Candelaria – Favorite Questions

1. Hard Law - Hard law refers to actual binding legal instruments and laws. In
contrast with soft law, hard law gives States and international actors actual
binding responsibilities as well as rights. The term is common in international law
where there are no sovereign governing bodies. Sources of hard law include
international conventions/ agreements/ treaties, and customary international law.
These instruments result in legally enforceable commitments for states and other
subjects of international law. (Bernas, ICJ Statute)

2. Soft Law – Also known as “non-treaty agreements” in other sources. They are
international agreements not concluded as treaties, and therefore are not
covered by the Vienna Convention on the Law of Treaties. Other sources of soft
law include administrative rules which guide the practice of states in relation to
international organization. These are mostly administrative procedures that are
carried out with varying degrees of consistency and uniformity that may
eventually ripen into customary law, or become formalized later on as treaties.
Soft law is often preferred as a simpler and more flexible for future relations
between states. It excludes the application of treaty or customary law on the
consequences of breach. (Bernas)

3. Doctrine of Auto-limitation – [By their inherent nature, treaties really limit or

restrict the absoluteness of sovereignty. By their voluntary act, nations may
surrender some aspects of their state power in exchange for greater benefits
granted by or derived from a convention or pact. After all, states, like individuals,
live with coequals, and in pursuit of mutually covenanted objectives and benefits,
they also commonly agree to limit the exercise of their otherwise absolute rights.
Thus, treaties have been used to record agreements between States concerning
such widely diverse matters as, for example, the lease of naval bases, the sale or
cession of territory, the termination of war, the regulation of conduct of hostilities,
the formation of alliances, the regulation of commercial relations, the settling of
claims, the laying down of rules governing conduct in peace and the
establishment of international organizations.

The sovereignty of a state therefore cannot in fact and in reality be considered

absolute. Certain restrictions enter into the picture: (1) limitations imposed by the
very nature of membership in the family of nations and (2) limitations imposed by
treaty stipulations. Thus, when the Philippines joined the United Nations as one
of its 51 charter members, it consented to restrict its sovereign rights under the
"concept of sovereignty as auto-limitation."] (Tanada v. Angara)
4. Doctrine of Specialty – 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. (Government of Hong
Kong vs. Munoz)

5. The nature of the "associative" relationship may have been intended to be

defined more precisely in the still to be forged Comprehensive Compact.
Nonetheless, given that there is a concept of "association" in international law,
and the MOA-AD - by its inclusion of international law instruments in its TOR-
placed itself in an international legal context, that concept of association may be
brought to bear in understanding the use of the term "associative" in the MOA-
AD.

Keitner and Reisman state that [a]n association is formed when two states of
unequal power voluntarily establish durable links. In the basic model, one state,
the associate, delegates certain responsibilities to the other, the principal, while
maintaining its international status as a state. Free associations represent a
middle ground between integration and independence. x x x

In international practice, the "associated state" arrangement has usually been

used as a transitional device of former colonies on their way to full independence.
Examples of states that have passed through the status of associated states as a
transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St.
Vincent and Grenada. All have since become independent states.

Back to the MOA-AD, it contains many provisions which are consistent with the
international legal concept of association, specifically the following: the BJE's
capacity to enter into economic and trade relations with foreign countries, the
commitment of the Central Government to ensure the BJE's participation in
meetings and events in the ASEAN and the specialized UN agencies, and the
continuing responsibility of the Central Government over external defense.
Moreover, the BJE's right to participate in Philippine official missions bearing on
negotiation of border agreements, environmental protection, and sharing of
revenues pertaining to the bodies of water adjacent to or between the islands
forming part of the ancestral domain, resembles the right of the governments of
FSM and the Marshall Islands to be consulted by the U.S. government on any
foreign affairs matter affecting them.
 These provisions of the MOA indicate, among other things, that the Parties
aimed to vest in the BJE the status of an associated state or, at any rate, a status
closely approximating it. (Province of North Cotabato v. GRP)

6. Co Kim Cham v. Valdez Tan Keh - It is a legal truism in political and international
law that all acts and proceedings of the legislative, executive, and judicial
departments of a de facto government are good and valid. The question to be
determined is whether or not the governments established in these Islands under
the names of the Philippine Executive Commission and Republic of the
Philippines during the Japanese military occupation or regime were de facto
governments. If they were, the judicial acts and proceedings of those
governments remain good and valid even after the liberation or reoccupation of
the Philippines by the American and Filipino forces.

There are several kinds of de facto governments. The first, or government de

facto in a proper legal sense, is that government that gets possession and control
of, or usurps, by force or by the voice of the majority, the rightful legal
governments and maintains itself against the will of the latter, such as the
government of England under the Commonwealth, first by Parliament and later
by Cromwell as Protector. The second is that which is established and
maintained by military forces who invade and occupy a territory of the enemy in
the course of war, and which is denominated a government of paramount force,
as the cases of Castine, in Maine, which was reduced to British possession in the
war of 1812, and Tampico, Mexico, occupied during the war with Mexico, by the
troops of the United States. And the third is that established as an independent
government by the inhabitants of a country who rise in insurrection against the
parent state of such as the government of the Southern Confederacy in revolt not
concerned in the present case with the first kind, but only with the second and
third kinds of de facto governments.

In view of the foregoing, it is evident that the Philippine Executive Commission,

which was organized by Order No. 1, issued on January 23, 1942, by the
Commander of the Japanese forces, was a civil government established by the
military forces of occupation and therefore a de facto government of the second
kind. It was not different from the government established by the British in
Castine, Maine, or by the United States in Tampico, Mexico. As Halleck says,
"The government established over an enemy's territory during the military
occupation may exercise all the powers given by the laws of war to the conqueror
over the conquered, and is subject to all restrictions which that code imposes. It
is of little consequence whether such government be called a military or civil
government. Its character is the same and the source of its authority the same. In
either case it is a government imposed by the laws of war, and so far it concerns
the inhabitants of such territory or the rest of the world, those laws alone
determine the legality or illegality of its acts." (Vol. 2, p. 466.) The fact that the
Philippine Executive Commission was a civil and not a military government and
was run by Filipinos and not by Japanese nationals, is of no consequence.

Indeed, even if the Republic of the Philippines had been established by the free
will of the Filipino who, taking advantage of the withdrawal of the American forces
from the Islands, and the occupation thereof by the Japanese forces of invasion,
had organized an independent government under the name with the support and
backing of Japan, such government would have been considered as one
established by the Filipinos in insurrection or rebellion against the parent state or
the Unite States. And as such, it would have been a de facto government similar
to that organized by the confederate states during the war of secession and
recognized as such by the by the Supreme Court of the United States in
numerous cases, notably those of Thorington vs. Smith, Williams vs. Bruffy, and
Badly vs. Hunter, above quoted; and similar to the short-lived government
established by the Filipino insurgents in the Island of Cebu during the Spanish-
American war, recognized as a de facto government by the Supreme Court of the
United States in the case of McCleod vs. United States (299 U. S., 416).

The governments by the Philippine Executive Commission and the

Republic of the Philippines during the Japanese military occupation being
de facto governments, it necessarily follows that the judicial acts and
proceedings of the courts of justice of those governments, which are not of
a political complexion, were good and valid, and, by virtue of the well-
known principle of postliminy (postliminium) in international law, remained
good and valid after the liberation or reoccupation of the Philippines by the
American and Filipino forces under the leadership of General Douglas
MacArthur. According to that well-known principle in international law, the
fact that a territory which has been occupied by an enemy comes again
into the power of its legitimate government of sovereignty, "does not,
except in a very few cases, wipe out the effects of acts done by an invader,
which for one reason or another it is within his competence to do. Thus
judicial acts done under his control, when they are not of a political
complexion, administrative acts so done, to the extent that they take effect
during the continuance of his control, and the various acts done during the
same time by private persons under the sanction of municipal law, remain
good. Were it otherwise, the whole social life of a community would be
paralyzed by an invasion; and as between the state and the individuals the
evil would be scarcely less, — it would be hard for example that payment of
taxes made under duress should be ignored, and it would be contrary to
the general interest that the sentences passed upon criminals should be
annulled by the disappearance of the intrusive government ."

There is doubt that the subsequent conqueror has the right to abrogate most of
the acts of the occupier, such as the laws, regulations and processes other than
judicial of the government established by the belligerent occupant. But in view of
the fact that the proclamation uses the words "processes of any other
government" and not "judicial processes" prisely, it is not necessary to determine
whether or not General Douglas MacArthur had power to annul and set aside all
judgments and proceedings of the courts during the Japanese occupation. The
question to be determined is whether or not it was his intention, as representative
of the President of the United States, to avoid or nullify them. If the proclamation
had, expressly or by necessary implication, declared null and void the judicial
processes of any other government, it would be necessary for this court to decide
in the present case whether or not General Douglas MacArthur had authority to
declare them null and void. But the proclamation did not so provide, undoubtedly
because the author thereof was fully aware of the limitations of his powers as
Commander in Chief of Military Forces of liberation or subsequent conqueror.

It is, therefore, evident that the proclamation of General MacArthur of October 23,
1944, which declared that "all laws, regulations and processes of any other
government in the Philippines than that of the said Commonwealth are null and
void without legal effect in areas of the Philippines free of enemy occupation and
control," has not invalidated the judicial acts and proceedings, which are not a
political complexion, of the courts of justice in the Philippines that were continued
by the Philippine Executive Commission and the Republic of the Philippines
during the Japanese military occupation, and that said judicial acts and
proceedings were good and valid before and now good and valid after the
reoccupation of liberation of the Philippines by the American and Filipino forces.

As courts are creatures of statutes and their existence defends upon that of the
laws which create and confer upon them their jurisdiction, it is evident that such
laws, not being a political nature, are not abrogated by a change of sovereignty,
and continue in force "ex proprio vigore" unless and until repealed by legislative
acts. A proclamation that said laws and courts are expressly continued is not
necessary in order that they may continue in force. Such proclamation, if made,
is but a declaration of the intention of respecting and not repealing those laws.
 Therefore, even assuming that Japan had legally acquired sovereignty over
these Islands, which she had afterwards transferred to the so-called Republic of
the Philippines, and that the laws and the courts of these Islands had become the
courts of Japan, as the said courts of the laws creating and conferring jurisdiction
upon them have continued in force until now, it necessarily follows that the same
courts may continue exercising the same jurisdiction over cases pending therein
before the restoration of the Commonwealth Government, unless and until they
are abolished or the laws creating and conferring jurisdiction upon them are
repealed by the said government. As a consequence, enabling laws or acts
providing that proceedings pending in one court be continued by or transferred to
another court, are not required by the mere change of government or sovereignty.
They are necessary only in case the former courts are abolished or their
jurisdiction so change that they can no longer continue taking cognizance of the
cases and proceedings commenced therein, in order that the new courts or the
courts having jurisdiction over said cases may continue the proceedings.

7. Province of North Cotabato v. GRP - The petitions are ripe for adjudication. The
failure of respondents to consult the local government units or communities
affected constitutes a departure by respondents from their mandate under E.O.
No. 3. Moreover, respondents exceeded their authority by the mere act of
guaranteeing amendments to the Constitution. Any alleged violation of the
Constitution by any branch of government is a proper matter for judicial review.

As the petitions involve constitutional issues which are of paramount public

interest or of transcendental importance, the Court grants the petitioners,
petitioners-in-intervention and intervening respondents the requisite locus standi
in keeping with the liberal stance adopted in David v. Macapagal-Arroyo.

Contrary to the assertion of respondents that the non-signing of the MOA-AD and
the eventual dissolution of the GRP Peace Panel mooted the present petitions,
the Court finds that the present petitions provide an exception to the "moot and
academic" principle in view of (a) the grave violation of the Constitution involved;
(b) the exceptional character of the situation and paramount public interest; (c)
the need to formulate controlling principles to guide the bench, the bar, and the
public; and (d) the fact that the case is capable of repetition yet evading review.

The MOA-AD is a significant part of a series of agreements necessary to carry

out the GRP-MILF Tripoli Agreement on Peace signed by the government and
the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or
another one drawn up that could contain similar or significantly dissimilar
provisions compared to the original.

The Court, however, finds that the prayers for mandamus have been rendered
moot in view of the respondents' action in providing the Court and the petitioners
with the official copy of the final draft of the MOA-AD and its annexes.

The people's right to information on matters of public concern under Sec. 7,

Article III of the Constitution is in splendid symmetry with the state policy of full
public disclosure of all its transactions involving public interest under Sec. 28,
Article II of the Constitution. The right to information guarantees the right of the
people to demand information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands. The complete and
effective exercise of the right to information necessitates that its complementary
provision on public disclosure derive the same self-executory nature, subject only
to reasonable safeguards or limitations as may be provided by law.

The contents of the MOA-AD is a matter of paramount public concern involving

public interest in the highest order. In declaring that the right to information
contemplates steps and negotiations leading to the consummation of the contract,
jurisprudence finds no distinction as to the executory nature or commercial
character of the agreement.

An essential element of these twin freedoms is to keep a continuing dialogue or

process of communication between the government and the people. Corollary to
these twin rights is the design for feedback mechanisms. The right to public
consultation was envisioned to be a species of these public rights.

At least three pertinent laws animate these constitutional imperatives and justify
the exercise of the people's right to be consulted on relevant matters relating to
the peace agenda.

One, E.O. No. 3 itself is replete with mechanics for continuing consultations on
both national and local levels and for a principal forum for consensus-building. In
fact, it is the duty of the Presidential Adviser on the Peace Process to conduct
regular dialogues to seek relevant information, comments, advice, and
recommendations from peace partners and concerned sectors of society.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all
national offices to conduct consultations before any project or program critical to
the environment and human ecology including those that may call for the eviction
of a particular group of people residing in such locality, is implemented therein.
The MOA-AD is one peculiar program that unequivocally and unilaterally vests
ownership of a vast territory to the Bangsamoro people, which could pervasively
and drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997
provides for clear-cut procedure for the recognition and delineation of ancestral
domain, which entails, among other things, the observance of the free and prior
informed consent of the Indigenous Cultural Communities/Indigenous Peoples.
Notably, the statute does not grant the Executive Department or any government
agency the power to delineate and recognize an ancestral domain claim by mere
agreement or compromise.

The invocation of the doctrine of executive privilege as a defense to the general

right to information or the specific right to consultation is untenable. The various
explicit legal provisions fly in the face of executive secrecy. In any event,
respondents effectively waived such defense after it unconditionally disclosed the
official copies of the final draft of the MOA-AD, for judicial compliance and public
scrutiny.

In sum, the Presidential Adviser on the Peace Process committed grave abuse of
discretion when he failed to carry out the pertinent consultation process, as
mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The
furtive process by which the MOA-AD was designed and crafted runs contrary to
and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion
of positive duty and a virtual refusal to perform the duty enjoined.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not
only its specific provisions but the very concept underlying them, namely, the
associative relationship envisioned between the GRP and the BJE, are
unconstitutional, for the concept presupposes that the associated entity is a state
and implies that the same is on its way to independence.

While there is a clause in the MOA-AD stating that the provisions thereof
inconsistent with the present legal framework will not be effective until that
framework is amended, the same does not cure its defect. The inclusion of
provisions in the MOA-AD establishing an associative relationship between the
 BJE and the Central Government is, itself, a violation of the Memorandum of
Instructions From The President dated March 1, 2001, addressed to the
government peace panel. Moreover, as the clause is worded, it virtually
guarantees that the necessary amendments to the Constitution and the laws will
eventually be put in place. Neither the GRP Peace Panel nor the President
herself is authorized to make such a guarantee. Upholding such an act would
amount to authorizing a usurpation of the constituent powers vested only in
Congress, a Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure the outcome
of the amendment process is through an undue influence or interference with that
process.

While the MOA-AD would not amount to an international agreement or unilateral

declaration binding on the Philippines under international law, respondents' act of
guaranteeing amendments is, by itself, already a constitutional violation that
renders the MOA-AD fatally defective.

8. Doctrine of suspended allegiance during belligerent occupation – “adoption of

the petitioner's theory of suspended allegiance would lead to disastrous
consequences for small and weak nations or states, and would be repugnant to
the laws of humanity and requirements of public conscience, for it would allow
invaders to legally recruit or enlist the Quisling inhabitants of the occupied
territory to fight against their own government without the latter incurring the risk
of being prosecuted for treason, and even compel those who are not aid them in
their military operation against the resisting enemy forces in order to completely
subdue and conquer the whole nation, and thus deprive them all of their own
independence or sovereignty — such theory would sanction the action of
invaders in forcing the people of a free and sovereign country to be a party in the
nefarious task of depriving themselves of their own freedom and independence
and repressing the exercise by them of their own sovereignty; in other words, to
commit a political suicide”

“as a corollary of the suspension of the exercise of the rights of sovereignty by

the legitimate government in the territory occupied by the enemy military forces,
because the authority of the legitimate power to govern has passed into the
hands of the occupant (Article 43, Hague Regulations), the political laws which
prescribe the reciprocal rights, duties and obligation of government and citizens,
are suspended or in abeyance during military occupation (Co Kim cham vs.
Valdez Tan Keh and dizon, supra), for the only reason that as they exclusively
bear relation to the ousted legitimate government, they are inoperative or not
 applicable to the government established by the occupant; that the crimes
against national security, such as treason and espionage; inciting to war,
correspondence with hostile country, flight to enemy's country, as well as those
against public order, such as rebellion, sedition, and disloyalty, illegal possession
of firearms, which are of political complexion because they bear relation to, and
are penalized by our Revised Penal Code as crimes against the legitimate
government, are also suspended or become inapplicable as against the occupant,
because they can not be committed against the latter (Peralta vs. Director of
Prisons, supra); and that, while the offenses against public order to be preserved
by the legitimate government were inapplicable as offenses against the invader
for the reason above stated, unless adopted by him, were also inoperative as
against the ousted government for the latter was not responsible for the
preservation of the public order in the occupied territory, yet article 114 of the
said Revised Penal Code, was applicable to treason committed against the
national security of the legitimate government, because the inhabitants of
the occupied territory were still bound by their allegiance to the latter
during the enemy occupation” (Laurel v. Misa)

Treason is a war crime. It is not an all-time offense. It cannot be committed in

peace time. While there is peace, there are no traitors. Treason may be
incubated when peace reigns. Treasonable acts may actually be perpetrated
during peace, but there are no traitors until war has started.

As treason is basically a war crime, it is punished by the state as a measure of

self-defense and self-preservation. The law of treason is an emergency measure.
It remains dormant until the emergency arises. But as soon as war starts, it is
relentlessly put into effect. Any lukewarm attitude in its enforcement will only be
consistent with national harakiri. All war efforts would be of no avail if they should
be allowed to be sabotaged by fifth columnists, by citizens who have sold their
country out to the enemy, or any other kind of traitors, and this would certainly be
the case if he law cannot be enforced under the theory of suspension.

The idea of suspended sovereignty or suspended allegiance is incompatible with

our Constitution. (Justice Perfecto’s concurring opinion in Laurel v. Misa)

9. Precautionary Principle - When there is a Jack of full scientific certainty in

establishing a causal link between human activity and environmental effect, the
court shall apply the precautionary principle in resolving the case before it. The
constitutional right of the people to a balanced and healthful ecology shall be
 given the benefit of the doubt. (Rule 20, Rules of Procedure for Environmental
Cases) (See also: environmental law in PIL, Bt talong case)

10. Treaty v. Executive Agreement - Moreover, it is inconsequential whether the

United States treats the VFA only as an executive agreement because, under
international law, an executive agreement is as binding as a treaty. To be sure,
as long as the VFA possesses the elements of an agreement under international
law, the said agreement is to be taken equally as a treaty.

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

international instrument concluded between States in written form and governed
by international law, whether embodied in a single instrument or in two or more
related instruments, and whatever its particular designation." There are many
other terms used for a treaty or international agreement, some of which are: act,
protocol, agreement, compromis d’ arbitrage, concordat, convention, declaration,
exchange of notes, pact, statute, charter and modus vivendi. All writers, from
Hugo Grotius onward, have pointed out that the names or titles of international
agreements included under the general term treaty have little or no legal
significance. Certain terms are useful, but they furnish little more than mere
description.

Article 2(2) of the Vienna Convention provides that "the provisions of paragraph 1
regarding the use of terms in the present Convention are without prejudice to the
use of those terms, or to the meanings which may be given to them in the
internal law of the State."

Thus, in international law, there is no difference between treaties and

executive agreements in their binding effect upon states concerned, as
long as the negotiating functionaries have remained within their powers.
International law continues to make no distinction between treaties and executive
agreements: they are equally binding obligations upon nations.

In our jurisdiction, we have recognized the binding effect of executive

agreements even without the concurrence of the Senate or Congress. In
Commissioner of Customs vs. Eastern Sea Trading, we had occasion to
pronounce:

"x x x the right of the Executive to enter into binding agreements without the
necessity of subsequent congressional approval has been confirmed by long
usage. From the earliest days of our history we have entered into executive
 agreements covering such subjects as commercial and consular relations, most-
favored-nation rights, patent rights, trademark and copyright protection, postal
and navigation arrangements and the settlement of claims. The validity of these
has never been seriously questioned by our courts.

11. Balag v. Senate - The Court finds that there is a genuine necessity to place a
limitation on the period of imprisonment that may be imposed by the Senate
pursuant to its inherent power of contempt during inquiries in aid of legislation.
Section 21, Article VI of the Constitution states that Congress, in conducting
inquiries in aid of legislation, must respect the rights of persons appearing in or
affected therein. Under Arnault, however, a witness or resource speaker cited in
contempt by the Senate may be detained indefinitely due to its characteristic as a
continuing body. The said witness may be detained for a day, a month, a year, or
even for a lifetime depending on the desire of the perpetual Senate. Certainly, in
that case, the rights of persons appearing before or affected by the legislative
inquiry are in jeopardy. The constitutional right to liberty that every citizen enjoys
certainly cannot be respected when they are detained for an indefinite period of
time without due process of law.

As discussed in Lopez, Congress' power of contempt rests solely upon the right
of self-preservation and does not extend to the infliction of punishment as such. It
is a means to an end and not the end itself. Even arguendo that detention under
the legislative's inherent power of contempt is not entirely punitive in character
because it may be used by Congress only to secure information from a
recalcitrant witness or to remove an obstruction, it is still a restriction to the liberty
of the said witness. It is when the restrictions during detention are arbitrary and
purposeless that courts will infer intent to punish. Courts will also infer intent to
punish even if the restriction seems to be related rationally to the alternative
purpose if the restriction appears excessive in relation to that purpose. An
indefinite and unspecified period of detention will amount to excessive restriction
and will certainly violate any person's right to liberty.

Nevertheless, it is recognized that the Senate's inherent power of contempt is of

utmost importance. A legislative body cannot legislate wisely or effectively in the
absence of information respecting the conditions which the legislations are
intended to affect or change. Mere requests for such information are often
unavailing, and also that information which is volunteered is not always accurate
or complete; so some means of compulsion is essential to obtain what is needed
through the power of contempt during legislative inquiry. While there is a
presumption of regularity that the Senate will not gravely abuse its power of
contempt, there is still a lingering and unavoidable possibility of indefinite
imprisonment of witnesses as long as there is no specific period of detention,
which is certainly not contemplated and envisioned by the Constitution.

Thus, the Court must strike a balance between the interest of the Senate and the
rights of persons cited in contempt during legislative inquiries. The balancing of
interest requires that the Court take a conscious and detailed consideration of the
interplay of interests observable in a given situation or type of situation. These
interests usually consist in the exercise by an individual of his basic freedoms on
the one hand, and the government's promotion of fundamental public interest or
policy objectives on the other.

The Court finds that the period of imprisonment under the inherent power of
contempt by the Senate during inquiries in aid of legislation should only
last until the termination of the legislative inquiry under which the said
power is invoked. In Arnault, it was stated that obedience to its process may be
enforced by the Senate Committee if the subject of investigation before it was
within the range of legitimate legislative inquiry and the proposed testimony
called relates to that subject. Accordingly, as long as there is a legitimate
legislative inquiry, then the inherent power of contempt by the Senate may
be properly exercised. Conversely, once the said legislative inquiry
concludes, the exercise of the inherent power of contempt ceases and
there is no more genuine necessity to penalize the detained witness.

Further, the Court rules that the legislative inquiry of the Senate terminates
on two instances:

First, upon the approval or disapproval of the Committee Report. The

importance of the Committee Report is highlighted in the Senate Rules because
it mandates that the committee begin the consideration of its Report within fifteen
(15) days from the conclusion of the inquiry. The said Committee Report shall
then be approved by a majority vote of all its members; otherwise, it is
disapproved. The said Report shall be the subject matter of the next order of
business, and it shall be acted upon by the Senate. Evidently, the Committee
Report is the culmination of the legislative inquiry. Its approval or disapproval
signifies the end of such legislative inquiry and it is now up to the Senate whether
or not to act upon the said Committee Report in the succeeding order of business.
At that point, the power of contempt simultaneously ceases and the detained
witness should be released. As the legislative inquiry ends, the basis for the
detention of the recalcitrant witness likewise ends.
 Second, the legislative inquiry of the Senate also terminates upon the
expiration of one (1) Congress. As stated in Neri, all pending matters and
proceedings, such as unpassed bills and even legislative investigations, of the
Senate are considered terminated upon the expiration of that Congress and it is
merely optional on the Senate of the succeeding Congress to take up such
unfinished matters, not in the same status, but as if presented for the first time.
Again, while the Senate is a continuing institution, its proceedings are terminated
upon the expiration of that Congress at the final adjournment of its last session.
Hence, as the legislative inquiry ends upon that expiration, the imprisonment of
the detained witnesses likewise ends.

12. PCA Arbitration, Philippines v. China - Historic Rights and the ‘Nine-Dash Line’:
The Tribunal found that it has jurisdiction to consider the Parties’ dispute
concerning historic rights and the source of maritime entitlements in the South
China Sea. On the merits, the Tribunal concluded that the Convention
comprehensively allocates rights to maritime areas and that protections for pre-
existing rights to resources were considered, but not adopted in the Convention.
Accordingly, the Tribunal concluded that, to the extent China had historic
rights to resources in the waters of the South China Sea, such rights were
extinguished to the extent they were incompatible with the exclusive
economic zones provided for in the Convention. The Tribunal also noted
that, although Chinese navigators and fishermen, as well as those of other
States, had historically made use of the islands in the South China Sea,
there was no evidence that China had historically exercised exclusive
control over the waters or their resources. The Tribunal concluded that there
was no legal basis for China to claim historic rights to resources within the sea
areas falling within the ‘nine-dash line’.

Status of Features: The Tribunal next considered entitlements to maritime areas

and the status of features. The Tribunal first undertook an evaluation of whether
certain reefs claimed by China are above water at high tide. Features that are
above water at high tide generate an entitlement to at least a 12 nautical
mile territorial sea, whereas features that are submerged at high tide do not.
The Tribunal noted that the reefs have been heavily modified by land
reclamation and construction, recalled that the Convention classifies
features on their natural condition, and relied on historical materials in
evaluating the features. The Tribunal then considered whether any of the
features claimed by China could generate maritime zones beyond 12 nautical
miles. Under the Convention, islands generate an exclusive economic zone
 of 200 nautical miles and a continental shelf, but “[r]ocks which cannot
sustain human habitation or economic life of their own shall have no
exclusive economic zone or continental shelf.” The Tribunal concluded that
this provision depends upon the objective capacity of a feature, in its natural
condition, to sustain either a stable community of people or economic activity that
is not dependent on outside resources or purely extractive in nature. The
Tribunal noted that the current presence of official personnel on many of the
features is dependent on outside support and not reflective of the capacity of the
features. The Tribunal found historical evidence to be more relevant and noted
that the Spratly Islands were historically used by small groups of fishermen and
that several Japanese fishing and guano mining enterprises were attempted. The
Tribunal concluded that such transient use does not constitute inhabitation by a
stable community and that all of the historical economic activity had been
extractive. Accordingly, the Tribunal concluded that none of the Spratly Islands
is capable of generating extended maritime zones. The Tribunal also held
that the Spratly Islands cannot generate maritime zones collectively as a
unit. Having found that none of the features claimed by China was capable of
generating an exclusive economic zone, the Tribunal found that it could—without
delimiting a boundary—declare that certain sea areas are within the exclusive
economic zone of the Philippines, because those areas are not overlapped by
any possible entitlement of China.

In its Award on Jurisdiction, the Tribunal noted that “both the Philippines and
China are parties to the Convention” and that the provisions for the settlement of
disputes, including through arbitration, form an integral part of the Convention.
Although the Convention specifies certain limitations and exceptions to the
subject matter of the disputes that may be submitted to compulsory settlement, it
does not permit other reservations, and a State may not except itself generally
from the Convention’s mechanism for the resolution of disputes.

13. Araullo v. Aquino III - The transfer of appropriated funds, to be valid under
Section 25(5), supra, must be made upon a concurrence of the following
requisites, namely:

(1) There is a law authorizing the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and the heads of the Constitutional Commissions to transfer funds within
their respective offices;
(2) The funds to be transferred are savings generated from the appropriations for
their respective offices; and (3) The purpose of the transfer is to augment an item
in the general appropriations law for their respective offices.

In ascertaining the meaning of savings, certain principles should be borne in

mind. The first principle is that Congress wields the power of the purse. Congress
decides how the budget will be spent; what PAPs to fund; and the amounts of
money to be spent for each PAP. The second principle is that the Executive, as
the department of the Government tasked to enforce the laws, is expected to
faithfully execute the GAA and to spend the budget in accordance with the
provisions of the GAA. The Executive is expected to faithfully implement the
PAPs for which Congress allocated funds, and to limit the expenditures within the
allocations, unless exigencies result to deficiencies for which augmentation is
authorized, subject to the conditions provided by law. The third principle is that in
making the President’s power to augment operative under the GAA, Congress
recognizes the need for flexibility in budget execution. In so doing, Congress
diminishes its own power of the purse, for it delegates a fraction of its power to
the Executive. But Congress does not thereby allow the Executive to override its
authority over the purse as to let the Executive exceed its delegated authority.
And the fourth principle is that savings should be actual. "Actual" denotes
something that is real or substantial, or something that exists presently in fact, as
opposed to something that is merely theoretical, possible, potential or
hypothetical.

The foregoing principles caution us to construe savings strictly against expanding

the scope of the power to augment. It is then indubitable that the power to
augment was to be used only when the purpose for which the funds had been
allocated were already satisfied, or the need for such funds had ceased to exist,
for only then could savings be properly realized. This interpretation prevents the
Executive from unduly transgressing Congress’ power of the purse.

As already mentioned, the implementation of the DAP resulted into the use of
savings pooled by the Executive to finance the PAPs that were not covered in the
GAA, or that did not have proper appropriation covers, as well as to augment
items pertaining to other departments of the Government in clear violation of the
Constitution. To declare the implementation of the DAP unconstitutional without
recognizing that its prior implementation constituted an operative fact that
produced consequences in the real as well as juristic worlds of the Government
and the Nation is to be impractical and unfair. Unless the doctrine is held to apply,
the Executive as the disburser and the offices under it and elsewhere as the
 recipients could be required to undo everything that they had implemented in
good faith under the DAP. That scenario would be enormously burdensome for
the Government. Equity alleviates such burden.

The other side of the coin is that it has been adequately shown as to be beyond
debate that the implementation of the DAP yielded undeniably positive results
that enhanced the economic welfare of the country. To count the positive results
may be impossible, but the visible ones, like public infrastructure, could easily
include roads, bridges, homes for the homeless, hospitals, classrooms and the
like. Not to apply the doctrine of operative fact to the DAP could literally cause
the physical undoing of such worthy results by destruction, and would result in
most undesirable wastefulness.

Nonetheless, as Justice Brion has pointed out during the deliberations, the
doctrine of operative fact does not always apply, and is not always the
consequence of every declaration of constitutional invalidity. It can be invoked
only in situations where the nullification of the effects of what used to be a valid
law would result in inequity and injustice; but where no such result would ensue,
the general rule that an unconstitutional law is totally ineffective should apply.

In that context, as Justice Brion has clarified, the doctrine of operative fact can
apply only to the PAPs that can no longer be undone, and whose beneficiaries
relied in good faith on the validity of the DAP, but cannot apply to the authors,
proponents and implementors of the DAP, unless there are concrete findings of
good faith in their favor by the proper tribunals determining their criminal, civil,
administrative and other liabilities.

14. Lagman v. Medialdea - It could not have been the intention of the framers of the
Constitution that the phrase "in an appropriate proceeding" would refer to a
Petition for Certiorari pursuant to Section 1 or Section 5 of Article VIII. The
standard of review in a petition for certiorari is whether the respondent has
committed any grave abuse of discretion amounting to lack or excess of
jurisdiction in the performance of his or her functions. Thus, it is not the
proper tool to review the sufficiency of the factual basis of the
proclamation or suspension. It must be emphasized that under Section 18,
Article VII, the Court is tasked to review the sufficiency of the factual basis
of the President's exercise of emergency powers. Put differently, if this Court
applies the standard of review used in a petition for certiorari, the same would
emasculate its constitutional task under Section 18, Article VII.
xxx

The Court may strike down the presidential proclamation in an appropriate

proceeding filed by any citizen on the ground of lack of sufficient factual basis.
On the other hand, Congress may revoke the proclamation or suspension, which
revocation shall not be set aside by the President.

In reviewing the sufficiency of the factual basis of the proclamation or suspension,

the Court considers only the information and data available to the
President prior to or at the time of the declaration; it is not allowed to
"undertake an independent investigation beyond the pleadings." On the other
hand, Congress may take into consideration not only data available prior to,
but likewise events supervening the declaration. Unlike the Court which does
not look into the absolute correctness of the factual basis as will be discussed
below, Congress could probe deeper and further; it can delve into the accuracy
of the facts presented before it.

In addition, the Court's review power is passive; it is only initiated by the filing
of a petition "in an appropriate proceeding" by a citizen. On the other hand,
Congress' review mechanism is automatic in the sense that it may be
activated by Congress itself at any time after the proclamation or suspension was
made.

Thus, the power to review by the Court and the power to revoke by Congress are
not only totally different but likewise independent from each other although
concededly, they have the same trajectory, which is, the nullification of the
presidential proclamation. Needless to say, the power of the Court to review can
be exercised independently from the power of revocation of Congress.

xxx

Indeed, the 1987 Constitution gives the "President, as Commander-in- Chief, a

'sequence' of 'graduated power[s]'. From the most to the least benign, these are:
the calling out power, the power to suspend the privilege of the writ of habeas
corpus, and the power to declare martial law."131 It must be stressed, however,
that the graduation refers only to hierarchy based on scope and effect. It does
not in any manner refer to a sequence, arrangement, or order which the
Commander-in-Chief must follow. This so-called "graduation of powers" does not
dictate or restrict the manner by which the President decides which power to
choose.
These extraordinary powers are conferred by the Constitution with the President
as Commander-in-Chief; it therefore necessarily follows that the power and
prerogative to determine whether the situation warrants a mere exercise of the
calling out power; or whether the situation demands suspension of the privilege
of the writ of habeas corpus; or whether it calls for the declaration of martial law,
also lies, at least initially, with the President. The power to choose, initially, which
among these extraordinary powers to wield in a given set of conditions is a
judgment call on the part of the President. As Commander-in-Chief, his powers
are broad enough to include his prerogative to address exigencies or threats that
endanger the government, and the very integrity of the State.132

It is thus beyond doubt that the power of judicial review does not extend to
calibrating the President's decision pertaining to which extraordinary
power to avail given a set of facts or conditions. To do so would be
tantamount to an incursion into the exclusive domain of the Executive and an
infringement on the prerogative that solely, at least initially, lies with the President.

xxx

It cannot be overemphasized that time is paramount in situations necessitating

the proclamation of martial law or suspension of the privilege of the writ of
habeas corpus. It was precisely this time element that prompted the
Constitutional Commission to eliminate the requirement of 1 concurrence of the
Congress in the initial imposition by the President of martial law or suspension of
the privilege of the writ of habeas corpus.

Considering that the proclamation of martial law or suspension of the privilege of

the writ of habeas corpus is now anchored on actual invasion or rebellion and
when public safety requires it, and is no longer under threat or in imminent
danger thereof, there is a necessity and urgency for the President to act quickly
to protect the country.138 The Court, as Congress does, must thus accord the
President the same leeway by not wading into the realm that is reserved
exclusively by the Constitution to the Executive Department.

xxx

Clearly, facial review of Proclamation No. 216 on the grounds of vagueness is

unwarranted. Proclamation No. 216 does not regulate speech, religious freedom,
and other fundamental rights that may be facially challenged.148 What it seeks
to penalize is conduct, not speech.

xxx

The term "other rebel groups" in Proclamation No. 216 is not at all vague
when viewed in the context of the words that accompany it. Verily, the text of
Proclamation No. 216 refers to "other rebel groups" found in Proclamation No. 55,
which it cited by way of reference in its Whereas clauses.

Neither could Proclamation No. 216 be described as vague, and thus void,
on the ground that it has no guidelines specifying its actual operational
parameters within the entire Mindanao region. Besides, operational
guidelines will serve only as mere tools for the implementation of the
proclamation. In Part III, we declared that judicial review covers only the
sufficiency of information or data available to or known to the President prior to,
or at the time of, the declaration or suspension. And, as will be discussed
exhaustively in Part VII, the review will be confined to the proclamation itself and
the Report submitted to Congress.

xxx

Section 18, Article VII itself sets the parameters for determining the sufficiency of
the factual basis for the declaration of martial law and/or the suspension of the
privilege of the writ of habeas corpus, "namely (1) actual invasion or rebellion,
and (2) public safety requires the exercise of such power." Without the
concurrence of the two conditions, the President's declaration of martial law
and/or suspension of the privilege of the writ of habeas corpus must be struck
down.

Rebellion as mentioned in the Constitution could only refer to rebellion as

defined under Article 134 of the RPC. To give it a different definition would not
only create confusion but would also give the President wide latitude of discretion,
which may be abused - a situation that the Constitution seeks to prevent.

For rebellion to exist, the following elements must be present, to wit: "(l) there is a
(a) public uprising and (b) taking arms against the Government; and (2) the
purpose of the uprising or movement is either (a) to remove from the allegiance
to the Government or its laws: (i) the territory of the Philippines or any part
thereof; or (ii) any body of land, naval, or other armed forces; or (b) to deprive the
Chief Executive or Congress, wholly or partially, of any of their powers and
prerogatives.

In determining the existence of rebellion, the President only needs to

convince himself that there is probable cause or evidence showing that more
likely than not a rebellion was committed or is being committed. To require him to
satisfy a higher standard of proof would restrict the exercise of his emergency
powers.

The President deduced from the facts available to him that there was an armed
public uprising, the culpable purpose of which was to remove from the allegiance
to the Philippine Government a portion of its territory and to deprive the Chief
Executive of any of his powers and prerogatives, leading the President to believe
that there was probable cause that the crime of rebellion was and is being
committed and that public safety requires the imposition of martial law and
suspension of the privilege of the writ of habeas corpus.

A review of the aforesaid facts similarly leads the Court to conclude that the
President, in issuing Proclamation No. 216, had sufficient factual bases tending
to show that actual rebellion exists. The President's conclusion, that there was an
armed public uprising, the culpable purpose of which was the removal from the
allegiance of the Philippine Government a portion of its territory and the
deprivation of the President from performing his powers and prerogatives, was
reached after a tactical consideration of the facts. In fine, the President
satisfactorily discharged his burden of proof.

xxx

In fine, it is difficult, if not impossible, to fix the territorial scope of martial law in
direct proportion to the "range" of actual rebellion and public safety simply
because rebellion and public safety have no fixed physical dimensions. Their
transitory and abstract nature defies precise measurements; hence, the
determination of the territorial scope of martial law could only be drawn
from arbitrary, not fixed, variables. The Constitution must have considered
these limitations when it granted the President wide leeway and flexibility in
determining the territorial scope of martial law.

Moreover, the President's duty to maintain peace and public safety is not
limited only to the place where there is actual rebellion; it extends to other
areas where the present hostilities are in danger of spilling over. It is not
 intended merely to prevent the escape of lawless elements from Marawi City, but
also to avoid enemy reinforcements and to cut their supply lines coming from
different parts of Mindanao. Thus, limiting the proclamation and/or suspension to
the place where there is actual rebellion would not only defeat the purpose of
declaring martial law, it will make the exercise thereof ineffective and useless.

15. Belgica v. Ochoa - While the term "Pork Barrel" has been typically associated
with lump-sum, discretionary funds of Members of Congress, the present cases
and the recent controversies on the matter have, however, shown that the term‘s
usage has expanded to include certain funds of the President such as the
Malampaya Funds and the Presidential Social Fund.

xxx

Clearly, these post-enactment measures which govern the areas of project

identification, fund release and fund realignment are not related to functions of
congressional oversight and, hence, allow legislators to intervene and/or assume
duties that properly belong to the sphere of budget execution. Indeed, by virtue of
the foregoing, legislators have been, in one form or another, authorized to
participate in – as Guingona, Jr. puts it – "the various operational aspects of
budgeting," including "the evaluation of work and financial plans for individual
activities" and the "regulation and release of funds" in violation of the separation
of powers principle. The fundamental rule, as categorically articulated in
Abakada, cannot be overstated – from the moment the law becomes
effective, any provision of law that empowers Congress or any of its
members to play any role in the implementation or enforcement of the law
violates the principle of separation of powers and is thus unconstitutional.
That the said authority is treated as merely recommendatory in nature does not
alter its unconstitutional tenor since the prohibition, to repeat, covers any role in
the implementation or enforcement of the law. Towards this end, the Court must
therefore abandon its ruling in Philconsa which sanctioned the conduct of
legislator identification on the guise that the same is merely recommendatory and,
as such, respondents‘ reliance on the same falters altogether.

Besides, it must be pointed out that respondents have nonetheless failed to

substantiate their position that the identification authority of legislators is only of
recommendatory import. Quite the contrary, respondents – through the
statements of the Solicitor General during the Oral Arguments – have admitted
that the identification of the legislator constitutes a mandatory requirement before
 his PDAF can be tapped as a funding source, thereby highlighting the
indispensability of the said act to the entire budget execution process

xxx

Essentially, under the 2013 PDAF Article, individual legislators are given a
personal lump-sum fund from which they are able to dictate (a) how much from
such fund would go to (b) a specific project or beneficiary that they themselves
also determine. As these two (2) acts comprise the exercise of the power of
appropriation as described in Bengzon, and given that the 2013 PDAF Article
authorizes individual legislators to perform the same, undoubtedly, said
legislators have been conferred the power to legislate which the
Constitution does not, however, allow. Thus, keeping with the principle of
non-delegability of legislative power, the Court hereby declares the 2013
PDAF Article, as well as all other forms of Congressional Pork Barrel which
contain the similar legislative identification feature as herein discussed, as
unconstitutional.

xxx

For the President to exercise his item-veto power, it necessarily follows that there
exists a proper "item" which may be the object of the veto. An item, as defined in
the field of appropriations, pertains to "the particulars, the details, the distinct and
severable parts of the appropriation or of the bill."

In particular, the lump-sum amount of ₱24.79 Billion would be treated as a mere

funding source allotted for multiple purposes of spending, i.e., scholarships,
medical missions, assistance to indigents, preservation of historical materials,
construction of roads, flood control, etc. This setup connotes that the
appropriation law leaves the actual amounts and purposes of the
appropriation for further determination and, therefore, does not readily
indicate a discernible item which may be subject to the President‘s power
of item veto.

16. SPARK v. CA – Philippine jurisprudence has developed three (3) tests of judicial
scrutiny to determine the reasonableness of classifications. The strict scrutiny
test applies when a classification either (i) interferes with the exercise of
fundamental rights, including the basic liberties guaranteed under the
Constitution, or (ii) burdens suspect classes. The intermediate scrutiny test
applies when a classification does not involve suspect classes or
fundamental rights, but requires heightened scrutiny, such as in
classifications based on gender and legitimacy. Lastly, the rational basis test
applies to all other subjects not covered by the first two tests.

Considering that the right to travel is a fundamental right in our legal

system guaranteed no less by our Constitution, the strict scrutiny test is
the applicable test.

xxx

The government has the burden of proving that the classification (i) is
necessary to achieve a compelling State interest, and (ii) is the least
restrictive means to protect such interest or the means chosen is narrowly
tailored to accomplish the interest.

xxx

In sum, while the Court finds that all three Curfew Ordinances have passed the
first prong of the strict scrutiny test - that is, that the State has sufficiently shown
a compelling interest to promote juvenile safety and prevent juvenile crime in the
concerned localities, only the Quezon City Ordinance has passed the second
prong of the strict scrutiny test, as it is the only issuance out of the three which
provides for the least restrictive means to achieve this interest. In particular, the
Quezon City Ordinance provides for adequate exceptions that enable minors to
freely exercise their fundamental rights during the prescribed curfew hours, and
therefore, narrowly drawn to achieve the State's purpose. Section 4 (a) of the
said ordinance, i.e., "[t]hose accompanied by their parents or guardian", has also
been construed to include parental permission as a constructive form of
accompaniment and hence, an allowable exception to the curfew measure; the
manner of enforcement, however, is left to the discretion of the local government
unit.

In fine, the Manila and Navotas Ordinances are declared unconstitutional and
thus, null and void, while the Quezon City Ordinance is declared as constitutional
and thus, valid in accordance with this Decision.

For another, the Court has determined that the Manila Ordinance's penal
provisions imposing reprimand and fines/imprisonment on minors conflict with
Section 57-A of RA 9344, as amended. Hence, following the rule that ordinances
 should always conform with the law, these provisions must be struck down as
invalid.

17. Rodriguez v. Macapagal-Arroyo (writ of amparo) - It bears stressing that since

there is no determination of administrative, civil or criminal liability in
amparo and habeas data proceedings, courts can only go as far as
ascertaining responsibility or accountability for the enforced disappearance or
extrajudicial killing.

xxx

Having established the applicability of the doctrine of command responsibility in

amparo proceedings, it must now be resolved whether the president, as
commander-in-chief of the military, can be held responsible or accountable for
extrajudicial killings and enforced disappearances. We rule in the affirmative.

To hold someone liable under the doctrine of command responsibility, the

following elements must obtain:

a. the existence of a superior-subordinate relationship between the accused

as superior and the perpetrator of the crime as his subordinate;

b. the superior knew or had reason to know that the crime was about to be or
had been committed; and

c. the superior failed to take the necessary and reasonable measures to

prevent the criminal acts or punish the perpetrators thereof.

Rodriguez anchors his argument on a general allegation that on the basis of the
"Melo Commission" and the "Alston Report," respondents in G.R. No. 191805
already had knowledge of and information on, and should have known that a
climate of enforced disappearances had been perpetrated on members of the
NPA. Without even attaching, or at the very least, quoting these reports,
Rodriguez contends that the Melo Report points to rogue military men as the
perpetrators. While the Alston Report states that there is a policy allowing
enforced disappearances and pins the blame on the President, we do not
automatically impute responsibility to former President Arroyo for each and every
count of forcible disappearance. Aside from Rodriguez’s general averments,
there is no piece of evidence that could establish her responsibility or
accountability for his abduction. Neither was there even a clear attempt to show
 that she should have known about the violation of his right to life, liberty or
security, or that she had failed to investigate, punish or prevent it.

18. Saluday v. People - Concededly, a bus, a hotel and beach resort, and a
shopping mall are all private property whose owners have every right to
exclude anyone from entering. At the same time, however, because these
private premises are accessible to the public, the State, much like the
owner, can impose non-intrusive security measures and filter those going
in. The only difference in the imposition of security measures by an owner
and the State is, the former emanates from the attributes of ownership
under Article 429 of the Civil Code, while the latter stems from the exercise
of police power for the promotion of public safety. Necessarily, a person's
expectation of privacy is diminished whenever he or she enters private premises
that arc accessible to the public.

In view of the foregoing, the bus inspection conducted by Task Force Davao at a
military checkpoint constitutes a reasonable search. Bus No. 66 of Davao Metro
Shuttle was a vehicle of public transportation where passengers have a reduced
expectation of privacy. Further, SCAA Buco merely lifted petitioner's bag. This
visual and minimally intrusive inspection was even less than the standard x-ray
and physical inspections done at the airport and seaport terminals where
passengers may further be required to open their bags and luggages.
Considering the reasonableness of the bus search, Section 2, Article III of the
Constitution finds no application, thereby precluding the necessity for a warrant.

Doubtless, the constitutional immunity against unreasonable searches and

seizures is a personal right, which may be waived. However, to be valid, the
consent must be voluntary such that it is unequivocal, specific, and intelligently
given, uncontaminated by any duress or coercion. Relevant to this determination
of voluntariness are the following characteristics of the person giving consent and
the environment in which consent is given: (a) the age of the consenting party; (b)
whether he or she was in a public or secluded location; (c) whether he or she
objected to the search or passively looked on; (d) his or her education and
intelligence; (e) the presence of coercive police procedures; (f) the belief that no
incriminating evidence will be found; (g) the nature of the police questioning; (h)
the environment in which the questioning took place; and (i) the possibly
vulnerable subjective state of the person consenting.

In Asuncion v. Court of Appeals, the apprehending officers sought the permission

of petitioner to search the car, to which the latter agreed. According to the Court,
petitioner himself freely gave his consent to the search. In People v. Montilla, the
Court found the accused to have spontaneously performed affirmative acts of
volition by opening the bag without being forced or intimidated to do so, which
acts amounted to a clear waiver of his right. In People v. Omaweng, the police
officers asked the accused if they could see the contents of his bag, to which the
accused said "you can see the contents but those are only clothings." The
policemen then asked if they could open and see it, and the accused answered
"you can see it." The Court held there was a valid consented search.

Similarly in this case, petitioner consented to the baggage inspection done by

SCAA Buco. When SCAA Buco asked if he could open petitioner's bag, petitioner
answered ''yes, just open if' based on petitioner's own testimony. This is clear
consent by petitioner to the search of the contents of his bag.

xxx

To emphasize, a reasonable search, on the one hand, and a warrantless search,

on the other, are mutually exclusive. While both State intrusions are valid even
without a warrant, the underlying reasons for the absence of a warrant are
different. A reasonable search arises from a reduced expectation of privacy,
for which reason Section 2, Article III of the Constitution finds no application.
Examples include searches done at airports, seaports, bus terminals, malls, and
similar public ·places. In contrast, a warrantless search is presumably an
"unreasonable search," but for reasons of practicality, a search warrant
can be dispensed with. Examples include search incidental to a lawful arrest,
search of evidence in plain view, consented search, and extensive search of a
private moving vehicle.

Further, in the conduct of bus searches, the Court lays down the following
guidelines. Prior to entry, passengers and their bags and luggages can be
subjected to a routine inspection akin to airport and seaport security protocol. In
this regard, metal detectors and x-ray scanning machines can be installed at bus
terminals. Passengers can also be frisked. In lieu of electronic scanners,
passengers can be required instead to open their bags and luggages for
inspection, which inspection must be made in the passenger's presence. Should
the passenger object, he or she can validly be refused entry into the terminal.

While in transit, a bus can still be searched by government agents or the security
personnel of the bus owner in the following three instances. First, upon receipt
of information that a passenger carries contraband or illegal articles, the
bus where the passenger is aboard can be stopped en route to allow for an
inspection of the person and his or her effects. This is no different from an
airplane that is forced to land upon receipt of information about the contraband or
illegal articles carried by a passenger onboard. Second, whenever a bus picks
passengers en route, the prospective passenger can be frisked and his or
her bag or luggage be subjected to the same routine inspection by
government agents or private security personnel as though the person
boarded the bus at the terminal. This is because unlike an airplane, a bus is
able to stop and pick passengers along the way, making it possible for these
passengers to evade the routine search at the bus terminal. Third, a bus can be
flagged down at designated military or police checkpoints where State
agents can board the vehicle for a routine inspection of the passengers and their
bags or luggages.

In both situations, the inspection of passengers and their effects prior to entry at
the bus terminal and the search of the bus while in transit must also satisfy the
following conditions to qualify as a valid reasonable search. First, as to the
manner of the search, it must be the least intrusive and must uphold the
dignity of the person or persons being searched, minimizing, if not altogether
eradicating, any cause for public embarrassment, humiliation or ridicule. Second,
neither can the search result from any discriminatory motive such as insidious
profiling, stereotyping and other similar motives. In all instances, the fundamental
rights of vulnerable identities, persons with disabilities, children and other similar
groups should be protected. Third, as to the purpose of the search, it must be
confined to ensuring public safety. Fourth, as to the evidence seized from the
reasonable search, courts must be convinced that precautionary measures were
in place to ensure that no evidence was planted against the accused.

The search of persons in a public place is valid because the safety of

others may be put at risk. Given the present circumstances, the Court takes
judicial notice that public transport buses and their terminals, just like passenger
ships and seaports, are in that category.

Aside from public transport buses, any moving vehicle that similarly accepts
passengers at the terminal and along its route is likewise covered by these
guidelines. Hence, whenever compliant with these guidelines, a routine
inspection at the terminal or of the vehicle itself while in transit constitutes a
reasonable search. Otherwise, the intrusion becomes unreasonable, thereby
triggering the constitutional guarantee under Section 2, Article III of the
Constitution.
 To emphasize, the guidelines do not apply to privately-owned cars. Neither
are they applicable to moving vehicles dedicated for private or personal use, as
in the case of taxis, which are hired by only one or a group of passengers such
that the vehicle can no longer be flagged down by any other person unti1 the
passengers on board alight from the vehicle.

19. Jimenez v. Cabangbang - The issues before us are: (1) whether the publication
in question is a privileged communication; and, if not, (2) whether it is libelous or
not.

The first issue stems from the fact that, at the time of said publication, defendant
was a member of the House of Representatives and Chairman of its Committee
on National Defense, and that pursuant to the Constitution:

The Senators and Members of the House of Representatives shall in all cases
except treason, felony, and breach of the peace, be privileged from arrest during
their attendance at the sessions of the Congress, and in going to and returning
from the same; and for any speech or debate therein, they shall not be
questioned in any other place. (Article VI, Section 15.)

The determination of the first issue depends on whether or not the

aforementioned publication falls within the purview of the phrase "speech or
debate therein" — that is to say, in Congress — used in this provision.

Said expression refers to utterances made by Congressmen in the

performance of their official functions, such as speeches delivered,
statements made, or votes cast in the halls of Congress, while the same is
in session, as well as bills introduced in Congress, whether the same is in
session or not, and other acts performed by Congressmen, either in
Congress or outside the premises housing its offices, in the official
discharge of their duties as members of Congress and of Congressional
Committees duly authorized to perform its functions as such, at the time of
the performance of the acts in question.

The publication involved in this case does not belong to this category. According
to the complaint herein, it was an open letter to the President of the Philippines,
dated November 14, 1958, when Congress presumably was not in session, and
defendant caused said letter to be published in several newspapers of general
circulation in the Philippines, on or about said date. It is obvious that, in thus
causing the communication to be so published, he was not performing his
official duty, either as a member of Congress or as officer or any
Committee thereof. Hence, contrary to the finding made by His Honor, the trial
Judge, said communication is not absolutely privileged.

Was it libelous, insofar as the plaintiffs herein are concerned? Addressed to the
President, the communication began with the following paragraph:

[In the light of the recent developments which however unfortunate had
nevertheless involved the Armed Forces of the Philippines and the unfair attacks
against the duly elected members of Congress of engaging in intriguing and
rumor-mongering, allow me, Your Excellency, to address this open letter to focus
public attention to certain vital information which, under the present
circumstances, I feel it my solemn duty to our people to expose.

It has come to my attention that there have been allegedly three operational
plans under serious study by some ambitious AFP officers, with the aid of some
civilian political strategists.]

Then, it describes the "allegedly three (3) operational plans" referred to in the
second paragraph. The first plan is said to be "an insidious plan or a massive
political build-up" of then Secretary of National Defense, Jesus Vargas, by
propagandizing and glamorizing him in such a way as to "be prepared to become
a candidate for President in 1961". To this end, the "planners" are said to "have
adopted the sales-talk that Secretary Vargas is 'Communists' Public Enemy No.
1 in the Philippines." Moreover, the P4,000,000.00 "intelligence and
psychological warfare funds" of the Department of National Defense, and the
"Peace and Amelioration Fund" — the letter says — are "available to adequately
finance a political campaign"

We are satisfied that the letter in question is not sufficient to support plaintiffs'
action for damages. Although the letter says that plaintiffs are under the control
of the unnamed persons therein alluded to as "planners", and that, having been
handpicked by Secretary Vargas and Gen. Arellano, plaintiffs "probably belong to
the Vargas-Arellano clique", it should be noted that defendant, likewise,
added that "it is of course possible" that plaintiffs "are unwitting tools of
the plan of which they may have absolutely no knowledge". In other words,
the very document upon which plaintiffs' action is based explicitly
indicates that they might be absolutely unaware of the alleged operational
plans, and that they may be merely unwitting tools of the planners. We do
not think that this statement is derogatory to the plaintiffs, to the point of entitling
them to recover damages, considering that they are officers of our Armed Forces,
that as such they are by law, under the control of the Secretary of National
Defense and the Chief of Staff, and that the letter in question seems to suggest
that the group therein described as "planners" include these two (2) high ranking
officers.

It is true that the complaint alleges that the open letter in question was written by
the defendant, knowing that it is false and with the intent to impeach plaintiffs'
reputation, to expose them to public hatred, contempt, dishonor and ridicule, and
to alienate them from their associates, but these allegations are mere
conclusions which are inconsistent with the contents of said letter and can not
prevail over the same, it being the very basis of the complaint. Then too, when
plaintiffs allege in their complaint that said communication is false, they could not
have possibly meant that they were aware of the alleged plan to stage a coup
d'etat or that they were knowingly tools of the "planners". Again, the
aforementioned passage in the defendant's letter clearly implies that plaintiffs
were not among the "planners" of said coup d'etat, for, otherwise, they could not
be "tools", much less, unwittingly on their part, of said "planners".