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Duterte’s health

SEPTEMBER 3, 2018

Rappler reports on the insistent rumors regarding Duterte’s health and its constitutional
implications.

LEGAL IMPLICATIONS:

CONSTITUTION, Article VII, Sec. 12.Whenever the President transmits to the President
of the Senate and the Speaker of the House of Representatives his written declaration that he
is unable to discharge the powers and duties of his office, and until he transmits to them a
written declaration to the contrary, such powers and duties shall be discharged by the Vice-
President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the
Senate and to the Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office, the Vice-President shall
immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker of
the House of Representatives his written declaration that no inability exists, he shall reassume
the powers and duties of his office. Meanwhile, should a majority of all the Members of the
Cabinet transmit within five days to the President of the Senate and to the Speaker of the
House of Representatives their written declaration that the President is unable to discharge
the powers and duties of his office, the Congress shall decide the issue. For that purpose, the
Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its
rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in
session, within twelve days after it is required to assemble, determines by a two-thirds vote of
both Houses, voting separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as the President; otherwise, the President
shall continue exercising the powers and duties of his office.

Dissecting the provision:

First paragraph: President himself declares he is unable to discharge his duties:

1. President transmits to the Senate President (SP) and House Speaker


(HS) written declaration that he is unable to discharge his duties as
President.
2. Vice President will assume duties as Acting President.
3. President transmits to the Senate President and House Speaker that
his inability does not exist anymore.
4. President reassumes duties.
2nd to 4th paragraph: Cabinet declares President unfit to discharge his duties:

1. Majority of cabinet members transmit to the SP and HS written


declaration that President unfit to discharge his duties.
2. VP to immediately assume duties as Acting President.
3. President declares that no such inability exists.
4. President reassumes duties.
5. If within 5 days, majority of the cabinet insists that President cannot
discharge his duties, they shall transmit another declaration to the
SP and HS.
6. Congress will convene immediately if in session and within 48
hours if not in session.
7. Congress votes that President cannot discharge his duties.
8. Vice President will assume duties as President (and not Acting
President).
9. Otherwise, if Congress votes that President can discharge his duties,
he shall continue exercising his powers and duties.

What happens to the appointments extended by the Acting President?

They remain effective, unless revoked by the elected President within ninety days from his
assumption or reassumption of office.

CONSTITUTION, Article VII, Sec. 12. In case of serious illness of the President, the
public shall be informed of the state of his health. The Members of the Cabinet in charge of
national security and foreign relations and the Chief of Staff of the Armed Forces of the
Philippines, shall not be denied access to the President during such illness.

Extraordinary inflation
SEPTEMBER 3, 2018

“Government agencies and various investment houses expected inflation, or the movement of
prices of goods, to jump even higher in August.

The Department of Finance (DOF) announced on Monday, September 3, that they projected
inflation to settle at 5.9%.”

https://www.rappler.com/business/211006-august-2018-inflation-projections

LEGAL IMPLICATION:

CIVIL CODE, Article 1250. In case an extraordinary inflation or deflation of the currency
stipulated should supervene, the value of the currency at the time of the establishment of the
obligation shall be the basis of payment, unless there is an agreement to the contrary.
NOTE:

The existence of extraordinary inflation must be officially proclaimed by competent


authorities (BSP).

Same-sex marriage
SEPTEMBER 3, 2018

In June 2018, the Supreme Court heard a petition to legalize same-sex marriage.

Does same-sex marriage violate the Revised Penal Code?

RELATED LEGAL PROVISION:

REVISED PENAL CODE, Article 350. Marriage contracted against provisions of laws. –
The penalty of prision correccional in its medium and maximum periods shall be imposed
upon any person who, without being included in the provisions of the next proceeding
article,* shall have not been complied with or that the marriage is in disregard of a legal
impediment.

If either of the contracting parties shall obtain the consent of the other by means of violence,
intimidation or fraud, he shall be punished by the maximum period of the penalty provided in
the next preceding paragraph.

*NOTE: This refers to the provision penalizing bigamy.

The elements of the offense under Article 350 are:

1. The offender contracted marriage.


2. He knew at the time that:
 the requirements of the law were not complied with, OR
 the marriage was in disregard of a legal impediment.

Qualifying circumstance: If either of the contracting parties obtains the consent of the other
by means of violence, intimidation or fraud, the penalty is prision mayor.

N.B. I am for marriage equality. I personally don’t think same-sex marriage violates this
provision. But some lecturers think so since the Family Code requires the parties contracting
marriage to be a male and female.
Presidential succession
SEPTEMBER 3, 2018

“President Rodrigo Duterte said Tuesday he would rather have former Sen. Bongbong
Marcos or Sen. Francis Escudero as his replacement instead of Vice President Leni Robredo.

This, as Duterte again belittled the capabilities of his constitutional successor.”

https://news.abs-cbn.com/news/08/15/18/duterte-prefers-bongbong-chiz-as-replacement-
instead-of-leni

LEGAL IMPLICATIONS:

The presidential line of succession is as follows: President, Vice-President, Senate President,


Speaker of the House.

In case of death, permanent disability, or resignation of the above, Congress shall, by law,
provide who shall serve as President.

The President designated by such law shall serve until the President or Vice President shall
have been elected and qualified.

CONSTITUTION, Article VII, Section 8. In case of death, permanent


disability, removal from office, or resignation of the President, the Vice-
President shall become the President to serve the unexpired term. In case
of death, permanent disability, removal from office, or resignation of both
the President and Vice-President, the President of the Senate or, in case of
his inability, the Speaker of the House of Representatives, shall then act as
President until the President or Vice-President shall have been elected
and qualified.

The Congress shall, by law, provide who shall serve as President in case
of death, permanent disability, or resignation of the Acting President. He
shall serve until the President or the Vice-President shall have been
elected and qualified, and be subject to the same restrictions of powers
and disqualifications as the Acting President.

However, note that there is a different rule when there vacancy occurs in the offices of the
President and Vice President at the same time:
CONSTITUTION, Article VII, Section 10. The Congress shall, at ten
o’clock in the morning of the third day after the vacancy in the offices of
the President and Vice-President occurs, convene in accordance with its
rules without need of a call and within seven days enact a law calling for a
special election to elect a President and a Vice-President to be held not
earlier than forty-five days nor later than sixty days from the time of such
call. The bill calling such special election shall be deemed certified under
paragraph 2, Section 26, Article VI of this Constitution and shall become
law upon its approval on third reading by the Congress. Appropriations
for the special election shall be charged against any current
appropriations and shall be exempt from the requirements of paragraph 4,
Section 25, Article VI of this Constitution. The convening of the Congress
cannot be suspended nor the special election postponed. No special
election shall be called if the vacancy occurs within eighteen months
before the date of the next presidential election.

Shift to federalism
SEPTEMBER 3, 2018

The present administration is still intent on shifting to the federal form of government.

Well, a question on federalism or constitutional revision or amendment might come out in


the bar exam again.

LEGAL PROVISIONS:

What are the methods of amending or revising the Constitution?

There are 3 methods to amend or revise the Constitution, namely, by constituent assembly,
constitutional convention, and through people’s initiative.

Under the first mode, the Congress, acting as a constituent assembly, may propose any
amendment or revision to the Constitution upon a vote of three-fourths of all its Members.

Under the second mode, a constitutional convention may propose any amendment or revision
to the Constitution. The Congress may, by a vote of two-thirds of all its Members, call a
constitutional convention, or by a majority vote of all its Members, submit to the electorate
the question of calling such a convention.
Under the third mode, amendments to this Constitution may be directly proposed by the
people through initiative upon a petition of at least 12% of the total number of registered
voters, of which every legislative district must be represented by at 3% of the registered
voters therein.

Any such amendment or revision shall be valid when ratified by a majority of the votes cast
in a plebiscite.

What are the tests to determine if the change is an amendment or revision?

We use the qualitative and quantitative tests.

Qualitative test:

“The qualitative test inquires into the qualitative effects of the proposed change in the
constitution. The main inquiry is whether the change will “accomplish such far reaching
changes in the nature of our basic governmental plan as to amount to a revision.”Whether
there is an alteration in the structure of government is a proper subject of inquiry. Thus, “a
change in the nature of [the] basic governmental plan” includes “change in its fundamental
framework or the fundamental powers of its Branches.” A change in the nature of the basic
governmental plan also includes changes that ‘jeopardize the traditional form of government
and the system of check and balances.'” (Lambino v. COMELEC)

Quantitative test:

“The quantitative test asks whether the proposed change is “so extensive in its provisions as
to change directly the ‘substantial entirety’ of the constitution by the deletion or alteration of
numerous existing provisions.” The court examines only the number of provisions affected
and does not consider the degree of the change.” (Lambino v. COMELEC)

Withdrawal from the ICC


SEPTEMBER 3, 2018

or any treaties in general.

“President Rodrigo Duterte cannot unilaterally withdraw the Philippines from the
International Criminal Court (ICC), Senior Associate Justice Antonio Carpio said during
Supreme Court (SC) oral arguments on Tuesday, August 28.”

https://www.rappler.com/nation/210612-carpio-says-duterte-cannot-withdraw-from-
international-criminal-court-unilaterally
RELATED LEGAL CONCEPTS:

Is withdrawal from treaties allowed under the Vienna Convention on the Law of
Treaties (VCLOT)?

The general rule under the VCLOT is that withdrawal from or denunciation of a treaty is
generally not possible, unless any of the following exceptions exist:

 The treaty itself provides for such right to withdraw;

 The party seeking to withdraw obtains, after consultation, the


consent thereto of
all the other contracting parties;

 The parties intended to admit the possibility of denunciation or


withdrawal
notwithstanding the absence of such provision in the treaty; and

 A right of denunciation or withdrawal is implied by the nature of


the treaty.

Lastly, the party seeking to withdraw must discharge the burden to show that one of the
exceptions is present.

For the Rome Statute, is withdrawal allowed?

Yes, withdrawal from the Rome Statute is allowed under the first exception, that is, the treaty
itself provides for such right to withdraw.

Article 127

Withdrawal

1. A State Party may, by written notification addressed to the Secretary-General of the United
Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date
of receipt of the notification, unless the notification specifies a later date.

2. A State shall not be discharged, by reason of its withdrawal, from the obligations arising
from this Statute while it was a Party to the Statute, including any financial obligations which
may have accrued. Its withdrawal shall not affect any cooperation with the Court in
connection with criminal investigations and proceedings in relation to which the withdrawing
State had a duty to cooperate and which were commenced prior to the date on which the
withdrawal became effective, nor shall it prejudice in any way the continued consideration of
any matter which was already under consideration by the Court prior to the date on which the
withdrawal became effective.
https://www.icc-cpi.int/nr/rdonlyres/add16852-aee9-4757-abe7-
9cdc7cf02886/283503/romestatuteng1.pdf

Under Philippine Law, is Senate concurrence required?

This is actually the subject of 2008 Bar Exam Question in Political Law.

“III. The President alone without the concurrence of the Senate abrogated a treaty. Assume
that the other country-party to the treaty is agreeable to the abrogation provided it complies
with the Philippine Constitution. If a case involving the validity of the treaty abrogation is
brought to the Supreme Court, how should it be resolved? (6%)”
https://www.lawphil.net/courts/bm/barQ/2008/poliQ.html

The UP Law Center provided three suggested answers.

SUGGESTED ANSWER 1:

The Supreme Court should dismiss the case. The jurisdiction of the Supreme Court (or all of
lowers courts) over a treaty is only with respect to questions of its constitutionality of validity
(See Art. VIII, sec. 5(2)(a) of the 1987 Constitution). In other words, the question should
involve the constitutionality of a treaty or its validity in relation to a statute (Gonzales v.
Hechanova, 9 SCRA 230 [1963]). It does not pertain to the termination (or abrogation) of a
treaty.

The authority of the Senate over treaties is limited to concurrence (Art. VIII, sec. 21 of the
1987 Constitution). There being no express constitutional provision regulating the
termination or abrogation of treaties, it is presumed that the power of the President over treaty
agreements and over foreign relations includes the authority to “abrogate” (or more properly
referred as “terminate”) treaties. The termination of the treaty by the President without
concurrence of the Senate is not subject to constitutional attack, there being no Senate
authority to that effect.

The Philippines is a party to the Vienna Convention on the Law of Treaties. Hence, the said
Convention thus becoming part of Philippine Law governs the act of the President in
terminating (or abrogating) the treaty. Article 54 of this Convention provides that a treaty
may be terminated “at any time by consent of all parties.” Apparently, the treaty in question
is a bilateral treaty in which the other state is agreeable to its termination. Article 67 of the
Convention adds the formal requirement that the termination must be in an instrument
communicated to the other party signed by the Head of State or Government or by the
Minister of Foreign Affairs.

SUGGESTED ANSWER 2:

“The Supreme Court should dismiss the case. the case involved is a political question,
because it involves the authority of the President in the conduct of foreign relations and the
extent to which the Senate is authorized to negate the action of the President. Since Section
21, Article VII of the Constitution is silent as to the participation of the Senate in the
abrogation of a treaty, the question may be answered in different ways and should be decided
by political standards rather than judicially manageable standards (Goldwater v. Carter, 444
US 996 [1979]).”

SUGGESTED ANSWER 3:

“While it is the President who negotiates and ratifies treaties and other international
agreements, it must be underscored that when the same has been concurred in by the qualified
majority of the Senate, they become part of the law of the land. Accordingly, it is submitted
that the President alone cannot unilaterally abrogate a treaty without Congressional
authorization, in the same way that she would have no authority to repeal a law.

Further, even as what the Constitution requires in the concurrence of the Senate in treaties
and international agreements entered into, not the abrogation of the same, the same should
not also be construed as empowering the President to simply render nugatory a treaty that has
already acquired the imprimatur of the Senate. (See Goldwater v. Carter, 444 US 996 [1979],
cited in Bernas, An Introduction to Public International Law (2002) at 53).”

Personally, I believe the third suggested answer is the correct one.

As much as the executive power to initiate withdrawal from treaties is implied from the
power to ratify treaties, the same safeguard must attend both powers to ratify and withdraw
from treaties. In this regard, I submit that Senate concurrence is likewise required to make
withdrawal from a treaty valid. There are two apparent reasons for this.

First, as stated earlier, our Constitution instituted Senate concurrence as a check on the power
of the President to ratify treaties. Thus, it will be absurd for the Constitution not to grant the
Senate the same implied authority to check the power of the President to withdraw from
treaties. Indeed, without the safeguard of Senate concurrence, the President may very well
withdraw from all treaties previously concurred in by the Senate.

Second, as much as treaty ratification brings to the domestic sphere the substantive content of
treaties, withdrawal would mean the repeal thereof. Hence, if Senate concurrence is not
required to validate treaty withdrawals, it will result in the implied grant of power to repeal
national law on the President. Certainly, this absurdity is not envisioned by our Constitution.
Thus, to authorize such repeal, legislative participation is also necessary. Senate concurrence
performs this function.
Dismissal of the Deputy Ombudsman
SEPTEMBER 3, 2018

Palace fires Deputy Ombudsman

Disciplinary authority of the President over the Deputy Ombudsman

In Gonzales III v. Office of the President, the Supreme Court held that “Section 8(2) of RA
No. 6770 vesting disciplinary authority in the President over the Deputy Ombudsman violates
the independence of the Office of the Ombudsman and is thus unconstitutional.”

Disciplinary authority of the President over the Office of the Special Prosecutor

Under Section 8(2) of the RA No. 6670, the President has disciplinary authority over the
Special Prosecutor. This constitutionality of this provision has been upheld in Gonzales III v.
Office of the President.

For reference is the dispositive portion of the Gonzales case:

“In the voting held on January 28, 2014, by a vote of 8-7, the Court resolved to reverse its
September 4, 2012 Decision insofar as petitioner Gonzales is concerned (G.R. No. 196231).
We declared Section 8(2) of RA No. 6770 unconstitutional by granting disciplinary
jurisdiction to the President over a Deputy Ombudsman, in violation of the independence of
the Office of the Ombudsman.

However, by another vote of 8-7, the Court resolved to maintain the validity of Section 8(2)
of RA No. 6770 insofar as Sulit is concerned. The Court did not consider the Office of the
Special Prosecutor to be constitutionally within the Office of the Ombudsman and is, hence,
not entitled to the independence the latter enjoys under the Constitution.”

Summary

The Office of the President has disciplinary powers over the Office of the Special Proseuctor,
but not over a Deputy Ombudsman.

Revocation of Trillanes’s amnesty


SEPTEMBER 4, 2018

President Rodrigo Duterte revoked the 2010 amnesty granted to opposition senator Antonio
Trillanes IV, “effective immediately.” Duterte signed Proclamation No. 572, declaring
Trillanes’ amnesty “void ab initio.”
Duterte revokes Trillanes’ amnesty

Can the President revoke amnesty previously granted to a person?

“CONSTITUTION, Article VII, Section 19. Except in cases of impeachment, or as otherwise


provided in this Constitution, the President may grant reprieves, commutations and pardons,
and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the
Members of the Congress.”

My own view is that he cannot revoke it, without the concurrence of a majority of all the
Members of the Congress.

Similar to withdrawal from treaties, amnesty is a joint executive-legislative act. Hence, any
revocation should be with concurrence of a majority of all the Members of the Congress.

RELATED LEGAL CONCEPTS:

Is an amnesty subject of mandatory judicial notice?

Yes, it is subject of mandatory judicial notice.

Under Rule 129, Section 1 of the Rules of Court, official acts of the executive and legislative
departments are subject of mandatory judicial notice.

Amnesty is a joint act of the executive and legislative departments of the government.

Hence, it is indeed subject of mandatory judicial notice.

In the case of Senator Trillanes, is there any court decision that took mandatory judicial
notice of his amnesty?

Yes.

In the case of Magdalo Para sa Pagbabago v. COMELEC.

In this case, Magdalo assailed the COMELEC’s denial of their application as party-list. The
COMELEC denied their application because they use violence or unlawful means to achieve
their goals.

The Supreme Court held that the ground used by the COMELEC is correct. However, the
Commission failed to recognize the amnesty given on the Magdalo soldiers. This amnesty
obliterated the offense itself.
In effect, the Supreme Court took mandatory judicial notice of Presidential Proclamation No.
75 (2010) and the Concurrent Resolution No. 4 of Congress, which granted amnesty to the
Magdalo soldiers, including Senator Trillanes.

What is the difference between pardon and amnesty?

Pardon and amnesty may be distinguished as follows:

 As to persons covered, pardon covers single individuals; whereas


amnesty covers classes of individuals;
 As to offenses covered, pardon covers offenses against the peace of
the State; whereas amnesty covers only offenses committed against
the State;
 As to proof, pardon must be proved because it is a private act of the
President; whereas amnesty need not be proved since is subject of
mandatory judicial notice.
 As to requirement of acceptance, pardon must be accepted by the
grantee; whereas amnesty does not require acceptance, only an
admission of guilt.
 As to concurrence of Congress, pardon does not require
concurrence of Congress whereas amnesty must be approved by
absolute majority of Congress, voting separately.
 As to effect, pardon looks forward and obliterates the consequences
of conviction; whereas amnesty looks backward and obliterate the
offense itself, as if it was never committed.

Trillanes arrest
SEPTEMBER 4, 2018

Senators back Sotto’s stand on Trillanes’ arrest

Can a Senator be arrested?

Article VI, Section 11 of the Constitution provides that a Senator or Member of the House of
Representatives are privileged from arrest, provided two requisites concur:

(a) The offense is not punishable by not more than 6 years imprisonment;

(b) Congress is in session.

The full constitutional provision reads:


CONSTITUTION, Article VI, Section 11. A Senator or Member of the House of
Representatives shall, in all offenses punishable by not more than six years imprisonment, be
privileged from arrest while the Congress is in session. No Member shall be questioned nor
be held liable in any other place for any speech or debate in the Congress or in any committee
thereof.

Jurisdiction over constitutionality of tax


laws
SEPTEMBER 4, 2018

TRAIN’s legality questioned before Supreme Court

In January this year, the Makabayan bloc assailed the constitutionality of the TRAIN Law.
This post, however, is not about this case per se but about a related matter:

Does the CTA have jurisdiction to pass upon the constitutionality of tax laws?

The Supreme Court has flip-flopped on whether the CTA indeed has jurisdiction to settle
issues of constitutionality of tax laws. But the latest en banc decision to settle the matter
is Banco de Oro v. Republic,promulgated in 2015.

In Banco de Oro, the Court clarified that the CTA indeed has jurisdiction to pass upon the
constitutionality of tax laws:

“We revert to the earlier rulings in Rodriguez, Leal, and Asia International Auctioneers,
Inc. The Court of Tax Appeals has exclusive jurisdiction to determine the constitutionality or
validity of tax laws, rules and regulations, and other administrative issuances of the
Commissioner of Internal Revenue.”

Banco de Oro reversed several cases, which earlier declared that it is the RTC that has
jurisdiction over constitutionality of tax laws.

The Court also added that a taxpayer may either set up the unconstitutionality of tax laws as a
defense or even file an action directly with the CTA to assail the constitutionality of a tax
measure:

“The Court of Tax Appeals has undoubted jurisdiction to pass upon the constitutionality or
validity of a tax law or regulation when raised by the taxpayer as a defense in disputing or
contesting an assessment or claiming a refund. It is only in the lawful exercise of its power to
pass upon all maters brought before it, as sanctioned by Section 7 of Republic Act No. 1125,
as amended.
This Court, however, declares that the Court of Tax Appeals may likewise take cognizance of
cases directly challenging the constitutionality or validity of a tax law or regulation or
administrative issuance (revenue orders, revenue memorandum circulars, rulings).”

Now, the question is, does the RTC still have jurisdiction to over the issue of constitutionality
of tax laws? The Court opined that the CTA has exclusive jurisdiction to resolve all tax
problems. Moreover, RA 9282, which expanded the CTA’s jurisdiction, was held to be an
exception to the original jurisdiction of the RTCs over actions questioning the
constitutionality of tax laws. The relevant portion is quoted here:

“In other words, within the judicial system, the law intends the Court of Tax Appeals to have
exclusive jurisdiction to resolve all tax problems. Petitions for writs of certiorari against the
acts and omissions of the said quasi-judicial agencies should, thus, be filed before the Court
of Tax Appeals.

Republic Act No. 9282, a special and later law than Batas Pambansa Blg. 129 provides an
exception to the original jurisdiction of the Regional Trial Courts over actions questioning the
constitutionality or validity of tax laws or regulations. Except for local tax cases, actions
directly challenging the constitutionality or validity of a tax law or regulation or
administrative issuance may be filed directly before the Court of Tax Appeals.”

Prosecuting drugs cases


SEPTEMBER 5, 2018

A great deal of cases penned by Justice Del Castillo involve violations of the Comprehensive
Dangerous Drugs Act or Republic Act No. 9165, as amended. Here are some salient points
about drugs cases:

What is the rule on chain of custody?

Chain of custody is the duly recorded authorized movements and custody of seized drugs or
controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each
stage, from the time of seizure [or] confiscation to receipt in the forensic laboratory to
safekeeping, to presentation in court for destruction (People v. Gayoso, per J. Del Castillo).

What are the links in the chain that must be proved?

There are four links to be established.

First, the seizure and marking, if practicable, of the illegal drug recovered from the accused
by the apprehending officer;
Second, the turnover of the illegal drug seized by the apprehending officer to the
investigating officer;

Third, the turnover by the investigating officer of the illegal drug to the forensic chemist for
laboratory examination; and

Fourth, the turnover and submission of the marked illegal drug seized from the forensic
chemist to the court. (Id.)

What happens when there is non-compliance with the chain of custody rule?

Compliance with the rule on chain of custody affects the weight of the evidence, and NOT its
admissibility.

Hence, non-compliance with the chain of custody rule does not render the confiscated drug
inadmissible. But it lessens the weight of the evidence so much so that non-compliance may
prove fatal to the prosecution’s case.

Is there an exception to the strict compliance with the chain of custody rule?

Yes, there is.

The Comprehensive Dangerous Drugs Act has been amended in July 2013 by Republic Act
No. 10640.

The amendment introduced a proviso which reads:

“SEC. 21(1). x x x Provided, finally, That noncompliance of these requirements under


justifiable grounds, as long as the integrity and the evidentiary value of the seized items are
properly preserved by the apprehending officer/team, shall not render void and invalid such
seizures and custody over said items.” (Emphasis supplied.)

This proviso incorporates what has previously been in the IRR to Republic Act No. 9165.

Here’s a question coming a Del Castillo case:

Authorities confiscated ephedrine from the accused. Ephedrine is a known precursor to


shabu. However, the information charged the accused with possession of shabu. Is the
accused’s right to be informed of the nature and cause of the accusations against him
violated?

No, the accused’s right to be informed of the nature and cause of the accusations against him
is not violated.
The Supreme Court reasoned that ephedrine is a precursor drug to shabu, differing only by a
single oxygen atom. Moreover, the accused is charged with violating Sections 15 and 16 of
the Comprehensive Dangerous Drugs Act, which penalize the crime of illegal sale and
possession of regulated drugs. Ephedrine has been classified as a regulated drug by the
Dangerous Drugs Board. (People v. Noque)

The full quote is reproduced below:

“Thus, on March 17, 1988, pursuant to Section 20(8) of RA 6425, as amended, the
Dangerous Drugs Board in its Board Regulation No. 2, S. 1988, classified as regulated drug
all raw materials of ephedrine, as well as preparations containing the said drug. The chemical
formula of ephedrine is C10 H15 NO, whereas that of methamphetamine is C10 H15 N. The
only difference between ephedrine and methamphetamine is the presence of a single atom of
oxygen in the former. The removal of the oxygen in ephedrine will produce
methamphetamine. With ephedrine containing fifty percent (50%) of methamphetamine
hydrochloride if the oxygen content in the former is removed, the nearly 680 grams of
ephedrine seized from the appellant contains about 340 grams of methamphetamine
hydrochloride.

Moreover, as correctly observed by CA, the offenses designated in the Informations are for
violations of Sections 15 and 16 of RA 6425, which define and penalize the crimes of illegal
sale and possession of regulated drugs. The allegations in the Informations for the
unauthorized sale and possession of shabu or methamphetamine hydrochloride are
immediately followed by the qualifying phrase which is a regulated drug. Thus, it is clear that
the designations and allegations in the Informations are for the crimes of illegal sale and
illegal possession of regulated drugs. Ephedrine has been classified as a regulated drug by the
Dangerous Drugs Board in Board Resolution No. 2, Series of 1988.” (Id.)

Quo warranto
SEPTEMBER 6, 2018

Quo Warranto under the Rules of Court

NOTE: The Supreme Court promulgated Republic v. Sereno beyond the cut-off. But this does
not prevent the bar examiners from asking anything related to quo warranto proceedings.

In the 2016 Bar Exam, the Grace Poe case was also promulgated beyond the cut-off.
However, a question on the history of natural born citizenship under the 1935, 1973 and 1987
Constitutions was nonetheless asked in the 2016 Political Law exam, an obvious nod to the
Grace Poe case.

Here, I discuss some relevant principles on quo warranto.


What is a quo warranto proceeding?

A quo warranto proceeding is the proper legal remedy to determine the right or title to the
contested public office or to oust the holder from its enjoyment. [Republic v. Sereno
(Resolution), citing Defensor-Santiago v. Guingona).

Who may commence quo warranto proceedings

1. The Solicitor General or a public prosector, may commence a quo


warranto proceeding:

a. when directed by the President of the Philippines, or upon complaint, or when he (the
Solicitor General or public prosecutor) has good reason to believe that the grounds for quo
warranto can be established by proof; or

b. at the request and upon relation of another person, with the permission of the court. (Rule
66, Sections 2-3)

2. An individual may commence a quo warranto proceeding when he claims to be entitled to


the office or position usurped. (Rule 66, Section 5).

Jurisdiction over quo warranto proceedings

The RTC, CA, and SC have concurrence original jurisdiction over petitions for quo warranto.

Venue of quo warranto proceedings

A petition for quo warranto should be brought before the RTC having territorial jurisdiction
over the area where the respondent or any of the respondents resides.

However, when Solicitor General commences the action, he may file it with the RTC of
Manila, CA, and SC. (Rule 66, Section 7).

Prescriptive period

An action for quo warranto must be filed within 1 year after the cause of such ouster, or the
right of the petitioner to hold such office or position.

A action for damages arising from usurpation of office should be filed within 1 year after the
entry of the judgment establishing the petitioner’s right to the office in question. (Rule 66,
Section 11)

What is the difference between quo warranto under the Rules of Court (ROC) and that
under the Omnibus Election Code (OEC)?
As to subject, quo warranto under the ROC may be filed against appointive officials; whereas
that under the OEC may be filed against elective officials.

As to grounds, quo warranto under the ROC may be filed due to the illegality of the
occupancy of the office by virtue of appointment; whereas that under the OEC may be filed
on the ground of ineligibility or disloyalty.

As to period, quo warranto under the ROC should be filed within 1 year from the time of the
cause of ouster or when the right of petition to hold the office arose; whereas that under the
OEC should be filed within 10 days from proclamation.

As to the proper court or tribunal, quo warranto under the ROC may be filed with the RTC,
CA, SC; whereas that under the OEC may be filed with the COMELEC, RTC, MTC, as the
case may be.

As to who may file the petition, under the ROC a person claiming to be entitled to the office
may file the petition; whereas under the OEC, any voter may file the petition for quo
warranto.

(Riano, II Civil Procedure 346-347).

Revolutionary government
SEPTEMBER 6, 2018

What will happen if we have a revolutionary government?

The Supreme Court answered this question in Republic v. Sandiganbayan, Ramas, and
Dimaano.

The facts are as follows:

Days after the EDSA Revolution, Cory Aquino promulgated EO No. 1 creating the PCGG.
EO No. 1 charged PCGG with the task of recovering ill-gotten wealth of the Marcoses.

Pursuant to its mandate, the PCGG charged Major General Rama and Dimaano for their
unexplained wealth, in violation of RA No. 1379 (1955). On March 3, 1986, a constabulary
raiding team served at Dimaano’s residence a search warrant captioned Illegal Possession of
Firearms and Ammunition. The raiding team seized firearms as well as other
items not included in the search warrant, such as cash, jewelry, and land titles.

On the basis of the seized items, the PCGG charged Ramas and Dimaano before the
Sandiganbayan. However, after trial, the Sandiganbayan dismissed the case due to the
inadmissibility of the seized evidence.
The Republic argued that on March 3, 1986, or 5 days after the EDSA Revolution, the
country was under a revolutionary government. The Republic asserts that the declaration that
there is a revolutionary government effectively suspended the operation of the 1973
Constitution. Without the 1973 Constitution, respondents did not have exclusionary right.
Hence, the evidence allegedly were admissible.

The Supreme Court resolved two material issues:

(1) Was the revolutionary government bound by the Bill of Rights under the 1973
Constitution during its take-over of power from Marcos?

(2) Were individuals nevertheless protected by the International Covenant on Civil and
Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR) during
this period?

First issue:

The Court held that the 1973 Constitution, including its Bill of Rights, was not operative as to
the revolutionary government:

“During the interregnum, the directives and orders of the revolutionary government were the
supreme law because no constitution limited the extent and scope of such directives and
orders. With the abrogation of the 1973 Constitution by the successful revolution, there was
no municipal law higher than the directives and orders of the revolutionary government.
Thus, during the interregnum, a person could not invoke any exclusionary right under a Bill
of Rights because there was neither a constitution nor a Bill of Rights during the
interregnum.”

The Court explained that a revolutionary government is one that is not bound by any
constitution:

“During the interregnum, the government in power was concededly a revolutionary


government bound by no constitution. No one could validly question the sequestration orders
as violative of the Bill of Rights because there was no Bill of Rights during the interregnum.
However, upon the adoption of the Freedom Constitution, the sequestered companies assailed
the sequestration orders as contrary to the Bill of Rights of the Freedom Constitution.”

Second Issue:

Notwithstanding the suspension of the 1973 Constitution, the Court held that individuals are
nevertheless protected by international human rights norms, particularly the ICCPR and the
UDHR. Under the ICCPR and UDHR, persons are protected from arbitrary interference with
their privacy, family, home or correspondence. The UDHR also provides that no one shall be
arbitrarily deprived of his property. Because the revolutionary government did not repudiate
these obligations, it remained bound to comply with them in good faith:
‘The revolutionary government, after installing itself as the de jure government,
assumed responsibility for the State’s good faith compliance with the [ICCPR] to which
the Philippines is a signatory.Article 2(1) of the Covenant requires each signatory State “to
respect and to ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the present Covenant.” Under Article 17(1) of the Covenant, the
revolutionary government had the duty to insure that ‘[n]o one shall be subjected to arbitrary
or unlawful interference with his privacy, family, home or correspondence.’

The [UDHR], to which the Philippines is also a signatory, provides in its Article 17(2)
that “[n]o one shall be arbitrarily deprived of his property.”Although the signatories to
the Declaration did not intend it as a legally binding document, being only a declaration, the
Court has interpreted the Declaration as part of the generally accepted principles of
international law and binding on the State. Thus, the revolutionary government was
also obligated under international law to observe the rights of individuals under the
[UDHR].

The revolutionary government did not repudiate the Covenant or the Declaration
during the interregnum. Whether the revolutionary government could have repudiated all
its obligations under the Covenant or the Declaration is another matter and is not the issue
here. Suffice it to say that the Court considers the Declaration as part of customary
international law, and that Filipinos as human beings are proper subjects of the rules of
international law laid down in the Covenant. The fact is the revolutionary government did
not repudiate the Covenant or the Declaration in the same way it repudiated the 1973
Constitution. As the de jure government, the revolutionary government could not
escape responsibility for the State’s good faith compliance with its treaty obligations
under international law.’ (Emphasis supplied)

ASIDE:

As an aside, if we have a revolutionary government under Duterte, and the revolutionary


government repudiates the ICCPR, UDHR, and all the other human rights instruments, we
will all be persons without rights in our country. What a scary prospect.