013, he is
proscribed from running for the same position in the 2016 elections as it would already be his
fourth consecutive term.

We are not convinced.

We held that two conditions must concur for the application of the disqualification of a
candidate based on violation of the three-term limit rule, which are: (1) that the official
concerned has been elected for three consecutive terms in the same local government post, and
(2) that he has fully served three consecutive terms.

xxx As worded, the constitutional provision fixes the term of a local elective office and
limits an elective official's stay in office to no more than three consecutive terms. x x x

Significantly, this provision refers to a "term" as a period of time - three years - during
which an official has title to office and can serve. xxxx

A later case, Gaminde v. Commission on Audit, reiterated that the term means the time
during which the officer may claim to hold office as of right, and fixes the interval after which
the several incumbents shall succeed one another.

In this case, while respondent ran as Governor of Camarines Norte in the 2007 elections,
he did not win as such. It was only after he filed a petition for correction of manifest error that
he was proclaimed as the duly-elected Governor. He assumed the post and served the unexpired
term of his opponent from March 22, 2010 until June 30, 2010. Consequently, he did not hold
the office for the full term of three years to which he was supposedly entitled to. Thus, such
period of time that respondent served as Governor did not constitute a complete and full service
of his term. The period when he was out of office involuntarily interrupted the continuity of his
service as Governor. As he had not fully served the 2007-2010 term, and had not been elected
for three consecutive terms as Governor, there was no violation of the three-term limit rule
when he ran again in the 2016 elections.

xxxx
91 | P a g e
 Applying the foregoing in the instant case, since Respondent did not serve the full 2007-
2010 term, it cannot be considered as one term for purposes of counting the three-term
threshold. Consequently, Respondent cannot be said to have continuously served as Governor
for three consecutive terms prior to the 2016 elections. (Albania v. Comelec, June 6, 2017, G.R.
No. 226792)

The three-term limit rule must be strictly applied. In case of legislative

reapportionment, where the district is practically the same as the district that
previously elected the same candidate, the three-term limit rule applies.

A provincial board member cannot be elected and serve for more than three consecutive
terms. But then, the Court is now called upon to resolve the following questions. First. What are
the consequences to the provincial board member’s eligibility to run for the same elective
position if the legislative district, which brought him or her to office to serve the first two
consecutive terms, be reapportioned in such a way that 8 out of its 10 town constituencies are
carved out and renamed as another district? Second. Is the provincial board member’s election
to the same position for the third and fourth time, but now in representation of the renamed
district, a violation of the three-term limit rule?

xxx

In Latasa, the issue arose as a result of the conversion of a municipality into a city. The
then municipal mayor attempted to evade the application upon him of the three-term limit rule
by arguing that the position of a city mayor was not the same as the one he previously held. The
Court was not convinced and, thus, declared that there was no interruption of the incumbent
mayor’s continuity of service.

In Lonzanida, a candidate ran for the mayoralty post and won in three consecutive
elections. While serving his third term, his opponent filed an election protest. Months before the
expiration of the mayor’s third term, he was ousted from office. He ran again for the same post
in the immediately succeeding election. A petition was thereafter filed assailing his eligibility to
run as mayor on the ground of violation of the three-term limit rule. The Court ruled that the
mayor could not be considered as having served a full third term. An interruption for any length
of time, if due to an involuntary cause, is enough to break the elected official’s continuity of
service.

In Borja, the mayor of Pateros died and was succeeded in office by the vice mayor. In the
two immediately succeeding elections, the latter vied for and won the mayoralty post. When he
ran for the same position for the third time, his disqualification was sought for alleged violation
of the three-term limit rule. The Court ruled that when he assumed the position of mayor by
virtue of succession, his service should not be treated as one full term. For the disqualification to
apply, the candidate should have been thrice elected for and had served the same post
consecutively.

In Aldovino, preventive suspension was imposed upon an elected municipal councilor.

The Court ruled that the said suspension did not interrupt the elective official’s term. Although
he was barred from exercising the functions of the position during the period of suspension, his
continued stay and entitlement to the office remain unaffected.

In Bandillo, a case decided by the COMELEC, Gainza and Milaor were added to five of
the ten towns, which used to comprise Camarines Sur’s old First District, to form the new
Second District. The COMELEC declined to apply the three-term limit rule against the elected
Provincial Board member on the ground that the addition of Gainza and Milaor distinctively
created a new district, with an altered territory and constituency.

xxx

xxx The required gap after three consecutive elections is significant. Thus, the rule
cannot be taken with a grain of salt. Nothing less than its strict application is called for.

xxx

Reapportionment is "the realignment or change in legislative districts brought about by

changes in population and mandated by the constitutional requirement of equality of
representation." The aim of legislative apportionment is to equalize population and voting
power among districts. The basis for districting shall be the number of the inhabitants of a city
or a province and not the number of registered voters therein.
92 | P a g e
 xxx

As a result of the reapportionment made by R.A. No. 9716, the old Second District of
Camarines Sur, minus only the two towns of Gainza and Milaor, is renamed as the Third
District. xxx

xxx

xxx A complete reading of R.A. No. 9716 yields no logical conclusion other than that the
lawmakers intended the old Second District to be merely renamed as the current Third District.

xxx [T]he actual difference in the population of the old Second District from that of the
current Third District amounts to less than 10% of the population of the latter. This numerical
fact renders the new Third District as essentially, although not literally, the same as the old
Second District. Hence, while Naval is correct in his argument that Sanggunian members are
elected by district, it does not alter the fact that the district which elected him for the third and
fourth time is the same one which brought him to office in 2004 and 2007.

xxx

Naval’s ineligibility to run, by reason of violation of the three-term limit rule, does not
undermine the right to equal representation of any of the districts in Camarines Sur. With or
without him, the renamed Third District, which he labels as a new set of constituents, would still
be represented, albeit by another eligible person. (Naval v. Comelec, G.R. No. 207851, July 8,
2014)

AUTOMATED ELECTIONS

Picture images of the ballots, as scanned and recorded by the PCOS, are
likewise "official ballots. The printouts thereof may be used for purposes of revision
of votes in an electoral protest.

An automated election system, or AES, is a system using appropriate technology which

has been demonstrated in the voting, counting, consolidating, canvassing, and transmission of
election result, and other electoral process. There are two types of AES identified under R.A. No.
9369: (1) paper-based election system; and (2) direct recording electronic election system. A
paper-based election system, such as the one adopted during the May 10, 2010 elections, is the
type of AES that "use paper ballots, records and counts votes, tabulates, consolidates/canvasses
and transmits electronically the results of the vote count."

The May 10, 2010 elections used a paper-based technology that allowed voters to fill out
an official paper ballot by shading the oval opposite the names of their chosen candidates. Each
voter was then required to personally feed his ballot into the Precinct Count Optical Scan
(PCOS) machine which scanned both sides of the ballots simultaneously, meaning, in just one
pass. As established during the required demo tests, the system captured the images of the
ballots in encrypted format which, when decrypted for verification, were found to be digitized
representations of the ballots cast.

We agree, therefore, with both the HRET and Panotes that the picture images of the
ballots, as scanned and recorded by the PCOS, are likewise "official ballots" that faithfully
captures in electronic form the votes cast by the voter, as defined by Section 2 (3) of R.A. No.
9369. As such, the printouts thereof are the functional equivalent of the paper ballots filled out
by the voters and, thus, may be used for purposes of revision of votes in an electoral protest.
(Vinzon’s-Chato v. House of Representatives Electoral Tribunal, G.R. No. 199149, January 22,
2013)

LOCAL GOVERNMENT

MEANING AND EXTENT OF LOCAL AUTONOMY

The concept of local autonomy does not imply the conversion of local
government units into "mini-states." The national government has not completely
relinquished all its powers over local governments. Only administrative powers over
local affairs are delegated to political subdivisions. Policy-setting for the entire
country still lies in the President and Congress. Thus, the national government is not

93 | P a g e
precluded from taking a direct hand in the formulation and implementation of
national social welfare programs.

In 2007, the DSWD embarked on a poverty reduction strategy with the poorest of the
poor as target beneficiaries.2 Dubbed "Ahon Pamilyang Pilipino," xxx.

xxx

This government intervention scheme, also conveniently referred to as CCTP, "provides

cash grant to extreme poor households to allow the members of the families to meet certain
human development goals."

Eligible households that are selected from priority target areas consisting of the poorest
provinces classified by the National Statistical Coordination Board (NCSB) are granted a health
assistance of P500.00/month, or P6,000.00/year, and an educational assistance of
P300.00/month for 10 months, or a total of P3,000.00/year, for each child but up to a
maximum of three children per family.xxx

xxx

Petitioners assert that giving the DSWD full control over the identification of
beneficiaries and the manner by which services are to be delivered or conditionalities are to be
complied with, instead of allocating the P21 Billion CCTP Budget directly to the LGUs that
would have enhanced its delivery of basic services, results in the "recentralization" of basic
government functions, which is contrary to the precepts of local autonomy and the avowed
policy of decentralization.

xxx

xxx [W]hile it is through a system of decentralization that the State shall promote a
more responsive and accountable local government structure, the concept of local autonomy
does not imply the conversion of local government units into "mini-states." We explained that,
with local autonomy, the Constitution did nothing more than "to break up the monopoly of the
national government over the affairs of the local government" and, thus, did not intend to sever
"the relation of partnership and interdependence between the central administration and local
government units."

In Pimentel v. Aguirre, the Court defined the extent of the local government's autonomy
in terms of its partnership with the national government in the pursuit of common national
goals, referring to such key concepts as integration and coordination. Thus:
Under the Philippine concept of local autonomy, the national government has not
completely relinquished all its powers over local governments, including autonomous
regions. Only administrative powers over local affairs are delegated to political
subdivisions. The purpose of the delegation is to make governance more directly responsive
and effective at the local levels. In turn, economic, political and social development at the
smaller political units are expected to propel social and economic growth and development.
But to enable the country to develop as a whole, the programs and policies effected locally
must be integrated and coordinated towards a common national goal. Thus, policy-setting
for the entire country still lies in the President and Congress.

Certainly, to yield unreserved power of governance to the local government unit as to

preclude any and all involvement by the national government in programs implemented in the
local level would be to shift the tide of monopolistic power to the other extreme, which would
amount to a decentralization of power explicated in Limbona v. Mangelin as beyond our
constitutional concept of autonomy, thus:
Now, autonomy is either decentralization of administration or decentralization of
power. There is decentralization of administration when the central government delegates
administrative powers to political subdivisions in order to broaden the base of government
power and in the process to make local governments ‘more responsive and accountable’
and ‘ensure their fullest development as self-reliant communities and make them more
effective partners in the pursuit of national development and social progress.’ At the same
time, it relieves the central government of the burden of managing local affairs and enables
it to concentrate on national concerns. The President exercises ‘general supervision’ over
them, but only to ‘ensure that local affairs are administered according to law.’ He has no
control over their acts in the sense that he can substitute their judgments with his own.

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

power in the [sic] favor of local governments [sic] units declared to be autonomous. In that
case, the autonomous government is free to chart its own destiny and shape its future with
minimum intervention from central authorities. xxx
94 | P a g e
 Indeed, a complete relinquishment of central government powers on the matter of
providing basic facilities and services cannot be implied as the Local Government Code itself
weighs against it. The national government is, thus, not precluded from taking a direct hand in
the formulation and implementation of national development programs especially where it is
implemented locally in coordination with the LGUs concerned. (Pimentel v. Executive
Secretary, G.R. No. 195770, July 17, 2012)

The policy of ensuring the autonomy of local governments was not intended
to create an imperium in imperio and install intra-sovereign political subdivisions
independent of the sovereign state. Local ordinances must be inconsistent with the
laws or policy of the State. Local governments are precluded from regulating
conduct already covered by a statute involving the same subject matter. Thus, an
ordinance that seeks to control and regulate the use of ground water within a City, a
power that pertains solely to the NWRB under the Water Code – is ultra vires and
void.

The policy of ensuring the autonomy of local governments was not intended to create
an imperium in imperio and install intra-sovereign political subdivisions independent of the
sovereign state. As agents of the state, local governments should· bear in mind that the police
power devolved to them by law must be, at all times, exercised in a manner consistent with the
will of their principal.

xxxx

On May 28, 2001, the Sangguniang Panlungsod [of Batangas City] enacted the Assailed
Ordinance which requires heavy industries operating along the portions of Batangas Bay within
the territorial jurisdiction of Batangas City to construct desalination plants to facilitate the use
of seawater as coolant for their industrial facilities.

Heavy industries subject of the Assailed Ordinance had until May 28, 2006 to comply
with its provisions. Among the facilities affected by the Assailed Ordinance is PSPC's Tabangao
Refinery.

xxx

Batangas City contends that it has the legal authority to enact ordinances in the exercise
of its police power for the purpose of promoting the general welfare of its inhabitants. Thus, it
asserts that it has the power to regulate PSPC's and SPEX's right to use ground water, as
continued use would be injurious to public interest.

Further, Batangas City insists that there is factual basis to justify the enactment of the
Assailed Ordinance. As testified to by barangay captains Joel Caaway and Calixto Villena, a
gradual change in the quality and quantity of ground water had taken place due to the increase
in the number of industrial plants along Batangas Bay. xxx

xxx

The Assailed Ordinance is void for being ultra vires, for being contrary to existing law,
and for lack of evidence showing the existence of factual basis for its enactment.

xxxx

Batangas City claims that the enactment of the Assailed Ordinance constitutes a valid
exercise of its police power. This claim is erroneous.

xxxx

Since LGUs exercise delegated police power as agents of the State, it is incumbent upon
them to act in conformity to the will of their principal, the State. Necessarily, therefore,
ordinances enacted pursuant to the general welfare clause may not subvert the State's will by
contradicting national statutes. Thus, in Batangas CATV, Inc. v. Court of Appeals, the Court
struck down an ordinance enacted by Batangas City which granted the Sangguniang
Panlungsod the power to fix subscriber rates charged by CATV providers operating within the
former's territory, as this directly violated a general law which grants such power exclusively to
the National Telecommunications Commission. In so ruling, the Court stressed that
municipalities are precluded from regulating conduct already covered by a statute involving the
same subject matter, hence:

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 In De la Cruz vs. Paraz, we laid the general rule "that ordinances passed by virtue
of the implied power found in the general welfare clause must be reasonable, consonant
with the general powers and purposes of the corporation, and not inconsistent with the
laws or policy of the State."

xxxx

In this regard, it is appropriate to stress that where the state legislature has made
provision for the regulation of conduct, it has manifested its intention that the subject
matter shall be fully covered by the statute, and that a municipality, under its general
powers, cannot regulate the same conduct.xxxx

It is a fundamental principle that municipal ordinances are inferior in status and

subordinate to the laws of the state. An ordinance in conflict with a state law of general
character and statewide application is universally held to be invalid. xxx In every power to
pass ordinances given to a municipality, there is an implied restriction that the
ordinances shall be consistent with the general law.x x x (Emphasis and underscoring
supplied)

xxx

The Water Code governs the ownership, appropriation, utilization, exploitation,

development, conservation and protection of water resources. Under Article 3 thereof, water
resources are placed under the control and regulation of the government through the National
Water Resources Council, now the NWRB. In turn, the privilege to appropriate and use water is
one which is exclusively granted and regulated by the State through water permits issued by the
NWRB. xxx

Conversely, the power to modify, suspend, cancel or revoke water permits already issued
also rests with NWRB.

On the other hand, the avowed purpose of the Assailed Ordinance, as stated in its
whereas clauses, is the protection of local aquifers for the benefit of the inhabitants of Batangas
City. Accordingly, the Assailed Ordinance mandates all heavy industries operating along
Batangas Bay to use seawater in the operation of their respective facilities, and install
desalination plants for this purpose. Failure to comply with this mandatory requirement would
have the effect of precluding continuous operation, and exposing noncompliant parties to penal
and administrative sanctions.

There is no doubt, therefore, that the Assailed Ordinance effectively contravenes the
provisions of the Water Code as it arrogates unto Batangas City the power to control and
regulate the use of ground water which, by virtue of the provisions of the Water Code, pertains
solely to the NWRB. By enacting the Assailed Ordinance, Batangas City acted in excess of the
powers granted to it as an LGU, rendering the Assailed Ordinance ultra vires.

Being ultra vires, the Assailed Ordinance, in its entirety, is null and void. (City of
Batangas v. Pilipinas Shell, G.R. No. 195003, June 7, 2017)

Congress retains control of the local government units although in

significantly reduced degree now than under our previous Constitutions. True, there
are certain notable innovations in the Constitution, like the direct conferment on the
local government units of the power to tax, which cannot now be withdrawn by
mere statute. By and large, however, the national legislature is still the principal of
the local government units, which cannot defy its will or modify or violate it.

An ordinance must pass muster under the test of constitutionality and the test of
consistency with the prevailing laws. If not, it is void. xxxx As to conformity with existing
statutes, Batangas CATV, Inc. v. Court of Appeals has this to say:
It is a fundamental principle that municipal ordinances are inferior in status and
subordinate to the laws of the state. An ordinance in conflict with a state law of general
character and statewide application is universally held to be invalid. xxx In the language
of Justice Isagani Cruz (ret.), this Court, in Magtajas vs. Pryce Properties Corp., Inc.,
ruled that:

xxx

This basic relationship between the national legislature and the local government
units has not been enfeebled by the new provisions in the Constitution strengthening the
policy of local autonomy. xxx Congress retains control of the local government units

96 | P a g e
 although in significantly reduced degree now than under our previous Constitutions. The
power to create still includes the power to destroy. The power to grant still includes the
power to withhold or recall. True, there are certain notable innovations in the
Constitution, like the direct conferment on the local government units of the power to tax,
which cannot now be withdrawn by mere statute. By and large, however, the national
legislature is still the principal of the local government units, which cannot defy its will or
modify or violate it.

xxx [T]he policy of ensuring the autonomy of local governments was never
intended by the drafters of the 1987 Constitution to create an imperium in imperio and
install an intra-sovereign political subdivision independent of a single sovereign state.
(Ferrer v. Bautista, G.R. No. 210551, June 30, 2015)

Consistent with the state policy of local autonomy as guaranteed by

the 1987 Constitution, the grant and release of the hospitalization and health
care insurance benefits given to local government officials and employees,
through an ordinance passed by petitioner’s Sangguniang Panlalawigan – is
valid – even without approval of the President. An LGU is only under the
President’s general supervision, not control.

In the present case, petitioner, through an approved Sangguniang

Panlalawigan resolution, granted and released the disbursement for the hospitalization
and health care insurance benefits of the province’s officials and employees without any
prior approval from the President. The COA disallowed the premium payment for such
benefits since petitioner disregarded AO 103 and RA 6758.

We disagree with the COA. From a close reading of the provisions of AO 103,
petitioner did not violate the rule of prior approval from the President since Section 2
states that the prohibition applies only to "government offices/agencies, including
government-owned and/or controlled corporations, as well as their respective
governing boards." Nowhere is it indicated in Section 2 that the prohibition also applies
to LGUs. The requirement then of prior approval from the President under AO 103 is
applicable only to departments, bureaus, offices and government-owned and controlled
corporations under the Executive branch. In other words, AO 103 must be observed by
government offices under the President’s control as mandated by Section 17, Article VII
of the Constitution which states:

Section 17. The President shall have control of

all executive departments, bureaus and offices. He shall ensure that
the laws be faithfully executed. (Emphasis supplied)

Being an LGU, petitioner is merely under the President’s general supervision pursuant to
Section 4, Article X of the Constitution:

Sec. 4. The President of the Philippines shall exercise

general supervision over local governments. Provinces with
respect to component cities and municipalities, and cities and
municipalities with respect to component barangays shall ensure that the
acts of their component units are within the scope of their prescribed
powers and functions. (Emphasis supplied)

The President’s power of general supervision means the power of a superior officer to see
to it that subordinates perform their functions according to law. This is distinguished from the
President’s power of control which is the power to alter or modify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment of
the President over that of the subordinate officer. The power of control gives the President the
power to revise or reverse the acts or decisions of a subordinate officer involving the exercise of
discretion.

Since LGUs are subject only to the power of general supervision of the President, the
President’s authority is limited to seeing to it that rules are followed and laws are faithfully
executed. The President may only point out that rules have not been followed but the President
cannot lay down the rules, neither does he have the discretion to modify or replace the rules.
Thus, the grant of additional compensation like hospitalization and health care insurance
benefits in the present case does not need the approval of the President to be valid.

xxx

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 Thus, consistent with the state policy of local autonomy as guaranteed by the 1987
Constitution, under Section 25, Article II and Section 2, Article X, and the Local Government
Code of 1991, we declare that the grant and release of the hospitalization and health care
insurance benefits given to petitioner’s officials and employees were validly enacted through an
ordinance passed by petitioner’s Sangguniang Panlalawigan.

In sum, since petitioner’s grant and release of the questioned disbursement without the
President’s approval did not violate the President’s directive in AO 103, the COA then gravely
abused its discretion in applying AO 103 to disallow the premium payment for the
hospitalization and health care insurance benefits of petitioner’s officials and employees.
(Province of Negros Occidental v. Commissioners, Commission on Audit, G.R. No. 182574,
September 28, 2010)

POWER OF LGUS TO ENACT ORDINANCE

An ordinance to promote the general welfare in terms of economic benefits

cannot override the very basic rights to life, security and safety of the people. In the
absence of any convincing reason that the life, security and safety of the inhabitants
of Manila are no longer put at risk by the presence of the oil depots in Pandacan,
Ordinance No. 8187 in favor of the retention of the oil depots is invalid and
unconstitutional.

These petitions are a sequel to the case of Social Justice Society v. Mayor Atienza, Jr.
(hereinafter referred to asG.R. No. 156052), where the Court found: (1) that the ordinance
subject thereof – Ordinance No. 8027 – was enacted "to safeguard the rights to life, security and
safety of the inhabitants of Manila;" (2) that it had passed the tests of a valid ordinance; and (3)
that it is not superseded by Ordinance No. 8119. Declaring that it is constitutional and valid, the
Court accordingly ordered its immediate enforcement with a specific directive on the relocation
and transfer of the Pandacan oil terminals.

Highlighting that the Court has so ruled that the Pandacan oil depots should leave,
herein petitioners now seek the nullification of Ordinance No. 8187, which contains provisions
contrary to those embodied in Ordinance No. 8027. Allegations of violation of the right to health
and the right to a healthful and balanced environment are also included.

xxx

The petitioners’ arguments are primarily anchored on the ruling of the Court in G. R. No.
156052 declaring Ordinance No. 8027 constitutional and valid after finding that the presence of
the oil terminals in Pandacan is a threat to the life and security of the people of Manila. From
thence, the petitioners enumerated constitutional provisions, municipal laws and international
treaties and conventions on health and environment protection allegedly violated by the
enactment of the assailed Ordinance to support their position.

The resolution of the present controversy is, thus, confined to the determination of
whether or not the enactment of the assailed Ordinance allowing the continued stay of the oil
companies in the depots is, indeed, invalid and unconstitutional.

Our Ruling

We see no reason why Ordinance No. 8187 should not be stricken down insofar as the
presence of the oil depots in Pandacan is concerned.

xxx

The Local Government Code of 1991 expressly provides that the Sangguniang
Panlungsod is vested with the power to "reclassify land within the jurisdiction of the city"
subject to the pertinent provisions of the Code. It is also settled that an ordinance may be
modified or repealed by another ordinance. These have been properly applied in G.R. No.
156052, where the Court upheld the position of the Sangguniang Panlungsod to reclassify the
land subject of the Ordinance, and declared that the mayor has the duty to enforce Ordinance
No. 8027, provided that it has not been repealed by the Sangguniang Panlungsod or otherwise
annulled by the courts. In the same case, the Court also used the principle that the Sanguniang
Panlungsod is in the best position to determine the needs of its Constituents – that the removal
of the oil depots from the Pandacan area is necessary "to protect the residents of Manila from
catastrophic devastation in case of a terrorist attack on the Pandacan Terminals."

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 Do all these principles equally apply to the cases at bar involving the same subject matter
to justify the contrary provisions of the assailed Ordinance?

We answer in the negative.

xxx In 2001, the Sanggunian found the relocation of the Pandacan oil depots necessary.
Hence, the enactment of Ordinance No. 8027.

In 2009, when the composition of the Sanggunian had already changed, Ordinance No.
8187 was passed in favor of the retention of the oil depots. In 2012, again when some of the
previous members were no longer re-elected, but with the Vice-Mayor still holding the same
seat, and pending the resolution of these petitions, Ordinance No. 8283 was enacted to give the
oil depots until the end of January 2016 within which to transfer to another site. Former Mayor
Lim stood his ground and vetoed the last ordinance.

In its Comment, the 7th Council (2007-2010) alleged that the assailed Ordinance was
enacted to alleviate the economic condition of its constituents.

Expressing the same position, former Mayor Lim even went to the extent of detailing the
steps he took prior to the signing of the Ordinance, if only to show his honest intention to make
the right decision.

The fact remains, however, that notwithstanding that the conditions with respect to the
operations of the oil depots existing prior to the enactment of Ordinance No. 8027 do not
substantially differ to this day, as would later be discussed, the position of the Sangguniang
Panlungsod on the matter has thrice changed, largely depending on the new composition of the
council and/or political affiliations. The foregoing, thus, shows that its determination of the
"general welfare" of the city does not after all gear towards the protection of the people in its
true sense and meaning, but is, one way or another, dependent on the personal preference of the
members who sit in the council as to which particular sector among its constituents it wishes to
favor.

xxx

The measures taken by the intervenors to lend support to their position that Manila is
now safe despite the presence of the oil terminals remain ineffective. These have not completely
removed the threat to the lives of the in habitants of Manila.

In G.R. No. 156052, the validity and constitutionality of Ordinance No. 8027 was
declared as a guarantee for the protection of the constitutional right to life of the residents of
Manila. There, the Court said that the enactment of the said ordinance was a valid exercise of
police power with the concurrence of the two requisites: a lawful subject – "to safeguard the
rights to life, security and safety of all the inhabitants of Manila;" and a lawful method – the
enactment of Ordinance No. 8027 reclassifying the land use from industrial to commercial,
which effectively ends the continued stay of the oil depots in Pandacan.

In the present petitions, the respondents and the oil companies plead that the Pandacan
Terminal has never been one of the targets of terrorist attacks; that the petitions were based on
unfounded fears and mere conjectures; and that the possibility that it would be picked by the
terrorists is nil given the security measures installed thereat.

The intervenors went on to identify the measures taken to ensure the safety of the people
even with the presence of the Pandacan Terminals. xxx

xxx

Even assuming that the respondents and intervenors were correct, the very nature of the
depots where millions of liters of highly flammable and highly volatile products, regardless of
whether o rnot the composition may cause explosions, has no place in a densely populated area.
Surely, any untoward incident in the oil depots, be it related to terrorism of whatever origin or
otherwise, would definitely cause not only destruction to properties within and among the
neighboring communities but certainly mass deaths and injuries.

xxx

It is the removal of the danger to life not the mere subdual of risk of catastrophe, that we
saw in and made us favor Ordinance No. 8027. That reason, unaffected by Ordinance No. 8187,
compels the affirmance of our Decision in G.R. No. 156052.

In striking down the contrary provisions of the assailed Ordinance relative to the
continued stay of the oil depots, we follow the same line of reasoning used in G.R. No. 156052,
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to wit: Ordinance No. 8027 was enacted "for the purpose of promoting sound urban planning,
ensuring health, public safety and general welfare" of the residents of Manila. The Sanggunian
was impelled to take measures to protect the residents of Manila from catastrophic devastation
in case of a terrorist attack on the Pandacan Terminals. Towards this objective, the Sanggunian
reclassified the area defined in the ordinance from industrial to commercial.

xxx

The ordinance was intended to safeguard the rights to life, security and safety of all the
inhabitants of Manila and not just of a particular class. The depot is perceived, rightly or
wrongly, as a representation of western interests which means that it is a terrorist target. As long
as it (sic) there is such a target in their midst, the residents of Manila are not safe. It therefore
became necessary to remove these terminals to dissipate the threat.

xxx

The Pandacan oil depot remains a terrorist target even if the contents have been
lessened. In the absence of any convincing reason to persuade this Court that the life, security
and safety of the inhabitants of Manila are no longer put at risk by the presence of the oil depots,
we hold that Ordinance No. 8187 in relation to the Pandacan Terminals is invalid and
unconstitutional.

xxx

Neither is it necessary to discuss at length the test of police power against the assailed
ordinance. Suffice it to state that the objective adopted by the Sangguniang Panlungsod to
promote the constituents’ general welfare in terms of economic benefits cannot override the very
basic rights to life, security and safety of the people. (Social Justice Society Officers v. Lim, G.R.
No. 187836, November 25, 2014)

LGU PARTICIPATION IN NATIONAL PROJECTS

National government agencies must conduct prior public consultation and

secure the approval of local government units for national government projects
affecting the ecological balance of local communities. The lack of prior public
consultation and approval is not corrected by the subsequent endorsement.

The Local Government Code establishes the duties of national government agencies in
the maintenance of ecological balance, and requires them to secure prior public consultation
and approval of local government units for the projects described therein.

In the case before us, the national agency involved is respondent PRA. Even if the project
proponent is the local government of Aklan, it is respondent PRA which authorized the
reclamation, being the exclusive agency of the government to undertake reclamation
nationwide. xxx

This project can be classified as a national project that affects the environmental and
ecological balance of local communities, and is covered by the requirements found in the Local
Government Code provisions that are quoted below:

Section 26. Duty of National Government Agencies in the

Maintenance of Ecological Balance. - It shall be the duty of every national agency
or government-owned or controlled corporation authorizing or involved in the planning
and implementation of any project or program that may cause pollution, climatic change,
depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and
extinction of animal or plant species, to consult with the local government units,
nongovernmental organizations, and other sectors concerned and explain the goals and
objectives of the project or program, its impact upon the people and the community in
terms of environmental or ecological balance, and the measures that will be undertaken
to prevent or minimize the adverse effects thereof.

Section 27. Prior Consultations Required. - No project or program shall be

implemented by government authorities unless the consultations mentioned in Sections 2
(c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is
obtained: Provided, That occupants in areas where such projects are to be implemented
shall not be evicted unless appropriate relocation sites have been provided, in accordance
with the provisions of the Constitution.

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 In Lina, Jr. v. Pao, we held that Section 27 of the Local Government Code applies only to
national programs and/or projects which are to be implemented in a particular local community
and that it should be read in conjunction with Section 26. We held further in this manner:

Thus, the projects and programs mentioned in Section 27 should be interpreted

to mean projects and programs whose effects are among those enumerated in Section 26
and 27, to wit, those that: (1) may cause pollution; (2) may bring about climatic
change; (3) may cause the depletion of non-renewable resources; (4) may result in loss of
crop land, range-land, or forest cover; (5) may eradicate certain animal or plant species
from the face of the planet; and (6) other projects or programs that may call for the
eviction of a particular group of people residing in the locality where these will be
implemented. Obviously, none of these effects will be produced by the introduction of
lotto in the province of Laguna. (Emphasis added.)

xxx [I]t was established that this project as described above falls under Section 26
because the commercial establishments to be built on phase 1, as described in the EPRMP
quoted above, could cause pollution as it could generate garbage, sewage, and possible toxic fuel
discharge.

Our ruling in Province of Rizal v. Executive Secretary is instructive:

We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v.

Lanzanas, where we held that there was no statutory requirement for
the sangguniang bayan of Puerto Galera to approve the construction of a
mooring facility, as Sections 26 and 27 are inapplicable to projects which are not
environmentally critical.

xxx

Under the Local Government Code, therefore, two requisites

must be met before a national project that affects the environmental
and ecological balance of local communities can be implemented:
prior consultation with the affected local communities, and
prior approval of the project by the appropriate sanggunian. Absent
either of these mandatory requirements, the projects implementation
is illegal. (Emphasis added.)

Based on the above, therefore, prior consultations and prior approval are
required by law to have been conducted and secured by the respondent Province.
Accordingly, the information dissemination conducted months after the ECC had already been
issued was insufficient to comply with this requirement under the Local Government Code.

xxx

The lack of prior public consultation and approval is not corrected by the subsequent
endorsement of the reclamation project by the Sangguniang Barangay of Caticlan on
February 13, 2012, and the Sangguniang Bayan of the Municipality of Malay on February
28, 2012, which were both undoubtedly achieved at the urging and insistence of respondent
Province. As we have established above, the respective resolutions issued by the LGUs
concerned did not render this petition moot and academic. (Boracay Foundation v. Province of
Aklan, G.R. No. 196870, June 26, 2012)

CONVERSION OF LGUS

Why conversion of a component city into a Highly Urbanized City (HUC)

requires approval by a majority of the votes in a plebiscite for the entire province:

The creation, division, merger, abolition or substantial alteration of

boundaries of local government units involve a material change in the political and
economic rights of the local government units directly affected as well as the people
therein. Thus, the Constitution requires the approval of the people “in the political
units directly affected.” Similarly, conversion will lead to material change in the
political and economic rights of not only of the component city but of the entire
province.

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 Petitioner Umali asseverates that Sec. 10, Art. X of the Constitution should be the basis
for determining the qualified voters who will participate in the plebiscite to resolve the issue.
Sec. 10, Art. X reads:

Section 10, Article X. – 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.(emphasis supplied)

Petitioner Umali elucidates that the phrase “political units directly affected”
necessarily encompasses not only Cabanatuan City but the entire province of Nueva Ecija.
Hence, all the registered voters in the province are qualified to cast their votes in resolving
the proposed conversion of Cabanatuan City.
xxx

First, the Court’s pronouncement in Miranda vs. Aguirre is apropos and may be
applied by analogy. Xxx In that seminal case, the Court held that the downgrading of an
independent component city into a component city comes within the purview of Sec. 10,
Art. X of the Constitution.

In Miranda, the rationale behind the afore–quoted constitutional provision and its
application to cases of conversion were discussed thusly:

A close analysis of the said constitutional provision will reveal that the creation,
division, merger, abolition or substantial alteration of boundaries of local government units
involve a common denominator – – – material change in the political and economic rights
of the local government units directly affected as well as the people therein. It is precisely
for this reason that the Constitution requires the approval of the people “in the political
units directly affected.” xxx Section 10, Article X [of the 1987 Constitution] addressed the
undesirable practice in the past whereby local government units were created, abolished,
merged or divided on the basis of the vagaries of politics and not of the welfare of the
people. Thus, the consent of the people of the local government unit directly affected was
required to serve as a checking mechanism xxx. This plebiscite requirement is also in
accord with the philosophy of the Constitution granting more autonomy to local
government units.

xxx Similar to the enumerated acts in the constitutional provision, conversions were
found to result in material changes in the economic and political rights of the people and LGUs
affected. Given the far–reaching ramifications of converting the status of a city, we held that the
plebiscite requirement under the constitutional provision should equally apply to conversions as
well. Thus, RA 8528 was declared unconstitutional in Miranda on the ground that the law
downgraded Santiago City in Isabela without submitting it for ratification in a plebiscite, in
contravention of Sec. 10, Art. X of the Constitution. (Umali v. Commission on Elections, G.R.
No. 203974, April 22, 2014)

The conversion of a component city into an HUC is substantial alteration of

boundaries. “Boundaries” should not be limited to the mere physical one, but also to
its political boundaries. With the city’s newfound autonomy, it will be free from the
oversight powers of the province, which, in effect, reduces the territorial jurisdiction
of the latter.

Second, while conversion to an HUC is not explicitly provided in Sec. 10, Art. X of the
Constitution we nevertheless observe that the conversion of a component city into an HUC is
substantial alteration of boundaries.

As the phrase implies, “substantial alteration of boundaries” involves and necessarily

entails a change in the geographical configuration of a local government unit or units. However,
the phrase “boundaries” should not be limited to the mere physical one, referring to the metes
and bounds of the LGU, but also to its political boundaries. It also connotes a modification of
the demarcation lines between political subdivisions, where the LGU’s exercise of corporate
power ends and that of the other begins. And as a qualifier, the alteration must be “substantial”
for it to be within the ambit of the constitutional provision.
xxx
With the city’s newfound autonomy, it will be free from the oversight powers of the
province, which, in effect, reduces the territorial jurisdiction of the latter. What once formed
part of Nueva Ecija will no longer be subject to supervision by the province. In more concrete
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terms, Nueva Ecija stands to lose 282.75 sq. km. of its territorial jurisdiction with Cabanatuan
City’s severance from its mother province. This is equivalent to carving out almost 5% of Nueva
Ecija’s 5,751.3 sq. km. area. This sufficiently satisfies the requirement that the alteration be
“substantial.”
Needless to stress, the alteration of boundaries would necessarily follow Cabanatuan
City’s conversion in the same way that creations, divisions, mergers, and abolitions generally
cannot take place without entailing the alteration. xxx
In light of the foregoing disquisitions, the Court rules that conversion to an HUC is
substantial alternation of boundaries governed by Sec. 10, Art. X and resultantly, said provision
applies, governs and prevails over Sec. 453 of the LGC. (Umali v. Commission on Elections, G.R.
No. 203974, April 22, 2014)

LGUs whose boundaries are to be altered and whose economy would be

affected are entitled to participate in the plebiscite to approve the conversion.

In identifying the LGU or LGUs that should be allowed to take part in the plebiscite,
what should primarily be determined is whether or not the unit or units that desire to
participate will be “directly affected” by the change. To interpret the phrase, Tan v.
COMELEC and Padilla v. COMELEC are worth revisiting.

We have ruled in Tan, involving the division of Negros Occidental for the creation of the
new province of Negros del Norte, that the LGUs whose boundaries are to be altered and whose
economy would be affected are entitled to participate in the plebiscite. As held:

It can be plainly seen that the aforecited constitutional provision makes it

imperative that there be first obtained “the approval of a majority of votes in the plebiscite
in the unit or units affected” whenever a province is created, divided or merged and there is
substantial alteration of the boundaries. It is thus inescapable to conclude that the
boundaries of the existing province of Negros Occidental would necessarily be substantially
altered by the division of its existing boundaries in order that there can be created the
proposed new province of Negros del Norte. Plain and simple logic will demonstrate
than that two political units would be affected. The first would be the parent
province of Negros Occidental because its boundaries would be substantially
altered. The other affected entity would be composed of those in the area
subtracted from the mother province to constitute the proposed province of
Negros del Norte.

xxxx

xxx The economy of the parent province as well as that of the new
province will be inevitably affected, either for the better or for the worse.
Whatever be the case, either or both of these political groups will be affected
and they are, therefore, the unit or units referred to in Section 3 of Article XI
of the Constitution which must be included in the plebiscite contemplated
therein. (emphasis added)

xxx

Despite the change in phraseology [in Sec. 3, Art. XI of the 1973 Constitution] compared
to what is now Sec. 10, Art. X, we affirmed our ruling in Tan in the latter case of Padilla. xxx

xxx

In the more recent case of Miranda, the interpretation in Tan and Padilla was modified
to include not only changes in economic but also political rights in the criteria for determining
whether or not an LGU shall be considered “directly affected.” Nevertheless, the requirement
that the plebiscite be participated in by the plurality of political units directly affected remained.
(Umali v. Commission on Elections, G.R. No. 203974, April 22, 2014)

Economic impact of conversion: The conversion of a component city into a

highly urbanized city will adversely impact the economic rights of the province, as
this will result in reduction of the province’s Internal Revenue Allotment (IRA), and
reduction in tax collections due to reduction of taxing jurisdiction, and loss of shares
in provincial taxes imposed in the city to be converted.

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 In a similar fashion, herein petitioner Umali itemized the adverse effects of Cabanatuan
City’s conversion to the province of Nueva Ecija to justify the province’s participation in the
plebiscite to be conducted.

Often raised is that Cabanatuan City’s conversion into an HUC and its severance from
Nueva Ecija will result in the reduction of the Internal Revenue Allotment (IRA) to the province
based on Sec. 285 of the LGC.

Xxx

Xxx [T]he conversion into an HUC carries the accessory of substantial alteration of
boundaries and that the province of Nueva Ecija will, without a doubt, suffer a reduction in
territory because of the severance of Cabanatuan City. The residents of the city will cease to be
political constituencies of the province, effectively reducing the latter’s population. Taking this
decrease in territory and population in connection with the above formula, it is conceded that
Nueva Ecija will indeed suffer a reduction in IRA given the decrease of its multipliers’ values.

Clear as crystal is that the province of Nueva Ecija will suffer a substantial reduction of
its share in IRA once Cabanatuan City attains autonomy. In view of the economic impact of
Cabanatuan City’s conversion, petitioner Umali’s contention, that its effect on the province is
not only direct but also adverse, deserves merit.

Moreover, his claim that the province will lose shares in provincial taxes imposed in
Cabanatuan City is well–founded. This is based on Sec. 151 of the LGC, which states: xxxxx

Once converted, the taxes imposed by the HUC will accrue to itself. Prior to this, the
province enjoys the prerogative to impose and collect taxes such as those on sand, gravel and
other quarry resources, professional taxes, and amusement taxes over the component city. Xxx
This reduction in both taxing jurisdiction and shares poses a material and substantial change to
the province’s economic rights, warranting its participation in the plebiscite.

xxx

A component city’s conversion into an HUC and its resultant autonomy from the
province is a threat to the latter’s economic viability. Noteworthy is that the income criterion for
a component city to be converted into an HUC is higher than the income requirement for the
creation of a province. The ensuing reduction in income upon separation would clearly leave a
crippling effect on the province’s operations as there would be less funding to finance
infrastructure projects and to defray overhead costs. Moreover, the quality of services being
offered by the province may suffer because of looming austerity measures. These are but a few of
the social costs of the decline in the province’s economic performance, which Nueva Ecija is
bound to experience once its most progressive city of Cabanatuan attains independence. (Umali
v. Commission on Elections, G.R. No. 203974, April 22, 2014)

Political impact of conversion: Administrative supervision of the province over

the city will effectively be revoked upon conversion. Thus, the provincial
government will lose the power to ensure that the local government officials of
Cabanatuan City act within the scope of its prescribed powers and functions, to
review executive orders issued by the city mayor, and to approve resolutions and
ordinances enacted by the city council. The province will also be divested of
jurisdiction over disciplinary cases concerning the elected city officials of the new
HUC. Moreover, provincial government will no longer be responsible for delivering
basic services for the city residents’ benefit. Ordinances and resolutions passed by
the provincial council will no longer cover the city.

Aside from the alteration of economic rights, the political rights of Nueva Ecija and those
of its residents will also be affected by Cabanatuan’s conversion into an HUC. Notably, the
administrative supervision of the province over the city will effectively be revoked upon
conversion. Secs. 4 and 12, Art. X of the Constitution read:

Sec. 4. The President of the Philippines shall exercise general supervision over
local governments. Provinces with respect to component cities and municipalities, and
cities and municipalities with respect to component barangays shall ensure that the acts of
their component units are within the scope of their prescribed powers and functions.

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 Sec 12. Cities that are highly urbanized, as determined by law, and component
cities whose charters prohibit their voters from voting for provincial elective officials, shall
be independent of the province. The voters of component cities within a province, whose
charters contain no such prohibition, shall not be deprived of their right to vote for elective
provincial officials.

Duties, privileges and obligations appertaining to HUCs will attach to Cabanatuan City if
it is converted into an HUC. This includes the right to be outside the general supervision of the
province and be under the direct supervision of the President. xxx The provincial government
stands to lose the power to ensure that the local government officials of Cabanatuan City act
within the scope of its prescribed powers and functions, to review executive orders issued by the
city mayor, and to approve resolutions and ordinances enacted by the city council. The province
will also be divested of jurisdiction over disciplinary cases concerning the elected city officials of
the new HUC, and the appeal process for administrative case decisions
against barangay officials of the city will also be modified accordingly. Likewise, the registered
voters of the city will no longer be entitled to vote for and be voted upon as provincial officials.

In cutting the umbilical cord between Cabanatuan City and the province of Nueva Ecija,
the city will be separated from the territorial jurisdiction of the province, as earlier explained.
The provincial government will no longer be responsible for delivering basic services for the city
residents’ benefit. Ordinances and resolutions passed by the provincial council will no longer
cover the city. Projects queued by the provincial government to be executed in the city will also
be suspended if not scrapped to prevent the LGU from performing functions outside the bounds
of its territorial jurisdiction, and from expending its limited resources for ventures that do not
cater to its constituents.

In view of these changes in the economic and political rights of the province of Nueva
Ecija and its residents, the entire province certainly stands to be directly affected by the
conversion of Cabanatuan City into an HUC. Following the doctrines in Tan and Padilla, all the
qualified registered voters of Nueva Ecija should then be allowed to participate in the plebiscite
called for that purpose. (Umali v. Commission on Elections, G.R. No. 203974, April 22, 2014)

POWERS OF LOCAL EXECUTIVES

A provincial governor has no power to call out the armed forces, a power
exclusive to the President; a provincial governor has no power to order general
searches and seizures; he has no power to organize private armed groups.

iii. The provincial governor does not possess the same calling-out powers as the
President

[R]espondent provincial governor 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 x x x.

Respondents, however, justify this stance by stating that nowhere in the seminal case of
David v. Arroyo, which dealt squarely with the issue of the declaration of a state of emergency,
does it limit the said authority to the President alone. Respondents contend that the ruling in
David expressly limits the authority to declare a national emergency, a condition which covers
the entire country, and does not include emergency situations in local government units. This
claim is belied by the clear intent of the framers that in all situations involving threats to
security, such as lawless violence, invasion or rebellion, even in localized areas, it is still the
President who possesses the sole authority to exercise calling-out powers. x x x

xxx

III. Section 465 of the Local Government Code cannot be invoked to justify the powers
enumerated under Proclamation 1-09

Respondent governor characterized the kidnapping of the three ICRC workers as a

terroristic act, and used this incident to justify the exercise of the powers enumerated under
Proclamation 1-09. x x x

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 Petitioners cite the implementation of "General Search and Seizure including arrests in
the pursuit of the kidnappers and their supporters," as being violative of the constitutional
proscription on general search warrants and general seizures. Petitioners rightly assert that this
alone would be sufficient to render the proclamation void, as general searches and seizures are
proscribed, for being violative of the rights enshrined in the Bill of Rights, particularly:

The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.

In fact, respondent governor has arrogated unto himself powers exceeding even the
martial law powers of the President, because as the Constitution itself declares, "A state of
martial law does not suspend the operation of the Constitution, nor supplant the functioning of
the civil courts or legislative assemblies, nor authorize the conferment of the jurisdiction on
military courts and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.”

[T]here is nothing in the Local Government Code which justifies the acts sanctioned
under the said Proclamation. Not even Section 465 of the said Code, in relation to Section 16,
which states:

Section 465. The Chief Executive: Powers, Duties, Functions, and Compensation.

xxx xxx xxx

(b) For efficient, effective and economical governance the purpose of which is the
general welfare of the province and its inhabitants pursuant to Section 16 of this Code, the
provincial governor shall:

(1) Exercise general supervision and control over all programs, projects, services,
and activities of the provincial government, and in this connection, shall:

xxx xxx xxx

(vii) Carry out such emergency measures as may be necessary during and in the
aftermath of man-made and natural disasters and calamities;

(2) Enforce all laws and ordinances relative to the governance of the province and
the exercise of the appropriate corporate powers provided for under Section 22 of this
Code, implement all approved policies, programs, projects, services and activities of the
province and, in addition to the foregoing, shall:

xxx xxx xxx

(vi) Call upon the appropriate national law enforcement agencies to suppress
disorder, riot, lawless violence, rebellion or sedition or to apprehend violators of the law
when public interest so requires and the police forces of the component city or municipality
where the disorder or violation is happening are inadequate to cope with the situation or
the violators.

Section 16. General Welfare. - Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the development of appropriate and
self-reliant scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and convenience of their inhabitants.
(Emphases supplied)

Respondents cannot rely on paragraph 1, subparagraph (vii) of Article 465 above, as the
said provision expressly refers to calamities and disasters, whether man-made or natural. The
governor, as local chief executive of the province, is certainly empowered to enact and
implement emergency measures during these occurrences. But the kidnapping incident in the
case at bar cannot be considered as a calamity or a disaster. Respondents cannot find any legal
mooring under this provision to justify their actions.

106 | P a g e
 Paragraph 2, subparagraph (vi) of the same provision is equally inapplicable for two
reasons. First, the Armed Forces of the Philippines does not fall under the category of a
"national law enforcement agency," to which the National Police Commission (NAPOLCOM)
and its departments belong.

Its mandate is to uphold the sovereignty of the Philippines, support the Constitution,
and defend the Republic against all enemies, foreign and domestic. Its aim is also to secure the
integrity of the national territory.

Second, there was no evidence or even an allegation on record that the local police forces
were inadequate to cope with the situation or apprehend the violators. If they were inadequate,
the recourse of the provincial governor was to ask the assistance of the Secretary of Interior and
Local Government, or such other authorized officials, for the assistance of national law
enforcement agencies.

The Local Government Code does not involve the diminution of central powers
inherently vested in the National Government, especially not the prerogatives solely granted by
the Constitution to the President in matters of security and defense.

The intent behind the powers granted to local government units is fiscal, economic, and
administrative in nature. The Code is concerned only with powers that would make the delivery
of basic services more effective to the constituents, and should not be unduly stretched to confer
calling-out powers on local executives.

xxx

IV. Provincial governor is not authorized to convene CEF

Pursuant to the national policy to establish one police force, the organization of private
citizen armies is proscribed. Section 24 of Article XVIII of the Constitution mandates that:

Private armies and other armed groups not recognized by duly constituted
authority shall be dismantled. All paramilitary forces including Civilian Home Defense
Forces (CHDF) not consistent with the citizen armed force established in this Constitution,
shall be dissolved or, where appropriate, converted into the regular force.

Additionally, Section 21 of Article XI states that, "The preservation of peace and order
within the regions shall be the responsibility of the local police agencies which shall be
organized, maintained, supervised, and utilized in accordance with applicable laws. The defense
and security of the regions shall be the responsibility of the National Government."

Taken in conjunction with each other, it becomes clear that the Constitution does not
authorize the organization of private armed groups similar to the CEF convened by the
respondent Governor. The framers of the Constitution were themselves wary of armed citizens’
groups, x x x.

xxx

Thus, with the discussions in the Constitutional Commission as guide, the creation of the
Civilian Emergency Force (CEF) in the present case, is also invalid. (Kulayan v. Tan, G.R. No.
187298, July 03, 2012)

A mayor has the power to order the demolition of illegal constructions after
complying with due process.

Generally, LGUs have no power to declare a particular thing as a nuisance unless such a
thing is a nuisance per se. So it was held in AC Enterprises v. Frabelle Properties Corp:

We agree with petitioner’s contention that, under Section 447(a)(3)(i) of R.A. No.
7160, otherwise known as the Local Government Code, the Sangguniang Panglungsod is
empowered to enact ordinances declaring, preventing or abating noise and other forms of
nuisance. It bears stressing, however, that the Sangguniang Bayan cannot declare a
particular thing as a nuisance per se and order its condemnation. It does not have the
power to find, as a fact, that a particular thing is a nuisance when such thing is
not a nuisance per se; nor can it authorize the extrajudicial condemnation and
destruction of that as a nuisance which in its nature, situation or use is not
such. Those things must be determined and resolved in the ordinary courts of

107 | P a g e
 law. If a thing, be in fact, a nuisance due to the manner of its operation, that question
cannot be determined by a mere resolution of the Sangguniang Bayan. (emphasis supplied)

Despite the hotel’s classification as a nuisance per accidens, however, We still find in this
case that the LGU may nevertheless properly order the hotel’s demolition. This is because, in the
exercise of police power and the general welfare clause, property rights of individuals may be
subjected to restraints and burdens in order to fulfill the objectives of the government.
Otherwise stated, the government may enact legislation that may interfere with personal liberty,
property, lawful businesses and occupations to promote the general welfare.

One such piece of legislation is the LGC, which authorizes city and municipal
governments, acting through their local chief executives, to issue demolition orders. Under
existing laws, the office of the mayor is given powers not only relative to its function as the
executive official of the town; it has also been endowed with authority to hear issues involving
property rights of individuals and to come out with an effective order or resolution
thereon. Pertinent herein is Sec. 444 (b)(3)(vi) of the LGC, which empowered the mayor to order
the closure and removal of illegally constructed establishments for failing to secure the
necessary permits, to wit:c

xxx
In the case at bar, petitioner admittedly failed to secure the necessary permits,
clearances, and exemptions before the construction, expansion, and operation of Boracay Wet
Cove’s hotel in Malay, Aklan. xxx

xxx

He consciously chose to violate not only the Ordinance but also Sec. 301 of PD 1096,
laying down the requirement of building permits, which provides: xxxc

This twin violation of law and ordinance warranted the LGU’s invocation of Sec. 444
(b)(3)(vi) of the LGC, which power is separate and distinct from the power to summarily abate
nuisances per se. Under the law, insofar as illegal constructions are concerned, the mayor can,
after satisfying the requirement of due notice and hearing, order their closure and demolition.
(Aquino v. Municipality of Malay, Aklan, G.R. No. 211356, September 29, 2014)

INTERNATIONAL LAW

GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW

Generally accepted principles of international law as part of the law of the

land include a) international custom as evidence of a general practice accepted as
law, and b) general principles of law recognized by civilized nations.

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 obligations. Generally accepted principles of
international law include international custom 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 principle 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)

108 | P a g e
Concerning Discrimination in Respect of Employment and Occupation." These are the same
core principles which underlie the Philippine Constitution itself, as embodied in the due process
and equal protection clauses of the Bill of Rights. (Poe-Llamanzares v. Comelec, G.R. No.
221697, March 8, 2016)

The Philippine State can be bound by a principle embodied in a treaty even if

it is not a signatory or party to such treaty, if such principle is binding as a generally
accepted principle of international law.

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961
Convention on the Reduction of Statelessness does not mean that their principles are not
binding. While the Philippines is not a party to the 1930 Hague Convention, it is a signatory to
the Universal Declaration on Human Rights, Article 15(1) of which effectively affirms Article 14
of the 1930 Hague Convention. Article 2 of the 1961 "United Nations Convention on the
Reduction of Statelessness" merely "gives effect" to Article 15(1) of the UDHR. In Razon v.
Tagitis, this Court noted that the Philippines had not signed or ratified the "International
Convention for the Protection of All Persons from Enforced Disappearance." Yet, we ruled that
the proscription against enforced disappearances in the said convention was nonetheless
binding as a "generally accepted principle of international law." Razon v. Tagitis is likewise
notable for declaring the ban as a generally accepted principle of international law although the
convention had been ratified by only sixteen states and had not even come into force and which
needed the ratification of a minimum of twenty states. xxx

Our approach in Razon and Mijares effectively takes into account the fact that "generally
accepted principles of international law" are based not only on international custom, but also on
"general principles of law recognized by civilized nations," as the phrase is understood in Article
38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the policy against
discrimination, which are fundamental principles underlying the Bill of Rights and which are
"basic to legal systems generally,"support the notion that the right against enforced
disappearances and the recognition of foreign judgments, were correctly considered as
"generally accepted principles of international law" under the incorporation clause. (Poe-
Llamanzares v. Comelec, G.R. No. 221697, March 8, 2016)

EXECUTIVE AGREEMENTS

An exchange of notes is an internationally accepted form of international

agreement. It is a form of executive agreement that is binding through executive
action.

An exchange of notes falls into the category of inter-governmental agreements, which is

an internationally accepted form of international agreement. The United Nations Treaty
Collections (Treaty Reference Guide) defines the term as follows:

An exchange of notes is a record of a routine agreement,that has many

similarities with the private law contract. The agreement consists of the exchange of two
documents, each of the parties being in the possession of the one signed by the
representative of the other. Under the usual procedure, the accepting State repeats the
text of the offering State to record its assent. The signatories of the letters may be
government Ministers, diplomats or departmental heads. The technique of exchange of
notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to
avoid the process of legislative approval.

In another perspective, the terms exchange of notes and executive agreements have been
used interchangeably, exchange of notes being considered a form of executive agreement that
becomes binding through executive action. On the other hand, executive agreements concluded
by the President sometimes take the form of exchange of notes and at other times that of more
formal documents denominated agreements or protocols. (Bayan Muna v. Romulo, G.R. No.
159618, February 1, 2011)

International agreements may be in the form of (1) treaties that require

legislative concurrence after executive ratification; or (2) executive agreements
that are similar to treaties, except that they do not require legislative concurrence.
There is no difference between treaties and executive agreements in terms of their
binding effects on the contracting states concerned.

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 Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as an
international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation. International agreements may be in the
form of (1) treaties that require legislative concurrence after executive ratification; or (2)
executive agreements that are similar to treaties, except that they do not require legislative
concurrence and are usually less formal and deal with a narrower range of subject matters than
treaties.

Under international law, there is no difference between treaties and executive

agreements in terms of their binding effects on the contracting states concerned, as long as the
negotiating functionaries have remained within their powers. Neither, on the domestic sphere,
can one be held valid if it violates the Constitution. Authorities are, however, agreed that one is
distinct from another for accepted reasons apart from the concurrence-requirement aspect. As
has been observed by US constitutional scholars, a treaty has greater dignity than an executive
agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the
authority of the President, the Senate, and the people; a ratified treaty, unlike an executive
agreement, takes precedence over any prior statutory enactment. (Bayan Muna v. Romulo, G.R.
No. 159618, February 1, 2011)

A treaty and an executive agreement are both binding on the parties under
the pacta sunt servanda principle. There are no hard and fast rules on what subject
should be covered by a treaty or an executive agreement. Save for the situation and
matters contemplated in Sec. 25, Art. XVIII of the Constitution when a treaty is
required, the Constitution does not classify any subject, like that involving political
issues, to be in the form of, and ratified as, a treaty. What the Constitution merely
prescribes is that treaties need the concurrence of the Senate by a vote defined
therein to complete the ratification process. Thus, an exchange of notes is valid and
effective even without the concurrence by at least two-thirds of all the members of
the Senate.

Petitioner parlays the notion that the Agreement [US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement
between the USA and the RP] is of dubious validity, partaking as it does of the nature of a treaty;
hence, it must be duly concurred in by the Senate. Petitioner takes a cue from Commissioner of
Customs v. Eastern Sea Trading, in which the Court reproduced the following observations made by
US legal scholars: [I]nternational agreements involving political issues or changes of national policy
and those involving international arrangements of a permanent character usually take the form of
treaties [while] those embodying adjustments of detail carrying out well established national
policies and traditions and those involving arrangements of a more or less temporary nature take
the form of executive agreements.

Pressing its point, petitioner submits that the subject of the Agreement does not fall under
any of the subject-categories that are enumerated in the Eastern Sea Trading case, and that may be
covered by an executive agreement, such as commercial/consular relations, most-favored nation
rights, patent rights, trademark and copyright protection, postal and navigation arrangements and
settlement of claims.

In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales
and Merchant, holding that an executive agreement through an exchange of notes cannot be used to
amend a treaty.

We are not persuaded.

The categorization of subject matters that may be covered by international agreements

mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the
propriety of entering, on a given subject, into a treaty or an executive agreement as an instrument
of international relations. The primary consideration in the choice of the form of agreement is the
parties intent and desire to craft an international agreement in the form they so wish to further
their respective interests. Verily, the matter of form takes a back seat when it comes to
effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the
parties in either international agreement each labor under the pacta sunt servanda principle.

110 | P a g e
 x x x Surely, the enumeration in Eastern Sea Trading cannot circumscribe the option of each
state on the matter of which the international agreement format would be convenient to serve its
best interest. As Francis Sayre said in his work referred to earlier:

x x x It would be useless to undertake to discuss here the large variety of executive

agreements as such concluded from time to time. Hundreds of executive agreements, other
than those entered into under the trade-agreement act, have been negotiated with foreign
governments. x x x They cover such subjects as the inspection of vessels, navigation dues,
income tax on shipping profits, the admission of civil air craft, custom matters and
commercial relations generally, international claims, postal matters, the registration of
trademarks and copyrights, etc. x x x

And lest it be overlooked, one type of executive agreement is a treaty-authorized or a

treaty-implementing executive agreement, which necessarily would cover the same matters subject
of the underlying treaty.

But over and above the foregoing considerations is the fact that save for the situation and
matters contemplated in Sec. 25, Art. XVIII of the Constitution when a treaty is required, the
Constitution does not classify any subject, like that involving political issues, to be in the form of,
and ratified as, a treaty. What the Constitution merely prescribes is that treaties need the
concurrence of the Senate by a vote defined therein to complete the ratification process.

xxx

Considering the above discussion, the Court need not belabor at length the third main issue
raised, referring to the validity and effectivity of the Agreement without the concurrence by at least
two-thirds of all the members of the Senate. The Court has, in Eastern Sea Trading, as reiterated
in Bayan, given recognition to the obligatory effect of executive agreements without the
concurrence of the Senate:

x x x [T]he right of the Executive to enter into binding agreements without the
necessity of subsequent Congressional approval has been confirmed by long usage. From the
earliest days of our history, we have entered executive agreements covering such subjects as
commercial and consular relations, most favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the settlement of claims. The
validity of these has never been seriously questioned by our courts.

(Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011)

An executive agreement that does not require the concurrence of the Senate
for its ratification may not be used to amend a treaty that, under the Constitution, is
the product of the ratifying acts of the Executive and the Senate.

Petitioners reliance on Adolfo is misplaced, said case being inapplicable owing to

different factual milieus. There, the Court held that an executive agreement cannot be used to
amend a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement
that does not require the concurrence of the Senate for its ratification may not be used to amend
a treaty that, under the Constitution, is the product of the ratifying acts of the Executive and the
Senate. The presence of a treaty, purportedly being subject to amendment by an executive
agreement, does not obtain under the premises. (Bayan Muna v. Romulo, G.R. No. 159618,
February 1, 2011)

A loan agreement -- between the Government of the Philippines and IBRD, an

international lending institution recognized as a subject of international law – is an
executive agreement. The Government of the Philippines is therefore obligated to
observe its terms and conditions under the rule of pacta sunt servanda.

As the parties have correctly discerned, Loan Agreement No. 4833-PH is in the nature
of an executive agreement. In Bayan Muna v. Romulo (Bayan Muna) the Court defined an
international agreement as one concluded between states in written form and governed by
international law, "whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation," and further expounded that it may be in
the form of either (a) treaties that require legislative concurrence after executive ratification; or
( b) executive agreements that are similar to treaties, except that they do not require legislative
concurrence and are usually less formal and deal with a narrower range of subject matters than
treaties. Examining its features, Loan Agreement No. 4833-PH between the IBRD and the Land
111 | P a g e
Bank is an integral component of the Guarantee Agreement executed by the Government of the
Philippines as a subject of international law possessed of a treaty-making capacity, and the
IBRD, which, as an international lending institution organized by world governments to
provide loans conditioned upon the guarantee of repayment by the borrowing sovereign state,
is likewise regarded a subject of international law and possessed of the capacity to enter into
executive agreements with sovereign states. Being similar to a treaty but without requiring
legislative concurrence, Loan Agreement No. 4833-PH - following the definition given in the
Bayan Muna case - is an executive agreement and is, thus, governed by international law.
Owing to this classification, the Government of the Philippines is therefore obligated to observe
its terms and conditions under the rule of pacta sunt servanda, a fundamental maxim of
international law that requires the parties to keep their agreement in good faith. It bears
pointing out that the pacta sunt servanda rule has become part of the law of the land through
the incorporation clause found under Section 2, Article II of the 1987 Philippine Constitution,
which states that the Philippines "adopts the generally accepted principles of international law
as part of the law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations."

xxx

Considering that Loan Agreement No. 4833-PH expressly provides that the
procurement of the goods to be financed from the loan proceeds shall be in accordance with the
IBRD Guidelines and the provisions of Schedule 4, and that the accessory SLA contract merely
follows its principal 's terms and conditions, the procedure for competitive public bidding
prescribed under RA 9184 therefore finds no application to the procurement of goods for the
Iligan City Water Supply System Development and Expansion Project. The validity of similar
stipulations in foreign loan agreements requiring the observance of IBRD Procurement
Guidelines in the procurement process has, in fact, been previously upheld by the Court xxx.
(Land Bank of the Philippines v. Atlanta Industries, G.R. No. 193796, July 2, 2014)

IMMUNITY OF A FOREIGN STATE FROM SUIT

A complaint based on an act of a foreign government done by its foreign

agent is barred by the immunity of the foreign sovereign from suits without its
consent. Thus, Philippine courts cannot have jurisdiction over US Navy officers for
acts committed in their official capacity.

The precept that a State cannot be sued in the courts of a foreign state is a long-standing
rule of customary international law then closely identified with the personal immunity of a
foreign sovereign from suit and, with the emergence of democratic states, made to attach not
just to the person of the head of state, or his representative, but also distinctly to the state itself
in its sovereign capacity. If the acts giving rise to a suit are those of a foreign government done
by its foreign agent, although not necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of the foreign sovereign from suit
without its consent. Suing a representative of a state is believed to be, in effect, suing the state
itself. The proscription is not accorded for the benefit of an individual but for the State, in whose
service he is, under the maxim -par in parem, non habet imperium -that all states are sovereign
equals and cannot assert jurisdiction over one another. The implication, in broad terms, is that
if the judgment against an official would require the state itself to perform an affirmative act to
satisfy the award, such as the appropriation of the amount needed to pay the damages decreed
against him, the suit must be regarded as being against the state itself, although it has not been
formally impleaded.

This traditional rule of State immunity which exempts a State from being sued in the
courts of another State without the former's consent or waiver has evolved into a restrictive
doctrine which distinguishes sovereign and governmental acts (Jure imperil") from private,
commercial and proprietary acts (Jure gestionis). Under the restrictive rule of State immunity,
State immunity extends only to acts Jure imperii.

The doctrine of immunity from suit will not apply and may not be invoked where the
public official is being sued in his private and personal capacity as an ordinary citizen. In this
case, the US respondents were sued in their official capacity as commanding officers of the US
Navy who had control and supervision over the USS Guardian and its crew. The alleged act or
omission resulting in the unfortunate grounding of the USS Guardian on the TRNP was
committed while they were performing official military duties. Considering that the satisfaction
of a judgment against said officials will require remedial actions and appropriation of funds by
112 | P a g e
the US government, the suit is deemed to be one against the US itself. The principle of State
immunity therefore bars the exercise of jurisdiction by this Court over the persons of
respondents Swift, Rice and Robling. (Arigo v. Swift, G.R. No. 206510, September 16, 2014)

IMMUNITY OF WARSHIPS FROM THE JURISDICTION OF COASTAL STATES:

EXCEPTION UNDER UNCLOS

Under UNCLOS, the flag State shall bear international responsibility for any
loss or damage to the coastal State resulting from the non-compliance by a warship
or other government ship operated for non-commercial purposes with the laws and
regulations of the coastal State concerning passage.

While historically, warships enjoy sovereign immunity from suit as extensions of their
flag State, Art. 31 of the UNCLOS creates an exception to this rule in cases where they fail to
comply with the rules and regulations of the coastal State regarding passage through the latter's
internal waters and the territorial sea.

Although the US to date has not ratified the UNCLOS, as a matter of long-standing policy
the US considers itself bound by customary international rules on the "traditional uses of the
oceans" as codified in UNCLOS.

Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises
sovereignty, subject to the UNCLOS and other rules of international law. Such sovereignty
extends to the air space over the territorial sea as well as to its bed and subsoil.

In the case of warships, they continue to enjoy sovereign immunity subject to the
following exceptions:

Article 30
Non-compliance by warships with the laws and regulations of the coastal State

If any warship does not comply with the laws and regulations of the coastal State
concerning passage through the territorial sea and disregards any request for compliance
therewith which is made to it, the coastal State may require it to leave the territorial sea
immediately.

Article 31
Responsibility of the flag State for damage caused by a warship or other government ship
operated for non-commercial purposes

The flag State shall bear international responsibility for any loss or damage to the coastal
State resulting from the non-compliance by a warship or other government ship operated for non-
commercial purposes with the laws and regulations of the coastal State concerning passage
through the territorial sea or with the provisions of this Convention or other rules of international
law.

Article 32
Immunities of warships and other government ships operated for non-commercial
purposes

The flag States will be liable for damages caused by their warships while
navigating the Coastal State's territorial sea.

In fine, the relevance of UNCLOS provisions to the present controversy is beyond

dispute. Although the said treaty upholds the immunity of warships from the jurisdiction of
Coastal States while navigating the latter's territorial sea, the flag States shall be required to
leave the territorial sea immediately if they flout the laws and regulations of the Coastal State,
and they will be liable for damages caused by their warships or any other government vessel
operated for non-commercial purposes under Article 31. (Arigo v. Swift, G.R. No. 206510,
September 16, 2014)

DIPLOMATIC PROTECTION

How individuals may bring a claim within the international legal system:
Persuade his government to bring a claim on his behalf; here, it is not the
individual’s rights that are being asserted, but rather, the state’s own rights

113 | P a g e
 Petitioners argue that the general waiver of claims made by the Philippine government in
the Treaty of Peace with Japan is void. They claim that the comfort women system established
by Japan, and the brutal rape and enslavement of petitioners constituted a crime against
humanity, sexual slavery, and torture. They allege that the prohibition against these
international crimes is jus cogens norms from which no derogation is possible; as such, in
waiving the claims of Filipina comfort women and failing to espouse their complaints against
Japan, the Philippine government is in breach of its legal obligation not to afford impunity for
crimes against humanity. Finally, petitioners assert that the Philippine government’s acceptance
of the "apologies" made by Japan as well as funds from the Asian Women’s Fund (AWF) were
contrary to international law.

xxx

In the international sphere, traditionally, the only means available for individuals to
bring a claim within the international legal system has been when the individual is able to
persuade a government to bring a claim on the individual’s behalf. Even then, it is not the
individual’s rights that are being asserted, but rather, the state’s own rights. Nowhere is this
position more clearly reflected than in the dictum of the Permanent Court of International
Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case:

By taking up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own right to
ensure, in the person of its subjects, respect for the rules of international law. The question,
therefore, whether the present dispute originates in an injury to a private interest, which in
point of fact is the case in many international disputes, is irrelevant from this standpoint. Once a
State has taken up a case on behalf of one of its subjects before an international tribunal, in the
eyes of the latter the State is sole claimant. (Vinuya v. Executive Secretary, G.R. No. 162230,
April 28, 2010)

The exercise of diplomatic protection is within the absolute discretion of the

State.

Since the exercise of diplomatic protection is the right of the State, reliance on the right
is within the absolute discretion of states, and the decision whether to exercise the discretion
may invariably be influenced by political considerations other than the legal merits of the
particular claim. As clearly stated by the ICJ in Barcelona Traction:

The Court would here observe that, within the limits prescribed by international law, a
State may exercise diplomatic protection by whatever means and to whatever extent it thinks fit,
for it is its own right that the State is asserting. Should the natural or legal person on whose
behalf it is acting consider that their rights are not adequately protected, they have no remedy in
international law. All they can do is resort to national law, if means are available, with a view to
furthering their cause or obtaining redress. The municipal legislator may lay upon the State an
obligation to protect its citizens abroad, and may also confer upon the national a right to
demand the performance of that obligation, and clothe the right with corresponding sanctions.
However, all these questions remain within the province of municipal law and do not affect the
position internationally.

The State, therefore, is the sole judge to decide whether its protection will be granted, to
what extent it is granted, and when will it cease. It retains, in this respect, a discretionary power
the exercise of which may be determined by considerations of a political or other nature,
unrelated to the particular case.

The International Law Commission’s (ILC’s) Draft Articles on Diplomatic Protection

fully support this traditional view. They (i) state that "the right of diplomatic protection belongs
to or vests in the State,"59 (ii) affirm its discretionary nature by clarifying that diplomatic
protection is a "sovereign prerogative" of the State;60 and (iii) stress that the state "has the right
to exercise diplomatic protection on behalf of a national. It is under no duty or obligation to do
so. (Vinuya v. Executive Secretary, G.R. No. 162230, April 28, 2010)

There is no general international obligation for States to exercise diplomatic

protection of their own nationals abroad.

It has been argued, as petitioners argue now, that the State has a duty to protect its
nationals and act on his/her behalf when rights are injured. However, at present, there is no
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sufficient evidence to establish a general international obligation for States to exercise
diplomatic protection of their own nationals abroad. Though, perhaps desirable, neither state
practice nor opinio juris has evolved in such a direction. If it is a duty internationally, it is only a
moral and not a legal duty, and there is no means of enforcing its fulfillment. (Vinuya v.
Executive Secretary, G.R. No. 162230, April 28, 2010)

The Philippines does not have a non-derogable obligation to prosecute

international crimes

We fully agree that rape, sexual slavery, torture, and sexual violence are morally
reprehensible as well as legally prohibited under contemporary international law. However,
petitioners take quite a theoretical leap in claiming that these proscriptions automatically imply
that that the Philippines is under a non-derogable obligation to prosecute international crimes,
particularly since petitioners do not demand the imputation of individual criminal liability, but
seek to recover monetary reparations from the state of Japan. Absent the consent of states, an
applicable treaty regime, or a directive by the Security Council, there is no non-derogable duty to
institute proceedings against Japan. Indeed, precisely because of states’ reluctance to directly
prosecute claims against another state, recent developments support the modern trend to
empower individuals to directly participate in suits against perpetrators of international crimes.
Nonetheless, notwithstanding an array of General Assembly resolutions calling for the
prosecution of crimes against humanity and the strong policy arguments warranting such a rule,
the practice of states does not yet support the present existence of an obligation to prosecute
international crimes. Of course a customary duty of prosecution is ideal, but we cannot find
enough evidence to reasonably assert its existence. To the extent that any state practice in this
area is widespread, it is in the practice of granting amnesties, immunity, selective prosecution,
or de facto impunity to those who commit crimes against humanity." (Vinuya v. Executive
Secretary, G.R. No. 162230, April 28, 2010)

There is no showing that the crimes committed by the Japanese Army

violated jus cogens prohibitions; there in no recognized erga omnes obligation
mandating that a State prosecute perpetrators of international crimes

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.

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 an essential distinction should be drawn between the obligations of a State towards

the international community as a whole, and those arising vis-à-vis another State in the field of
diplomatic protection. By their very nature, the former are the concern of all States. In view of
the importance of the rights involved, all States can be held to have a legal interest in their
protection; they are obligations erga omnes.

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

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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.

x x x 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." x x x 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.

Of course, we greatly sympathize with the cause of petitioners, and we cannot begin to
comprehend the unimaginable horror they underwent at the hands of the Japanese soldiers. We
are also deeply concerned that, in apparent contravention of fundamental principles of law, the
petitioners appear to be without a remedy to challenge those that have offended them before
appropriate fora. Needless to say, our government should take the lead in protecting its citizens
against violation of their fundamental human rights. Regrettably, it is not within our power [the
Court] to order the Executive Department to take up the petitioners’ cause. Ours is only the
power to urge and exhort the Executive Department to take up petitioners’ cause. (Vinuya v.
Executive Secretary, G.R. No. 162230, April 28, 2010)

Extradition is the surrender by one nation to another of an individual accused

or convicted of an offense outside of its own territory, and within the territorial
jurisdiction of the other, which, being competent to try and to punish him, demands
the surrender. The right of a state to successfully request the extradition of a
criminal offender arises from a treaty with the requested state.

Extradition is "the surrender by one nation to another of an individual accused or

convicted of an offense outside of its own territory, and within the territorial jurisdiction of the
other, which, being competent to try and to punish him, demands the surrender." It is not- part
of customary international law, although the duty to extradite exists only for some international
crimes. Thus, a state must extradite only when obliged by treaty to do so. The right of a state to
successfully request the extradition of a criminal offender arises from a treaty with the requested
state. Absent the treaty, the duty to surrender a person who has sought asylum within its
boundaries does not inhere in the state, which, if it so wishes, can extend to him a refuge and
protection even from the state that he has fled. Indeed, in granting him asylum, the state
commits no breach of international law. But by concluding the treaty, the asylum state imposes
limitations on itself, because it thereby agrees to do something it was free not to do. The
extradition treaty creates the reciprocal obligation to surrender persons from the requested
state's jurisdiction charged or convicted of certain crimes committed within the requesting
state's territory, and is of the same level as a law passed by the Legislatures of the respective
parties.

Presidential Decree No. 1069 defines the general procedure for the extradition of persons
who have committed crimes in a foreign country, and lays down the rules to guide the Executive
Department and the courts of the Philippines on the proper implementation of the extradition
treaties to which the country is a signatory. Nevertheless, the particular treaties entered into by
the Philippine Government with other countries primarily govern the relationship between the
parties.

The RP-HK Agreement is still in full force and effect as an extradition treaty. The
procedures therein delineated regulate the rights and obligations of the Republic of the
Philippines and the HKSAR under the treaty in the handling of extradition requests.
(Government of Hong Kong Special Administrative Region v. Munoz, G.R. No. 207342, August
16, 2016)

Under the double criminality rule, the extraditable offense must be criminal
under the laws of both the requesting and the requested states". This simply means
that the requested state comes under no obligation to surrender the person if its
laws do not regard the conduct covered by the request for extradition as criminal.

For purposes of the extradition of Munoz, the HKSAR as the requesting state must
establish the following six elements, namely: (1) there must be an extradition treaty in force
between the HKSAR and the Philippines; (2) the criminal charges that are pending in the
HKSAR against the person to be extradited; (3) the crimes for which the person to be extradited
is charged are extraditable within the terms of the treaty; (4) the individual before the court is
the same person charged in the HKSAR; (5) the evidence submitted establishes probable cause
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to believe that the person to be extradited committed the offenses charged; and (6) the offenses
are criminal in both the HKSAR and the Philippines (double criminality rule).

The first five of the elements inarguably obtain herein, as both the RTC and the CA
found. xxx

However, it was as to the sixth element that the CA took exception as not having been
established. Although the crime of conspiracy to defraud was included among the offenses
covered by the RP-Hong Kong Agreement, and the RTC and the CA have agreed that the crime
was analogous to the felony of estafa through false pretense as defined and penalized under
Article 315(2) of the Revised Penal Code, it was disputed whether or not the other crime of
accepting an advantage as an agent was also punished as a crime in the Philippines. As such, the
applicability of the double criminality rule became the issue.

Under the double criminality rule, the extraditable offense must be criminal under the
laws of both the requesting and the requested states". This simply means that the requested
state comes under no obligation to surrender the person if its laws do not regard the conduct
covered by the request for extradition as criminal.

The HKS AR defines the crime of accepting an advantage as an agent under Section
9(1)(a) of the Prevention of Bribery Ordinance (POBO), Cap. 201,39 to wit:
xxxx
A perusal of the decision of the RTC and the original decision of the CA show that said
courts determined that the crime of accepting an advantage as an agent was analogous to the
crime of corrupt practices of public officers as defined under Section 340 of Republic Act No.
3019 (Anti-Graft and Corrupt Practices Act). In its assailed amended decision, however, the CA
reversed itself, and agreed with Muñoz to the effect that Section 9(1)(a) of the POBO referred
only to private individuals, not to persons belonging to the public sector. Xxx

xxx

Based on the foregoing, the CA ultimately concluded that the crime of accepting an
advantage as an agent did not have an equivalent in this jurisdiction considering that when the
unauthorized giving and receiving of benefits happened in the private sector, the same was not a
crime because there was no law that defined and' punished such act as criminal in this
jurisdiction.
xxx
A careful reading shows that the foreign law subject-matter of this controversy deals with
bribery in both public and private sectors. However, it is also quite evident that the particular
provision of the POBO allegedly violated by Muñoz, i.e., Section 9(1 )(a), deals with private
sector bribery xxx.

xxx
Considering that the transactions were entered into by and in behalf of the Central Bank
of the Philippines, an instrumentality of the Philippine Government, Munoz should be charged
for the offenses not as a regular agent or one representing a private entity but as a public servant
or employee of the Philippine Government. Yet, because the offense of accepting an advantage
as an agent charged against him in the HKSAR is one that deals with private sector bribery, the
conditions for the application of the double criminality rule are obviously not met. Accordingly,
the crime of accepting an advantage as an agent must be dropped from the request for
extradition. Conformably with the principle of specialty embodied in Article 17 of the RP-HK
Agreement, Muñoz should be proceeded against only for the seven counts of conspiracy to
defraud. As such, the HKSAR shall hereafter arrange for Muñoz's surrender within the period
provided under Article 15 of the RP-HK Agreement. (Government of Hong Kong Special
Administrative Region v. Munoz, G.R. No. 207342, August 16, 2016)

Under the rule of specialty in international law, a Requested State shall

surrender to a Requesting State a person to be tried only for a criminal offense
specified in their treaty of extradition.

Under the rule of specialty in international law, a Requested State shall surrender to a
Requesting State a person to be tried only for a criminal offense specified in their treaty of
extradition. Conformably with the dual criminality rule embodied in the extradition treaty
between the Philippines and the Hong Kong Special Administrative Region (HKSAR), however,
the Philippines as the Requested State is not bound to extradite the respondent to the
jurisdiction of the HKSAR as the Requesting State for the offense of accepting an advantage as

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an agent considering that the extradition treaty is forthright in providing that surrender shall
only be granted for an offense coming within the descriptions of offenses in its Article 2 insofar
as the offenses are punishable by imprisonment or other form of detention for more than one
year, or by a more severe penalty according to the laws of both parties. (Government of Hong
Kong Special Administrative Region v. Munoz, G.R. No. 207342, November 07, 2017)

UNCLOS AND ACQUISITION OF 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;
States acquire (or conversely, lose) territory through occupation, accretion, cession
and prescription, not by executing multilateral treaties on the regulations of sea-use
rights or enacting statutes to comply with the treaty’s terms to delimit maritime
zones and continental shelves

Petitioners submit that RA 9522 "dismembers a large portion of the national territory"
because it discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of
Paris and related treaties, successively encoded in the definition of national territory under the
1935, 1973 and 1987 Constitutions. Petitioners theorize that this constitutional definition
trumps any treaty or statutory provision denying the Philippines sovereign control over waters,
beyond the territorial sea recognized at the time of the Treaty of Paris, that Spain supposedly
ceded to the United States. Petitioners argue that from the Treaty of Paris’ technical description,
Philippine sovereignty over territorial waters extends hundreds of nautical miles around the
Philippine archipelago, embracing the rectangular area delineated in the Treaty of Paris.

Petitioners’ theory fails to persuade us.

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 mark-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. Article 48 of UNCLOS III on archipelagic States like ours
could not be any clearer:

Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf. – The breadth of the territorial sea, the contiguous
zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic
baselines drawn in accordance with article 47.

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 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).

Even under petitioners’ theory that the Philippine territory embraces the islands and all
the waters within the rectangular area delimited in the Treaty of Paris, the baselines of the
Philippines would still have to be drawn in accordance with RA 9522 because this is the only
way to draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn from
the boundaries or other portions of the rectangular area delineated in the Treaty of Paris, but
from the "outermost islands and drying reefs of the archipelago."

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement
or, as petitioners claim, diminution of territory. Under traditional international law typology,

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States acquire (or conversely, lose) territory through occupation, accretion, cession and
prescription, not by executing multilateral treaties on the regulations 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 III, and are instead governed by
the rules on general international law. (Magallona v. Ermita, G.R No. 187167, August 16, 2011)

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