January 16 – July 28, 2017 August 6, 2017 April 20, 2018

POLITICAL LAW

THE CONSTITUTION

The Doctrine of Constitutional Supremacy

Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the
Constitution, that law or contract, whether promulgated by the legislative or by the executive
branch or entered into by private persons for private purposes, is null and void and without any
force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law
of the nation, it is deemed written in every statute and contract. (Manila Prince Hotel v. GSIS,
267 SCRA 408 [1997] [Bellosillo])

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

A provision which lays down a general principle, such as those found in Article II of the 1987
Constitution, is usually not self-executing. But a provision which is complete in itself and
becomes operative without the aid of supplementary or enabling legislation, or that which
supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is
self-executing. Thus a constitutional provision is self-executing if the nature and extent of the
right conferred and the liability imposed are fixed by the Constitution itself, so that they can be
determined by an examination and construction of its terms, and there is no language
indicating that the subject is referred to the legislature for action. (Manila Prince Hotel v. GSIS,
267 SCRA 408 [1997] [Bellosillo])

Provisions of the Constitution are presumed to be Self-executing

Unless it is expressly provided that a legislative act is necessary to enforce a constitutional
mandate, the presumption now is that all provisions are self-executing. If the constitutional
provisions are treated as requiring legislation instead of self-executing, the legislature would
have the power to ignore and practically nullify the mandate of the fundamental law. This can
be cataclysmic. (Manila Prince Hotel v. GSIS, 267 SCRA 408 [1997] [Bellosillo])

AMENDMENTS OR REVISION (Article XVII, 1987 Constitution)

Ways of Proposing Amendments or Revision

First: Congress may directly propose amendments or revision by three-fourths (3/4) vote of all
its members. In such a case, Congress will not be acting as a legislative body but rather, as a
constituent assembly – a non-legislative function of Congress.

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

and distinct from that of the Congress itself whose members shall be elected by the people of
their respective districts.

Third: through People’s Initiative.

People’s initiative on the Constitution is done through a petition, but the petition will have to
be signed by at least twelve (12) per cent of the total number of registered voters provided that
in each legislative district, at least three (3) per cent of the registered voters therein shall sign
the petition.

The provisions of R.A. No 6735 (The Initiative and Referendum Law) dealing with initiative on
the constitution implements people’s initiative on the Constitution under Section 2, Article XVII,
1987 Constitution.
Ratification

Any proposed amendment or revision of the Constitution will have to be submitted to the
people in a plebiscite to be ratified by majority of the voters.

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

A legislative or executive act that is declared void for being unconstitutional cannot give rise to
any right or obligation. (Commissioner of Internal Revenue v. San Roque Power Corporation,
G.R. No. 187485, October 8, 2013 cited in Maria Carolina P. Araullo, et al. v. Benigno Simeon C.
Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc [Bersamin])

The Operative Fact Doctrine

The doctrine of operative fact recognizes the existence of the law or executive act prior to the
determination of its unconstitutionality as an operative fact that produced consequences that
cannot always be erased, ignored or disregarded. In short, it nullifies the void law or executive
act but sustains its effects. It provides an exception to the general rule that a void or
unconstitutional law produces no effect. But its use must be subjected to great scrutiny and
circumspection, and it cannot be invoked to validate an unconstitutional law or executive act,
but is resorted to only as a matter of equity and fair play. It applies only to cases where
extraordinary circumstances exist, and only when the extraordinary circumstances have met
the stringent conditions that will permit its application. (Maria Carolina P. Araullo, et al. v.
Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc
[Bersamin])

Operative Fact Doctrine Applied in the DAP (Disbursement Acceleration Program) Case
We find the doctrine of operative fact applicable to the adoption and implementation of the
DAP. Its application to the DAP proceeds from equity and fair play. The consequences resulting
from the DAP and its related issuances could not be ignored or could no longer be undone.

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

The other side of the coin is that it has been adequately shown as to be beyond debate that the
implementation of the DAP yielded undeniably positive results that enhanced the economic
welfare of the country. To count the positive results may be impossible, but the visible ones,
like public infrastructure, could easily include roads, bridges, homes for the homeless, hospitals,
classrooms and the like. Not to apply the doctrine of operative fact to the DAP could literally
cause the physical undoing of such worthy results by destruction, and would result in most
undesirable wastefulness. (Maria Carolina P. Araullo, et al. v. Benigno Simeon C. Aquino III, et
al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc [Bersamin])

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

The term executive act is broad enough to include any and all acts of the Executive, including
those that are quasi-legislative and quasi-judicial in nature.

In Commissioner of Internal Revenue v. San Roque Power Corporation (G.R. No. 187485,
October 8, 2013), the Court likewise declared that “for the operative act doctrine to apply,
there must be a ‘legislative or executive measure,’ meaning a law or executive issuance.” Thus,
the Court opined there that the operative fact doctrine did not apply to a mere administrative
practice of the Bureau of Internal Revenue, x x x.

It is clear from the foregoing that the adoption and the implementation of the DAP and its
related issuances were executive acts. The DAP itself, as a policy, transcended a merely
administrative practice especially after the Executive, through the DBM, implemented it by
issuing various memoranda and circulars. (Maria Carolina P. Araullo, et al. v.

Benigno Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc
[Bersamin])

The Presumption of Good Faith Stands in the DAP Case despite the Obiter Pronouncement

The quoted text of paragraphs 3 and 4 shows that the Court has neither thrown out the
presumption of good faith nor imputed bad faith to the authors, proponents and implementers
of the DAP. The contrary is true, because the Court has still presumed their good faith by
pointing out that “the doctrine of operative fact x x x cannot apply to the authors, proponents
and implementers of the DAP, unless there are concrete findings of good faith in their favor by
the proper tribunals determining their criminal, civil, administrative and other liabilities.” X x x

It is equally important to stress that the ascertainment of good faith, or the lack of it, and the
determination of whether or not due diligence and prudence were exercised, are questions of
fact. The want of good faith is thus better determined by tribunals other than this Court, which
is not a trier of facts.

For sure, the Court cannot jettison the presumption of good faith in this or in any other case.
The presumption is a matter of law. It has had a long history. Indeed, good faith has long been
established as a legal principle even in the heydays of the Roman Empire. X x x
Relevantly the authors, proponents and implementers of the DAP, being public officers, further
enjoy the presumption of regularity in the performance of their functions. This presumption is
necessary because they are clothed with some part of the sovereignty of the State, and because
they act in the interest of the public as required by law. However, the presumption may be
disputed.

At any rate, the Court has agreed during its deliberations to extend to the proponents and the
implementers of the DAP the benefit of the doctrine of operative fact. This is because they had
nothing to do at all with the adoption of the invalid acts and practices. (Maria Carolina P.
Araullo, et al. v. Benigno Simeon C. Aquino III, et al., G.R. No. 209287, February 3, 2015, En Banc
[Bersamin], Resolution of the Motion for Reconsideration)

THE NATIONAL TERRITORY

The national territory comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea,
the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around,
between, and connecting the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines. (Article I, 1987 Constitution)

The Maritime Baselines Law (R.A. No. 9522)

In 1961, Congress passed Republic Act No. 3046 (RA 3046) demarcating the maritime baselines
of the Philippines as an archipelagic State. This law followed the framing of the Convention on
the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I), codifying, among others, the
sovereign right of States parties over their “territorial sea,” the breadth of which, however, was
left undetermined. Attempts to fill this void during the second round of negotiations in Geneva
in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for nearly
five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting
typographical errors and reserving the drawing of baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522. The change was prompted by
the need to make RA 3046 compliant with the terms of the United Nations Convention on the
Law of the Sea (UNCLOS III), which the Philippines ratified on 27 February 1984. Among others,
UNCLOS III prescribes the water-land ratio, length, and contour of baselines of archipelagic
states like the Philippines and sets the deadline for the filing of application for the extended
continental shelf. Complying with these requirements, RA 9522 shortened one baseline,
optimized the location of some basepoints around the Philippine archipelago and classified
adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as
“regimes of islands” whose islands generate their own applicable maritime zones. (Professor
Merlin M. Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R. No. 187167, 655 SCRA 476,
August 16, 2011, En Banc [Carpio])

RA 9522 is not unconstitutional. It is a statutory tool to demarcate the country’s maritime zones
and continental shelf under UNCLOS III, not to delineate Philippine territory.UNCLOS III has
nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating,
among others, sea-use rights over maritime zones (i,e., the territorial waters [12 nautical miles
from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic
zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III delimits.
UNCLOS III was the culmination of decades- long negotiations among United Nations members
to codify norms regulating the conduct of States in the world’s oceans and submarine areas,
recognizing coastal and archipelagic States’ graduated authority over a limited span of waters
and submarine lands along their coasts.On the other hand, baselines laws such as RA 9522 are
enacted by UNCLOS III States parties to work-out specific basepoints along their coasts from
which baselines are drawn, either straight or contoured, to serve as geographic starting points
to measure the breadth of the maritime zones and continental shelf.

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to
delimit with precision the extent of their maritime zones and continental shelves. In turn, this
gives notice to the rest of the international community of the scope of the maritime space and
submarine areas within which States parties exercise treaty-based rights, namely: the exercise
of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal,
immigration and sanitation laws in the contiguous zone (Article 33), and the right to exploit the
living and non-living resources in the exclusive economic zone (Article 56) and continental shelf
(Article 77). (Professor Merlin M. Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R. No.
187167, 655 SCRA 476, August 16, 2011, En Banc [Carpio])UNCLOS III and its ancillary baselines
laws play no role in the acquisition, enlargement or diminution of territory. Under traditional
international law typology, states acquire (or conversely, lose) territory through occupation,
accretion, cession and prescription, not by executing multilateral treaties on the regulation of
sea-use rights or enacting statutes to comply with the treaty’s terms to delimit maritime zones
and continental shelves. Territorial claims to land features are outside UNCLOS IIII, and are
instead governed by the rules on general international law. (Professor Merlin M. Magallona, et
al. v. Hon. Eduardo Ermita, et al., G.R. No. 187167, 655 SCRA 476, August 16, 2011, En Banc
[Carpio])

RA 9522’s use of the framework of Regime of Islands to determine the maritime zones of the
Kalayaan Island Group (KIG) and the Scarborough Shoal is not inconsistent with the Philippines’
claim of sovereignty over these areas.

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522
merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA
9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and
thus comply with UNCLOS III’s limitation on the maximum length of baselines). Under RA 3046,
as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn around
the Philippine archipelago. This undeniable cartographic fact takes the wind out of petitioners’
argument branding RA 9522 as a statutory renunciation of the Philippines’ claim over the KIG,
assuming that baselines are relevant for this purpose.

Petitioners’ assertion of loss of “about 15,000 square nautical miles of territorial waters” under
RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing
the location of basepoints, increased the Philippines’ total maritime space (covering its internal
waters, territorial sea and exclusive economic zone) by 154,216 square nautical miles x x x.

Further, petitioners’ argument that the KIG now lies outside Philippine territory because the
baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of
the law commits to text the Philippines’ continued claim of sovereignty and jurisdiction over
the KIG and the Scarborough Shoal x x x
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a
breach of two provisions of UNCLOS III. X x x

Although the Philippines has consistently claimed sovereignty over the KIG and the
Scarborough Shoal for several decades, these outlying areas are located at an appreciable
distance from the nearest shoreline of the Philippine archipelago, such that any straight
baseline loped around them from the nearest basepoint will inevitably “depart to an
appreciable extent from the general configuration of our archipelago.”

Xxx

[T]he amendment of the baselines law was necessary to enable the Philippines to draw the
outer limits of its maritime zones including the extended continental shelf provided by Article
47 of [UNCLOS III].

Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough Shoal,
Congress’ decision to classify the KIG and the Scarborough Shoal as “’Regime[s] of Islands’
under the Republic of the Philippines consistent with Article 121” of UNCLOS III manifests the
Philippine State’s responsible observance of its pacta sunt servanda obligation under UNCLOS
III. Under Article 121 of UNCLOS III, any “naturally formed area of land, surrounded by water,
which is above water at high tide,” such as portions of the KIG, qualifies under the category of
“regime of islands,” whose islands generate their own applicable maritime zones. (Professor
Merlin M. Magallona, et al. v. Hon. Eduardo Ermita, et al., G.R. No. 187167, 655 SCRA 476,
August 16, 2011, En Banc [Carpio])

THE DOCTRINE OF STATE IMMUNITY FROM SUIT

The State may not be sued without its consent. (Section 3, Article XVI, 1987 Constitution)
Discuss the basis of the Doctrine of State Immunity from Suit

The basic postulate enshrined in the Constitution that “[t]he State may not be sued without its
consent,” reflects nothing less than a recognition of the sovereign character of the State and an
express affirmation of the unwritten rule effectively insulating it from the jurisdiction of courts.
It is based on the very essence of sovereignty. As has been aptly observed by Justice Holmes, a
sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on
the logical and practical ground that there can be no legal right as against the authority that
makes the law on which the right depends. True, the doctrine, not too infrequently, is derisively
called “the royal prerogative of dishonesty” because it grants the state the prerogative to
defeat any legitimate claim against it by simply invoking its non-suability. We have had occasion
to explain in its defense, however, that a continued adherence to the doctrine of non-suability
cannot be deplored, for the loss of governmental efficiency and the obstacle to the
performance of its multifarious functions would be far greater in severity than the
inconvenience that may be caused private parties, if such fundamental principle is to be
abandoned and the availability of judicial remedy is not to be accordingly restricted.
(Department of Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993 [Vitug])

Is the rule absolute, i.e., that the State may not be sued at all? How may consent of the State to
be sued given?

The rule, in any case, is not really absolute for it does not say that the state may not be sued
under any circumstances. On the contrary x x x the doctrine only conveys, “the state may not
be sued without its consent;” its clear import then is that the State may at times be sued. The
State’s consent may be given either expressly or impliedly. Express consent may be made
through a general law (i.e., Commonwealth Act No. 327, as amended by Presidential Decree No.
1445 [Sections 49-50], which requires that all money claims against the government must first
be filed with the Commission on Audit which must act upon it within sixty days. Rejection of the
claim will authorize the claimant to elevate the matter to the Supreme Court on certiorari and,
in effect, sue the State thereby) or a special law. In this jurisdiction, the general law waiving the
immunity of the state from suit is found in Act No. 3083, where the Philippine government
“consents and submits to be sued upon any money claim involving liability arising from
contract, express or implied, which could serve as a basis of civil action between the private
parties.” Implied consent, on the other hand, is conceded when the State itself commences
litigation, thus opening itself to a counterclaim or when it enters into a contract. In this
situation, the government is deemed to have descended to the level of the other contracting
party and to have divested itself of its sovereign immunity. (Department of Agriculture v. NLRC,
227 SCRA 693, Nov. 11, 1993 [Vitug])

The rule that when the State enters into a contract with a private individual or entity, it is
deemed to have descended to the level of that private individual or entity and, therefore, is
deemed to have tacitly given its consent to be sued, is that without any qualification? What is
the Restrictive Doctrine of State Immunity from Suit?

This rule is not without qualification. Not all contracts entered into by the government operate
as a waiver of its non-suability; distinction must still be made between one which is executed in
the exercise of its sovereign function and another which is done in its proprietary capacity.

In United States of America v. Ruiz (136 SCRA 487), where the questioned transaction dealt with
the improvements on the wharves in the naval installation at Subic Bay, we held:

“The traditional rule of immunity exempts a State from being sued in the courts of another
State without its consent or waiver. This rule is a necessary consequence of the principle of
independence and equality of States. However, the rules of International Law are not petrified;
they are constantly developing and evolving. And because the activities of states have
multiplied, it has been necessary to distinguish them – between sovereign and governmental
acts (jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is
that State immunity now extends only to acts jure imperii. The restrictive application of State
immunity is now the rule in the United States, the United Kingdom and other states in Western
Europe.

Xxx

The restrictive application of State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial activities or economic affairs.
Stated differently, a State may be said to have descended to the level of an individual and can
thus be deemed to have tacitly given its consent to be sued only when it enters into business
contracts. It does not apply where the contracts relate to the exercise of its sovereign functions.
In this case the projects are an integral part of the naval base which is devoted to the defense
of both the United States and the Philippines, indisputably a function of the government of the
highest order; they are not utilized for nor dedicated to commercial or business purposes.”
(Department of Agriculture v. NLRC, 227 SCRA 693, Nov. 11, 1993 [Vitug])

When is a suit against a public official deemed to be a suit against the State? Discuss.

The doctrine of state immunity from suit applies to complaints filed against public officials for
acts done in the performance of their duties. The rule is that the suit must be regarded as one
against the State where the satisfaction of the judgment against the public official concerned
will require the State itself to perform a positive act, such as appropriation of the amount
necessary to pay the damages awarded to the plaintiff.

The rule does not apply where the public official is charged in his official capacity for acts that
are unlawful and injurious to the rights of others. Public officials are not exempt, in their
personal capacity, from liability arising from acts committed in bad faith.

Neither does it apply where the public official is clearly being sued not in his official capacity but
in his personal capacity, although the acts complained of may have been committed while he
occupied a public position. (Amado J. Lansang v. CA, G.R. No. 102667, Feb. 23, 2000, 2nd Div.
[Quisumbing])

As early as 1954, this Court has pronounced that an officer cannot shelter himself by the plea
that he is a public agent acting under the color of his office when his acts are wholly without
authority. Until recently in 1991 (Chavez v. Sandiganbayan, 193 SCRA 282 [1991]), this doctrine
still found application, this Court saying that immunity from suit cannot institutionalize
irresponsibility and non-accountability nor grant a privileged status not claimed by any other
official of the Republic. (Republic v. Sandoval, 220 SCRA 124, March 19, 1993, En Banc [Campos,
Jr.])
Arigo v. Swift, 735 SCRA 102 (2014)

A petition filed for the issuance of a Writ of Kalikasan directed against the Commander of the
US Pacific Fleet for the destruction of our corrals in Tubbataha reef (a protected area system
under the NIPAS [National Integrated Protected Areas System] and a UN declared World
Heritage Site because of its rich marine bio-diversity) in the Sulu Sea caused by the USS
Guardian, an American naval vessel when it ran aground there in the course of its voyage to
Indonesia from its base in Okinawa, Japan, will not prosper for lack of jurisdiction following the
doctrine of sovereign equality of all States. In effect, the suit is a suit against the US government
and, therefore, should be dismissed.

The waiver of immunity from suit of the US under the Visiting Forces Agreement (VFA) applies
only to waiver from criminal jurisdiction, so that if an American soldier commits an offense in
the Philippines, he shall be tried by Philippine courts under Philippine laws. The waiver did not
include the special civil action for the issuance of a Writ of Kalikasan.

Also, the demand for compensation for the destruction of our corrals in Tubbataha reef has
been rendered moot and academic. After all, the US already signified its intention to pay
damages, as expressed by the US embassy officials in the Philippines, the only request is that a
panel of experts composed of scientists be constituted to assess the total damage caused to our
corrals there, which request is not unreasonable.

Government Funds may not be subject to Garnishment

The funds of the UP are government funds that are public in character. They include the income
accruing from the use of real property ceded to the UP that may be spent only for the
attainment of its institutional objectives. Hence, the funds subject of this action could not be
validly made the subject of writ of execution or garnishment. The adverse judgment rendered
against the UP in a suit to which it had impliedly consented was not immediately enforceable by
execution against the UP, because suability of the State did not necessarily mean its liability.
(UP v. Dizon, G.R. No. 171182, 679 SCRA 54, 23 August 2012, 1st Div. [Bersamin])
The Doctrine should not be used to perpetrate an Injustice on a Citizen

To our mind, it would be the apex of injustice and highly inequitable for us to defeat
petitioners-contractors’ right to be duly compensated for actual work performed and services
rendered, where both the government and the public have, for years, received and accepted
benefits from said housing project and reaped the fruits of petitioners-contractors’ honest toil
and labor.

Incidentally, respondent likewise argues that the State may not be sued in the instant case,
invoking the constitutional doctrine of Non-suability of the State, otherwise known as the Royal
Prerogative of Dishonesty.

Respondent’s argument is misplaced inasmuch as the principle of State immunity finds no

application in the case before us.

Under these circumstances, respondent may not validly invoke the Royal Prerogative of
Dishonesty and conveniently hide under the State’s cloak of invincibility against suit,
considering that this principle yields to certain settled exceptions. True enough, the rule, in any
case, is not absolute for it does not say that the state may not be sued under any
circumstances.

Thus, in Amigable v. Cuenca, this Court, in effect, shred the protective shroud which shields the
state from suit, reiterating our decree in the landmark case of Ministerio v. CFI of Cebu that
“the doctrine of governmental immunity from suit cannot serve as an instrument for
perpetrating an injustice on a citizen.” It is just as important, if not more so, that there be
fidelity to legal norms on the part of officialdom if the rule of law were to be maintained.

Although the Amigable and Ministerio cases generously tackled the issue of the State’s
immunity from suit vis a vis the payment of just compensation for expropriated property, this
Court nonetheless finds the doctrine enunciated in the aforementioned cases applicable to the
instant controversy, considering that the ends of justice would be subverted if we were to
uphold, in this particular instance, the State’s immunity from suit.

To be sure, this Court – as the staunch guardian of the citizens’ rights and welfare – cannot
sanction an injustice so patent on its face, and allow itself to be an instrument in the
perpetration thereof. Justice and equity sternly demand that the State’s cloak of invincibility
against suit be shred in this particular instance, and that petitioners-contractors be duly
compensated – on the basis of quantum meruit – for construction done on the public works
housing project. (EPG Construction Co. v. Vigilar, 354 SCRA 566, Mar.16, 2001, 2nd Div. [Buena])

FUNDAMENTAL PRINCIPLES AND STATE POLICIES

(Article II, 1987 Constitution)

The Philippines Adherence to the Doctrine of Incorporation

Section 2, Article II of the 1987 Constitution provides that the Philippines adopts the generally
accepted principles of international as part of the laws of the land. This provision is an
affirmation of our adherence to the doctrine of incorporation in international law.

Under the 1987 Constitution, an international law can become part of the sphere of domestic
law either by transformation or incorporation. The transformation method requires that an
international law be transformed into a domestic law through a constitutional mechanism such
as local legislation. On the other hand, generally accepted principles of international law, by
virtue of the incorporation clause of the Constitution, form part of the laws of the land even if
they do not derive from treaty stipulations. Generally accepted principles of international law
include international customs as evidence of a general practice accepted as law, and general
principles of law recognized by civilized nations. International customary rules are accepted as
binding as a result from the combination of two elements: the established, widespread, and
consistent practice on the part of States; and a psychological element known as the opinion
juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief
that the practice in question is rendered obligatory by the existence of a rule of law requiring it.
“General principles of law recognized by civilized nations” are principles “established by a
process of reasoning” or judicial logic, based on principles which are “basic to legal systems
generally,” such as “general principles of equity, i.e., the general principles of fairness and
justice,” and the “general principles against discrimination” which is embodied in the “Universal
Declaration of Human Rights, the International Covenant on Economic, Social and Cultural
Rights, the International Convention on the Elimination of All Forms of Racial Discrimination,
the Convention Against Discrimination in Education, the Convention (No. 111) Concerning
Discrimination in Respect of Employment and Occupation.” These are the same core principles
which underlie the Philippine Constitution itself, and embodied in the due process and equal
protection clauses

of the Bill of Rights. (Mary Grace Natividad S. Poe-Llamanzares v. COMELEC, G R. No. 221697,
March 8, 2016, En Banc [Perez])

The Right to Self-Determination of Peoples

This right to self-determination of peoples has gone beyond mere treaty or convention; in fact,
it has now been elevated into the status of a generally accepted principle of international law.
(The Province of North Cotabato v. The Government of the Republic of the Philippines Peace
Panel, G.R. No. 183591, 568 SCRA 402, October 14, 2008, En Banc [Carpio-Morales])

The Yogyakarta Principles: Have they evolved into a generally accepted principle of
international law and, therefore, binding upon the Philippines?

We refer now to the petitioner’s invocation of the Yogyakarta Principles (the Application of
International Human Rights Law In Relation to Sexual Orientation and Gender Identity), which
petitioner declares to reflect binding principles of international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms
that are obligatory on the Philippines. There are declarations and obligations outlined in said
Principles which are not reflective of the current state of international law, and do not find
basis in any of the sources of international law enumerated under Article 38(1) of the Statute of
the International Court of Justice. X x x

Xxx

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration
formulated by various international law professors, are – at best – de lege refenda – and do not
constitute binding obligations on the Philippines. X x x (Ang LADLAD LGBT Party v. COMELEC,
G.R. No. 190582, 618 SCRA 32, April 8, 2010, En Banc [Del Castillo])

The Filipino First Policy

In the grant of rights, privileges and concessions covering the national economy and patrimony,
the State shall give preference to qualified Filipinos (Sec. 10, 2nd par., Art. XII of the
Constitution)

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

In this case, the SC ruled that this provision is self-executing. It was also in this case where the
Court clarified that the rule now is that all provisions of the Constitution are presumed to be
self-executing, rather than non-self-executing. Elaborating, the Court explained that if a
contrary presumption is adopted, the whole Constitution shall remain dormant and be captives
of Congress, which could have disastrous consequences.

Also, in this case the SC held that “patrimony” simply means “heritage.” Thus, when we speak
of “national patrimony,” we refer not only to the natural resources of the Philippines but as
well as the cultural heritage of the Filipino people.
The Right to Life of the Unborn from Conception

The Philippine national population program has always been grounded on two cornerstone
principles: “principle of no-abortion” and the “principle of non-coercion.” These principles are
not merely grounded on administrative policy, but rather, originates from the constitutional
protection which expressly provided to afford protection to life and guarantee religious
freedom.

When Does Life Begin?

Majority of Members of the Court are of the position that the question of when life begins is a
scientific and medical issue that should not be decided, at this stage, without proper hearing
and evidence. During the deliberations, however, it was agreed upon that the individual
members of the Court could express their own views on this matter.

In this regard, the ponente, is of the strong view that life begins at fertilization.

Xxx

Textually, the Constitution affords protection to the unborn from conception. This is
undisputable because before conception, there is no unborn to speak of. For said reason, it is
no surprise that the Constitution is mute as to any proscription prior to conception or when life
begins. The problem has arisen because, amazingly, there are quarters who have conveniently
disregarded the scientific fact that conception is reckoned from fertilization. They are waving
the view that life begins at implantation. Hence, the issue of when life begins.

Xxx
In conformity with the above principle, the traditional meaning of the word “conception”
which, as described and defined by all reliable and reputable sources, means that life begins at
fertilization.

Xxx

From the deliberations above-quoted, it is apparent that the framers of the Constitution
emphasized that the State shall provide equal protection to both the mother and the unborn
child from the earliest opportunity of life, that is, upon fertilization or upon the union of the
male sperm and the female ovum. X x x

Equally apparent, however, is that the Framers of the Constitution did not intend to ban all
contraceptives for being unconstitutional. From the discussions above, contraceptives that kill
or destroy the fertilized ovum should be deemed an abortive and thus prohibited. Conversely,
contraceptives that actually prevent the union of the male sperm and the female ovum, and
those that similarly take action prior to fertilization should be deemed non-abortive, and thus,
constitutionally permissible. (James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et al., GR
No. 204819, April 8, 2014, En Banc [Mendoza])

The Right to Health and to a Balanced and Healthful Ecology in Accord with the Rhythm and
Harmony of Nature

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

Southeast Asia (Philippines), et al., G.R. No. 209271, December 8, 2015, En Banc (Villarama, Jr.)

The Precautionary Principle

The precautionary principle originated in Germany in the 1960s, expressing the normative idea
that governments are obligated to “foresee and forestall” harm to the environment. In the
following decades, the precautionary principle has served as the normative guideline for
policymaking by many national governments. The Rio Declaration on Environment and
Development, the outcome of the 1992 United Nations Conference on Environment and
Development held in Rio de Janeiro, defines the rights of the people to be involved in the
development of their economies, and the responsibilities of human beings to safeguard the
common environment. It states that the long term economic progress is only ensured if it s
linked with the protection of the environment. For the first time, the precautionary approach
was codified under Principle 15, which reads:

In order to protect the environment, the precautionary approach shall be widely applied by
States according to their capabilities. Where there are threats of serious or irreversible damage,
lack of full scientific certainty shall not be used as a reason for postponing cost-effective
measures to prevent environmental degradation.

Principle 15 codified for the first time at the global level the precautionary approach, which
indicates that lack of scientific certainty is no reason to postpone action to avoid potentially
serious or irreversible harm to the environment. It has been incorporated in various
international legal instruments. The Cartagena Protocol on Biosafety to the Convention on
Biological Diversity, finalized and adopted in Montreal on January 29, 2000, establishes an
international regime primarily aimed at regulating trade in GMOs intended for release into the
environment, in accordance with Principle 15 of the Rio Declaration on Environment and
Development. X x x

The precautionary principle applies when the following conditions are met:

1. There exist considerable scientific uncertainties; 2. There exist scenarios (or models) of
possible harm that are scientifically

reasonable (that is based on some scientifically plausible reasoning); 3. Uncertainties cannot be

reduced in the short term without at the same time increasing ignorance of other relevant
factors by higher levels of abstraction and idealization;
4. The potential harm is sufficiently serious or even irreversible for present or

future generations or otherwise morally unacceptable; 5. There is a need to act now, since
effective counteraction later will be made

significantly more difficult or costly at any later time.

The Rules (of Procedure for Environmental Cases) likewise incorporated the principle in Part V,
Rule 20, which states:

PRECAUTIONARY PRINCIPLE

Sec. 1. Applicability. – When there is a lack of full scientific certainty in establishing a causal link
between human activity and environmental effect, the court shall apply the precautionary
principle in resolving the case before it.

The constitutional right of the people to a balanced and healthful ecology shall be given the
benefit of the doubt.

SEC. 2. Standards for application. – In applying the precautionary principle, the following
factors, among others, may be considered: (1) threats to human life or health; (2) inequity to
present or future generations; or (3) prejudice to the environment without legal consideration
of the environmental rights of those affected.

Under this Rule, the precautionary principle finds direct application in the evaluation of
evidence in cases before the courts. The precautionary principle bridges the gap in cases where
scientific certainty in factual findings cannot be achieved. By applying the precautionary
principle, the court may construe a set of facts as warranting either judicial action or inaction,
with the goal of preserving and protecting the environment. This may be further evinced from
the second paragraph where bias is created in favor of the constitutional right of the people to
a balanced and healthful ecology. In effect, the precautionary principle shifts the burden of
evidence of harm away from those likely to suffer harm and onto those desiring to change the
status quo. An application of the precautionary principle to the rules on evidence will enable
courts to tackle future environmental problems before ironclad scientific consensus emerges.
(Annotation to the Rules of Procedure for Environmental Cases)

For purposes of evidence, the precautionary principle should be treated as a principle of last
resort, where application of the regular Rules of Evidence would cause in an inequitable result
for the environmental plaintiff – (a) settings in which the risks of harm are uncertain; (b)
settings in which harm might be irreversible and what is lost is irreplaceable; and (c) settings in
which the harm that might result would be serious. When these features – uncertainty, the
possibility of irreversible harm, and the possibility of serious harm – coincide, the case for the
precautionary principle is strongest. When in doubt, cases must be resolved in favor of the
constitutional right to a balanced and healthful ecology. Parenthetically, judicial adjudication is
one of the strongest fora in which the precautionary principle may find applicability.
(International Service for the Acquisition of Agri-biotech

Applications, Inc. v. Greenpeace Southeast Asia [Philippines], et al., GR No. 209271, December
8, 2015, En Banc [Villarama])

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

Assessing the evidence on record, as well as the current state of GMO research worldwide, the
Court finds all the three conditions present in this case – uncertainty, the possibility of
irreversible harm and the possibility of serious harm.

Xxx

Alongside the aforesaid uncertainties, the non-implementation of the NBF (National Biosafety
Framework) in the crucial stages of risk assessment and public consultation, including the
determination of the applicability of the EIS (Environmental Impact Statement) requirements to
GMO field testing, are compelling reasons for the application of the precautionary principle.
There exists a preponderance of evidence that the release of GMOs into the environment
threatens to damage our ecosystems and not just the field trial sites, and eventually the health
of our people once the Bt eggplant are consumed as food. Adopting the precautionary
approach, the Court rules that the principles of the NBF need to be operationalized first by the
coordinated actions of the concerned departments and agencies before allowing the release
into the environment of genetically modified eggplant. The more prudent course is to
immediately enjoin the Bt talong field trials and approval for its propagation or
commercialization until the said government offices shall have performed their respective
mandates to implement the NBF.

We have found the experience of India in the Bt brinjal field trials – for which an indefinite
moratorium was recommended by a Supreme Court-appointed committee till the government
fixes regulatory and safety aspects – as relevant because majority of Filipino farmers are also
small-scale farmers. Further, the precautionary approach entailed inputs from all stakeholders,
including the marginalized farmers, not just the scientific community. This proceeds from the
realization that acceptance of uncertainty is not only a scientific issue, but is related to public
policy and involves an ethical dimension. For scientific research alone will not resolve all the
problems, but participation of different stakeholders from scientists to industry, NGOs, farmers
and the public will provide a needed variety of perspective foci, and knowledge. (International
Service for the Acquisition of Agri- biotech Applications, Inc. v. Greenpeace Southeast Asia
(Philippines), et al., GR No. 209271, December 8, 2015, En Banc [Villarama])

Field Trial Proposal of Bt (Bacillus thuringiensis) Talong

The crystal toxin genes from the soil bacterium Bacillus thuringiensis (Bt) were incorporated
into the eggplant (talong) genome to produce the protein CrylAc which is toxic to the target
insect pests. CrylAc protein is said to be highly specific to lepidopteran larvae such as the fruit
and shoot borer (FSB), the most destructive insect pest of eggplant. (International Service for
the Acquisition of Agri-biotech Applications, Inc. v.
Greenpeace Southeast Asia (Philippines), et al., GR No. 209271, December 8, 2015, En Banc
[Villarama])

Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., G.R. No.
189185, August 16, 2016, En Banc (Bersamin)

The Precautionary Principle

The principle of precaution originated as a social planning principle in Germany. In the 1980’s,
the Federal Republic of Germany used the Vorsogeprinzip (“foresight principle”) to justify the
implementation of vigorous policies to tackle acid rain, global warming and pollution of the
North Sea. It has since emerged from a need to protect humans and the environment from
increasingly unpredictable, uncertain, and unquantifiable but possibly catastrophic risks such as
those associated with Genetically Modified Organisms and climate change. The oft-cited
Principle 15 of the 1992 Rio Declaration on Environment and Development (1992 Rio Agenda)
first embodied this principle x x x.

In this jurisdiction, the principle of precaution appearing in the Rules of Procedure for
Environmental Cases (A.M. No. 09-6-8-SC) involves matters of evidence in cases where there is
lack of full scientific certainty in establishing a causal link between human activity and
environmental effect. In such an event, the courts may construe a set of facts as warranting
either judicial action or inaction with the goal of preserving and protecting the environment.

Application of the Precautionary Principle

It is notable x x x that the precautionary principle shall only be relevant if there is concurrence
of three elements, namely: uncertainty, threat of environmental damage and serious or
irreversible harm. In situations where the threat is relatively certain, or that the causal link
between an action and environmental damage can be established, or the probability of
occurrence can be calculated, only preventive, not precautionary measures, may be taken.
Neither will the precautionary principle apply if there is no indication of a threat of
environmental harm, or if the threatened harm is trivial or easily reversible.

In Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., (G.R. No.
189185, August 16, 2016, En Banc [Bersamin]), it was argued that the Ordinance enacted by the
City of Davao prohibiting aerial spraying of pesticides is justified since it will protect the health
of residents and the environment against the risks posed by aerial drift of chemicals applying
the precautionary principle. The Court did not find the presence of the elements for this
principle to apply, thus, it held:

We cannot see the presence of all the elements. To begin with, there has been no scientific
study. Although the precautionary principle allows lack of full scientific certainty in establishing
a connection between the serious or irreversible harm and the human activity, its application is
still premised on empirical studies. Scientific analysis is still a necessary basis for effective policy
choices under the precautionary principle.

Precaution is a risk management principle invoked after scientific inquiry takes place. This
scientific stage is often considered synonymous with risk assessment. As such, resort to the
principle shall not be based on anxiety or emotion, but from a rational decision rule, based on
ethics. As much as possible, a complete and objective scientific evaluation of the risk to the
environment or health should be conducted and made available to decision-makers for them to
choose the most appropriate course of action. Furthermore, the positive and negative effects of
an activity are also important in the application of the principle. The potential harm resulting
from certain activities should always be judged in view of the potential benefits they offer,
while the positive and negative effects of potential precautionary measures should be
considered.

The only study conducted to validate the effects of aerial spraying appears to be the Summary
Report on the Assessment and Fact-Finding Activities on the Issue of Aerial Spraying in Banana
Plantations. Yet, the fact-finding team that generated the report was not a scientific study that
could justify the resort to the precautionary principle. In fact, the Sangguniang Bayan ignored
the findings and conclusions of the fact-finding team x x x.
We should not apply the precautionary approach in sustaining the ban against aerial spraying if
little or nothing is known of the exact or potential dangers that aerial spraying may bring to the
health of the residents within and near the plantations and to the integrity and balance of the
environment. It is dangerous to quickly presume that the effects of aerial spraying would be
adverse even in the absence of evidence. Accordingly, for lack of scientific data supporting a
ban on aerial spraying, Ordinance No. 0309-07 should be struck down for being unreasonable.

Resident Marine Mammals of the Protected Seascape Tanon Strait, et al. v. Secretary Angelo
Reyes, et al., G.R. No. 180771, April 21, 2015, En Banc (Leonardo-De Castro)

Petitioners in this case were marine mammals (toothed whales, dolphins, and other cetacean
species) but were joined by human beings as “stewards of nature.

Are these marine mammals the proper parties to file the petition? In this case, actually the SC
did not rule squarely on this issue. The Court ruled instead that the issue of whether these
marine mammals have locus standi to file the petition had been eliminated because of Section
5, Rules for the Enforcement of Environmental Laws, which allows any citizen to file a petition
for the enforcement of environmental laws (Citizen’s Suit) and, in their petition, these marine
mammals were joined by human beings as “stewards of nature.”

Service Contracts with Foreign Corporations for Exploration of Oil and Petroleum Products
(Paragraph 4, Section 2, Article XII, 1987 Constitution)

Resident Marine Mammals of the Protected Seascape Tanon Strait, et al. v. Secretary Angelo
Reyes, et al., GR Nos. 180771 and 181527, April 21, 2015, En Banc (Leonardo- De Castro)

In these consolidated petitions, this Court has determined that the various issues raised by the
petitioners may be condensed into two primary issues:

Procedural Issue: Locus standi of the Resident Marine Mammals and Stewards x x x; and
Main Issue: Legality of Service Contract No. 46.

Procedural Issue

The Resident Marine Mammals, through the Stewards, “claim” that they have the legal
standing to file this action since they stand to be benefited or injured by the judgment in this
suit, citing Oposa v. Factoran, Jr. They also assert their right to sue for the faithful performance
of international and municipal environment laws created in their favor and for their benefit. In
this regard, they propound that they have a right to demand that they be accorded the benefits
granted to them in multilateral international instruments that the Philippine Government had
signed, under the concept of stipulation pour autrui.

Xxx

In light of the foregoing, the need to give the Resident Marine Mammals legal standing has
been eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to bring
to suit to enforce our environmental laws. It is worth noting here that the Stewards are joined
as real parties in the Petition and not just in representation of the named cetacean species. The
Stewards x x x having shown in their petition that there may be possible violations of laws
concerning the habitat of the Resident Marine Mammals, are therefore declared to possess the
legal standing to file this petition.

On the Legality of Service Contract No. 46 vis-à-vis Section 2, Article XII of the 1987 Constitution

This Court has previously settled the issue of whether service contracts are still allowed under
the 1987 Constitution. In La Bugal, we held that the deletion of the words “service contracts” in
the 1987 Constitution did not amount to a ban on them per se. In fact, in that decision, we
quoted in length, portions of the deliberations of the members of the Constitutional
Commission (ConCom) to show that in deliberating on paragraph 4, Section 2, Article XII, they
were actually referring to service contracts as understood in the 1973 Constitution, albeit with
safety measures to eliminate or minimize the abuses prevalent during the martial law regime.
Agreements involving Technical or Financial Assistance are Service Contracts with Safeguards

From the foregoing, we are impelled to conclude that the phrase agreements involving either
technical or financial assistance, referred to in paragraph 4, are in fact service contracts. But
unlike those of the 1973 variety, the new ones are between foreign corporations acting as
contractors on the one hand; and on the other, the government as principal or “owner” of the
works. In the new service contacts, the foreign contractors provide capital, technology and
technical know-how, and managerial expertise in the creation and operation of large-scale
mining/extractive enterprises; and the government, through its agencies (DENR, MGB), actively
exercises control and supervision over the entire operation.

In summarizing the matters discussed in the ConCom, we established that paragraph 4, with the
safeguards in place, is the exception to paragraph 1, Section 2 of Article XII. The following are
the safeguards this Court enumerated in La Bugal:

Such service contracts may be entered into only with respect to minerals, petroleum and other
mineral oils. The grant thereof is subject to several safeguards, among which are these
requirements:

(1) The service contract shall be crafted in accordance with a general law that will set standard
or uniform terms, conditions and requirements, presumably to attain a certain uniformity in
provisions to avoid the possible insertion of terms disadvantageous to the country.

(2) The President shall be the signatory of the government because, supposedly before an
agreement is presented to the President for signature, it will have been vetted several times
over at different levels to ensure that it conforms to law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it to Congress to
give that branch of government an opportunity to look over the agreement and interpose
timely objections, if any.

` Adhering to the aforementioned guidelines, this Court finds that SC-46 is indeed null and void
for noncompliance with the requirements of the 1987 Constitution.

1. The General Law on Oil Exploration

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

petroleum in the Philippines are governed by Presidential Decree No. 87 or the Oil Exploration
and Development Act of 1972. X x x

Contrary to the petitioners’ argument, Presidential Decree No. 87, although enacted in 1972,
before the adoption of the 1987 Constitution, remains to be a valid law unless otherwise
repealed x x x.

This Court could not simply assume that while Presidential Decree No. 87 had not yet been
expressly repealed, it had been impliedly repealed. X x x

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

ground that there is no general law prescribing the standard or uniform terms, conditions, and
requirements for service contracts involving oil exploration and extraction.

But note must be made at this point that while Presidential Decree No. 87 may serve as the
general law upon which a service contract for petroleum exploration and extraction may be
authorized, x x x the exploitation and utilization of this energy resource in the present case may
be allowed only through a law passed by Congress, since the Tanon Strait is a NIPAS (National
Integrated Protected Areas System) area.
2. President was not the signatory to SC-46 and the same was not submitted to

Congress

While the Court finds that Presidential Decree No. 87 is sufficient to satisfy the requirement of a
general law, the absence of the two other conditions, that the President be a signatory to SC-
46, and that Congress be notified of such contract, renders it null and void. As SC-46 was
executed in 2004, its terms should have conformed not only to the provisions of Presidential
Decree No. 87, but also those of the 1987 Constitution.

Xxx

Paragraph 4, Section 2, Article XII of the 1987 Constitution requires that the President himself
enter into any service contract for the exploration of petroleum. SC-46 appeared to have been
entered into and signed only by the DOE (Department of Energy) through its then Secretary,
Vicente S. Perez, Jr., contrary to the said constitutional requirement. Moreover, public
respondents have neither shown nor alleged that Congress was subsequently notified of the
execution of such contract.

Public respondents’ implied argument that based on the “alter ego principle,” their acts are also
that of then President Macapagal-Arroyo’s, cannot apply in this case. In Joson v. Torres (352
Phil. 888, 915 [1998]), we explained the concept of the alter ego principle or the doctrine of
qualified political agency and its limits x x x.

Under this doctrine, which recognizes the establishment of a single executive, all executive and
administrative organizations are adjuncts of the Executive Department, the heads of the various
executive departments are assistants and agents of the Chief Executive, and, except in cases
where the Chief Executive is required by the Constitution or law to act in person or the
exigencies of the situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the executive
departments, and the acts of the Secretaries of such departments, performed and promulgated
in the regular course of business, are, unless disapproved or reprobated by the Chief Executive
presumably the acts of the Chief Executive.

While the requirements in executing service contracts in paragraph 4, Section 2 of Article XII of
the 1987 Constitution seem like mere formalities, they, in reality, take on a much bigger role. As
we have explained in La Bugal, they are the safeguards put in place by the framers of the
Constitution to “eliminate or minimize the abuses prevalent during the martial law regime.”
Thus, they are not just mere formalities, which will render a contract unenforceable but not
void, if not complied with. They are requirements placed, not just in an ordinary statute, but in
the fundamental law, the non-observance of which will nullify the contract. X x x

As this Court has held in La Bugal, our Constitution requires that the President himself be the
signatory of service agreements with foreign-owned corporations involving the exploration,
development, and utilization of our minerals, petroleum, and other mineral oils. This power
cannot be taken lightly.

In this case, the public respondents have failed to show that the President had any participation
in SC-46. Their argument that their acts are actually the acts of then President Macapagal-
Arroyo, absent proof of her disapproval, must fail as the requirement that the President herself
enter into these kinds of contracts are embodied not just in any ordinary statute, but in the
Constitution itself. These service contracts involving the exploitation, development, and
utilization of our natural resources are of paramount interest to the present and future
generations. Hence, safeguards were put in place to insure that the guidelines set by law are
meticulously observed and likewise to eradicate the corruption that may easily penetrate
departments and agencies by ensuring that the President has authorized or approved of these
service contracts herself.

Even under the provisions of Presidential Decree No. 87, it is required that the Petroleum
Board, now the DOE (Department of Energy), obtain the President’s approval for the execution
of any contract under said statute x x x.
Even if we were inclined to relax the requirement in La Bugal to harmonize the 1987
Constitution with the aforementioned provision of Presidential Decree No. 87, it must be shown
that the government agency or subordinate official has been authorized by the President to
enter into such service contract for the government. Otherwise, it should be at least shown that
the President subsequently approved of such contract explicitly. None of these circumstances is
evident in the case at bar.

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

Xxx

Moreover, SC-46 was not executed for the mere purpose of gathering information on the
possible energy resources in the Tanon Strait as it also provides for the parties’ rights and
obligations relating to extraction and petroleum production should oil in commercial quantities
be found to exist in the area. While Presidential Decree No. 87 may serve as the general law
upon which a service contract for petroleum exploration and extraction may be authorized, the
exploitation and utilization of this energy resource in the present case may be allowed only
through a law passed by Congress, since the Tanon Strait is a NIPAS (National Integrated
Protected Areas System) area. Since there is no such law specifically allowing oil exploration
and/or extraction in the Tanon Strait, no energy resource exploitation and utilization may be
done in said protected seascape.

Academic Freedom

Academic freedom shall be enjoyed in all institutions of higher learning. (Sec. 5[2], Art. XIV,
1987 Constitution)

Academic freedom of educational institutions has been defined as the right of the school or
college to decide for itself, its aims and objectives, and how best to attain them – free from
outside coercion or interference save possibly when the overriding public welfare calls for some
restraint. It has a wide sphere of autonomy certainly extending to the choice of students. Said
constitutional provision is not to be construed in a niggardly manner or in a grudging fashion.
That would be to frustrate its purpose and nullify its intent. (University of San Agustin, Inc. v.
Court of Appeals, 230 SCRA 761, 774-775, March 7, 1994 [Nocon])

What are the essential freedoms subsumed in the term “academic freedom”?

In Ateneo de Manila University v. Capulong (G.R. No. 99327, 27 May 1993), this Court cited with
approval the formulation made by Justice Felix Frankfurter of the essential freedoms subsumed
in the term “academic freedom” encompassing not only “the freedom to determine x x x on
academic grounds who may teach, what may be taught (and) how it shall be taught,” but
likewise “who may be admitted to study.” We have thus sanctioned its invocation by a school in
rejecting students who are academically delinquent, or a laywoman seeking admission to a
seminary, or students violating “School Rules on Discipline.” (Isabelo, Jr. v. Perpetual Help
College of Rizal, Inc., 227 SCRA 595-597, Nov. 8, 1993, En Banc [Vitug])

THE STRUCTURE OF GOVERNMENT

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

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

powers; in a parliamentary government, instead of separation of powers, there is the union of
the executive and legislative branches. In a presidential form of government, the President is
elected by the people at large; in a parliamentary government, the Prime Minister is elected
not by the people at large but by members of Parliament.

Tests of a Valid Delegation of Power

In order to determine whether there is undue delegation of legislative power, the Court has
adopted two tests: the completeness test and the sufficient standard test. Under the first test,
the law must be complete in all its terms and conditions when it leaves the legislature such that
when it reaches the delegate, the only thing he will have to do is to enforce it. The second test
mandates adequate guidelines or limitations in the law to determine the boundaries of the
delegate’s authority and prevent the delegation from running riot. (Jose Jesus M. Disini, Jr., et
al. v. The Secretary of Justice, et al., G.R. No,. 203335, Feb. 11, 2014, En Banc [Abad])

The Legislative Department (Article VI, 1987 Constitution)

The legislative power shall be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives, except to the extent reserved to the people by the
provision on initiative and referendum. (Section 1, Article VI, 1987 Constitution)

Is legislative power exclusively vested in the Congress?

R.A. No. 6735 (The Initiative and Referendum Law)

The Principle of Bicameralism

The Bicameral Conference Committee

It is a mechanism for compromising differences between the Senate and the House of
Representatives. By the nature of its function, a Bicameral Conference Committee is capable of
producing unexpected results – results which sometimes may even go beyond its own
mandate. Philippine Judges Association v. Secretary Prado; Tolentino v. Secretary of Finance)

The Bills That Are Required to Originate Exclusively in the House of Representatives (Section 24,
Article VI of the 1987 Constitution)
It is important to note, however, that what is really required to originate exclusively in the
House of Representatives is not the law, but only the bill. The Senate has the power to propose
or concur with amendments. (Tolentino v. Secretary of Finance)

The Party-List System

The 1987 Constitution provides the basis for the party-list system of representation. Simply put,
the party-list system is intended to democratize political power by giving political parties that
cannot win in legislative district elections a chance to win seats in the House of
Representatives. The voter elects two representatives in the House of Representatives: one for
his or her legislative district; and another for his or her party-list group or organization of
choice. (Atong Paglaum, Inc., et al. v. COMELEC, G.R. No. 203766, 694 SCRA 477, April 2, 2013,
En Banc [Carpio])

Parameters to Determine Who May Participate in Party-List Elections

In determining who may participate in the coming 13 May 2013 and subsequent party-list
elections, the COMELEC shall adhere to the following parameters:

1. Three different groups may participate in the party-list system: (1) national parties or
organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations.

2. National parties or organizations and regional parties or organizations do not need to

organize along sectoral lines and do not need to represent any “marginalized and
underrepresented” sector.

3. Political parties can participate in party-list elections provided they register under the party-
list system and do not field candidates in legislative district elections. A political party, whether
major or not, that fields candidates in legislative district elections can participate in party-list
elections through its sectoral wing that can separately register under the party-list system. The
sectoral wing is by itself an independent sectoral party, and is linked to a political party through
a coalition.

4. Sectoral parties or organizations may either be “marginalized and underrepresented” or

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

5. A majority of the members of sectoral parties or organizations that represent the

“marginalized and underrepresented” must belong to the “marginalized and
underrepresented” sector they represent. Similarly, a majority of the members of sectoral
parties or organizations that lack “well-defined political constituencies” must belong to the
sector they represent. The nominees of sectoral parties or organizations that represent the
“marginalized and underrepresented,” or that represent those who lack “well-defined political
constituencies,” either must belong to their respective sectors, or must have a track record of
advocacy for their respective sectors. The nominees of national and regional parties or
organizations must be bona fide members of such parties or organizations.

6. National, regional, and sectoral parties or organizations shall not be disqualified if some of
their nominees are disqualified, provided that they have at least one nominee who remains
qualified. (Atong Paglaum, Inc., et al. v. COMELEC, G.R. No. 203766, 694 SCRA 477, April 2,
2013, En Banc [Carpio])

Based on the foregoing, it can be inferred that although the party-list system is a social justice
tool designed to have the marginalized and underrepresented sectors of society represented in
the House of Representatives, nonetheless, the dominant political parties are not totally
prohibited from participating in party-list elections.

Although, as a rule, they may not participate in party-list elections if they field candidates in
district elections, however, by way of an exception, they may still participate through their
sectoral wing, provided that the sectoral wing is registered separately as a political party in the
COMELEC and is linked to the dominant political party through a coalition. (Atong Paglaum, Inc.,
et al. v. COMELEC, G.R. No. 203766, 694 SCRA 477, April 2, 2013, En Banc [Carpio])

Ang Bagong Bayani – OFW Labor Party v. COMELEC

The religious sector is expressly prohibited from participating in party-list elections (Sec. 5, 2nd
par., Art. VI, 1987 Constitution). Religious denominations and sects are even prohibited from
being registered as political parties in the COMELEC (Sec. 2, par. 5, Art. IX- C, 1987 Constitution).

However, the Supreme Court clarified, based on the intent of the framers of the 1987
Constitution, that what is prohibited is the registration of a religious sect as a political party;
there is no prohibition against a priest running as a candidate.

Ang Ladlad-LGBT Party v. Commission on Elections, G.R. No. 190582, 618 SCRA 32, April 8, 2010,
En Banc (Del Castillo)

The act of the COMELEC of not allowing the registration of Ang Ladlad-LGBT Party as a political
party to participate in party-list elections on the ground that its members are “immoral,” citing
verses from the Bible and the Koran, is tainted with grave abuse of discretion as it violated the
non-establishment clause of freedom of religion and, therefore, should be nullified.

Under this non-establishment clause of freedom of religion, the COMELEC, as an agency of the
government, is not supposed to use religious standards in its decisions and actions.

Veterans Federation Party v. COMELEC

Under Sec. 5, 2nd par., Art. VI of the Constitution, the party-list representatives shall constitute
twenty (20) percent of the total number of representatives, including those under the party-list.
Based on this, the ratio is 4:1, i.e., for every four (4) district representatives, there should be
one (1) party-list representative.

In the computation of the number of seats allocated to party-list representatives, fractional

representation is not allowed is it will exceed the twenty (20) allocated seats for party-list
representatives and, therefore, will violate the Constitution. In such a case, what should be
done is simply to disregard the fraction.

The Inviolable Parameters to Determine the Winners in Party-list Elections are:

1. the twenty (20) percent allocation;

2. the two (2) percent threshold;

3. the three (3) – seat limit; and

4. proportional representation

Barangay Association for National Advancement and Transparency (BANAT) v. COMELEC, G.R.
No. 179271, 586 SCRA 210, July 2, 2009, En Banc (Carpio)

What was declared unconstitutional in this case was not the two (2) percent threshold itself;
but rather, the continued application of the two (2) percent threshold in determining the
additional seats that will be allocated to winners in party-list elections. Thus, the SC clarified:

“We rule that, in computing the allocation of additional seats, the continued operation of the
two percent threshold for the distribution of the additional seats as found in the second clause
of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that the two percent
threshold makes it mathematically impossible to

achieve the maximum number of available party list seats when the number of available party
list seats exceeds 50. The continued operation of the two percent threshold in the distribution
of the additional seats frustrates the attainment of the permissive ceiling that 20% of the
members of the House of Representatives shall consist of party-list representatives.

“X x x

“We therefore strike down the two percent threshold only in relation to the distribution of the
additional seats as found in the second clause of Section 11(b) of R.A. No. 7941. The two
percent threshold presents an unwarranted obstacle to the full implementation of Section 5(2),
Article VI of the Constitution and prevents the attainment of “the broadest possible
representation of party, sectoral or group interests in the House of Representatives.”

Party-list Representatives and District Representatives have the same Rights, Salaries, and
Emoluments

Once elected, both the district representatives and the party-list representatives are treated in
like manner. They have the same deliberative rights, salaries, and emoluments. They can
participate in the making of laws that will directly benefit their legislative districts or sectors.
They are also subject to the same term limitation of three years for a maximum of three
consecutive terms. (Daryl Grace J. Abayon v. The Honorable House of Representatives Electoral
Tribunal, et al., G.R. Nos. 189466 and 189506, 612 SCRA 375, 11 February 2010, En Banc [Abad])

Oversight Powers and Functions of Congress

MakalIntal v. COMELEC (Justice Reynato S. Puno’s Separate Concurring Opinion; ABAKADA Guro
Party List v. Secretary Purisima)
Post-enactment measures undertaken by Congress to enhance its understanding of, and
influence over, the legislation it has enacted.

This is intrinsic in the grant of legislative power itself to Congress, and integral to the system of
checks and balances inherent in a democratic system of government.

Categories of Oversight Powers and Functions

1. Legislative Scrutiny 2. Legislative Investigation 3. Legislative Supervision

What is a Legislative Veto?

A disapproval by Congress, or by an oversight committee of Congress, of an administrative

regulation promulgated by an administrative body or agency.

The Power of Appropriation

No money shall be paid out of the Treasury except in pursuance of an appropriations made by
law. (Section 29 [1], Article VI, 1987 Constitution)

Under the Constitution, the power of appropriation is vested in the Legislature, subject to the
requirement that appropriations bills originate exclusively in the House of Representatives with
the option of the Senate to propose or concur with amendments. While the budgetary process
commences from the proposal submitted by the President to Congress, it is the latter which
concludes the exercise by crafting an appropriation act it may deem beneficial to the nation,
based on its own judgment, wisdom and purposes. Like any other piece of legislation, the
appropriation act may then be susceptible to objection from the branch tasked to implement it,
by way of a Presidential veto. Thereafter, budget execution comes under the domain of the
Executive branch which deals with the operational aspects of the cycle including the allocation
and release of funds earmarked for various projects. Simply put, from the regulation of fund
releases, the implementation of payment schedules and up to the actual spending of the funds
specified in the law, the Executive takes the wheel. The DBM (Department of Budget and
Management) lays down the guidelines for the disbursement of the fund. This demonstrates
the power given to the President to execute appropriation laws and therefore, to exercise the
spending per se of the budget. (Lawyers against Monopoly and Poverty [LAMP] v. The Secretary
of Budget and Management, G.R. No. 164987, Apr. 24, 2012, En Banc [Mendoza])

The “Pork Barrel” System

Considering petitioners’ submission and in reference to its local concept and legal history, the
Court defines the Pork Barrel System as the collective body of rules and practices that govern
the manner by which lump-sum, discretionary funds, primarily intended for local projects, are
utilized through the respective participations of the Legislative and Executive branches of
government, including its members. The Pork Barrel System involves two (2) kinds of lump-sum,
discretionary funds:

First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund wherein legislators, either individually or collectively organized into
committees, are able to effectively control certain aspects of the fund’s utilization through
various post-enactment measures and/or practices; and

Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund which allows the President to determine the manner of its utilization. X x x
the Court shall delimit the use of such term to refer only to the Malampaya Funds and the
Presidential Social Fund. (Belgica v. Ochoa, G.R. No. 208566, 710 SCRA 1, 105-106, Nov. 19,
2013, En Banc [Perlas-Bernabe])

The “Pork Barrel” System Declared Unconstitutional: Reasons

The Court renders this Decision to rectify an error which has persisted in the chronicles of our
history. In the final analysis, the Court must strike down the Pork Barrel System as
unconstitutional in view of the inherent defects in the rules within which it

operates. To recount, insofar as it has allowed legislators to wield, in varying gradations, non-
oversight, post-enactment authority in vital areas of budget execution, the system has violated
the principle of separation of powers; insofar as it has conferred unto legislators the power of
appropriation by giving them personal, discretionary funds from which they are able to fund
specific projects which they themselves determine, it has similarly violated the principle of non-
delegability of legislative power; insofar as it has created a system of budgeting wherein items
are not textualized into the appropriations bill, it has flouted the prescribed procedure of
presentment and, in the process, denied the President the power to veto items; insofar as it has
diluted the effectiveness of congressional oversight by giving legislators a stake in the affairs of
budget execution, an aspect of governance which they may be called to monitor and scrutinize,
the system has equally impaired public accountability; insofar as it has authorized legislators,
who are national officers, to intervene in affairs of purely local nature, despite the existence of
capable local institutions, it has likewise subverted genuine local autonomy; and again, insofar
as it has conferred to the President the power to appropriate funds intended by law for energy-
related purposes only to other purposes he may deem fit as well as other public funds under
the broad classification of “priority infrastructure development projects,” it has once more
transgressed the principle of non-delegability. (Belgica, et al. v. Exec. Sec. Paquito N. Ochoa, et
al., G.R. No. 208566, 710 SCRA 1, 160-161, Nov. 19, 2013, En Banc [Perlas-Bernabe])

The Power of Augmentation

No law shall be passed authorizing any transfer of appropriations; however, the President, the
President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to
augment any item in the general appropriations law for their respective offices from savings in
other items in their respective appropriations. (Section 25 [5], Article VI, 1987 Constitution)

Requisites for the valid transfer of appropriated funds under Section 25(5), Article VI of the
1987 Constitution
The transfer of appropriated funds, to be valid under Section 25(5), Article VI of the
Constitution, must be made upon a concurrence of the following requisites, namely:

(1) There is a law authorizing the President, the President of the Senate, the

Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads
of the Constitutional Commissions to transfer funds within their respective offices; (2) The
funds to be transferred are savings generated from the appropriations of

their respective offices; and (3) The purpose of the transfer is to augment an item in the general
appropriations law for their respective offices. (Maria Carolina P. Araullo, et al. v. Benigno
Simeon C. Aquino III, et al. G.R. No., 209287, 728 SCRA 1, July 1, 2014, En Banc [Bersamin])

Congressional Investigations

There are two (2) kinds of congressional investigations, i.e., inquiry in aid of legislation (Section
21, Article VI, 1987 Constitution); and the question hour (Section 22, Article VI, 987
Constitution)

Inquiry in Aid of Legislation (Section 21, Article VI, 1987 Constitution)

In Arnault v. Nazareno, the Court held that intrinsic in the grant of legislative power itself to
Congress by the Constitution is the power to conduct inquiries in aid of legislation, for Congress
may not be expected to enact good laws if it will be denied the power investigate. Note that
Arnault was decided in the 1950’s under the 1935 Constitution, and in that Constitution there
was no provision similar to that which is expressly provided in the present Constitution. Yet, as
early as that case, the Court already recognized that this power is intrinsic in the grant of
legislative power itself to Congress by the Constitution.
In Bengzon, Jr. v. Senate Blue Ribbon Committee, two (2) relevant questions were raised. First,
is this power of each House of Congress to conduct inquiries in aid of legislation absolute, or are
there limitations? Second, is this power subject to judicial review, or is it a political question?

As to the first question, the Court clarified that a mere reading of Section 21, Article VI of the
Constitution will show that the power is not really absolute; in fact there are three (3)
important limitations imposed therein, and these are:

1. The inquiry must be in aid of legislation; 2. It must be conducted in accordance with the duly
published rules of procedure of

a House of Congress conducting such inquiry; and 3. The rights of persons appearing in or
affected by such inquiry shall be respected.

As to the second, the Court held that since it had already been shown that the power is not
really absolute, in fact, there are important limitations, it follows, therefore, that such is subject
to judicial review especially in view of the expanded power of the Court to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the government.

That’s why in that case of Bengzon, Jr., the Court granted the petition for certiorari and ordered
the Senate Blue Ribbon Committee not to further conduct the inquiry since the Court found
that the purpose of said inquiry was not really in aid of legislation; in fact the purpose was an
encroachment on a judicial prerogative.

The Question Hour (Section 22, Article VI, 1987 Constitution)

As explained by the Court in Senate v. Ermita, this question hour is not really a regular feature
of a presidential government, but is merely a borrowed concept from a parliamentary
government.

(PHILCOMSAT Holdings Corporation v. Senate, G.R. No. 180308, June 19, 2012 En Banc [Perlas-
Bernabe])

The Senate Committees’ power of inquiry relative to PSR No. 455 has been passed upon and
upheld in the consolidated cases of In the Matter of the Petition for Habeas Corpus of Camilo L.
Sabio which cited Article VI, Section 21 of the Constitution.

The Court explained that such conferral of the legislative power of inquiry upon any committee
of Congress must carry with it all powers necessary and proper for its effective discharge. On
this score, the Senate Committee cannot be said to have acted with grave abuse of discretion
amounting to lack or in excess of jurisdiction when it submitted Committee Resolution No. 312,
given its constitutional mandate to conduct legislative inquiries. Nor can the Senate Committee
be faulted for doing so on the very same day that the assailed resolution was submitted. The
wide latitude given to Congress with respect to these legislative inquiries has long been settled,
otherwise, Article VI, Section 21 would be rendered pointless.

Neri v. Senate Committee on Accountability of Public Officers and Investigations, 564 SCRA 152,
Sept. 4, 2008, En Banc (Leonardo-De Castro)

There is a Recognized Presumptive Presidential Communications Privilege

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

Xxx

The constitutional infirmity found in the blanket authorization to invoke executive privilege
granted by the President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this
case.

In this case, it was the President herself, through Executive Secretary Ermita, who invoked
executive privilege on a specific matter involving an executive agreement between the
Philippines and China, which was the subject of the three (3) questions propounded to
petitioner Neri in the course of the Senate Committees’ investigation. Thus, the factual setting
of this case markedly differs from that passed upon in Senate v. Ermita.

Moreover x x x the Decision in this present case hews closely to the ruling in Senate v. Ermita,
to wit:

Executive Privilege

The phrase “executive privilege is not new in this jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution. Being of American origin, it is best understood in light of
how it has been defined and used in the legal literature of the United States.

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

“The expectation of a President to the confidentiality of his conversations and

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

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

Senate v. Ermita expounds on the constitutional underpinning of the relationship between the
Executive Department and the Legislative Department to explain why there should be no
implied authorization or presumptive authorization to invoke executive privilege by the
President’s subordinate officials, as follows:

“When Congress exercises its power of inquiry, the only way for department heads to exempt
themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that
they are department heads. Only one executive official may be exempted from this power – the
President on whom executive power is vested, hence, beyond the reach of Congress except
through the power of impeachment. It is based on he being the highest official of the executive
branch, and the due respect accorded to a co-equal branch of government which is sanctioned
by a long-standing custom.”

Thus, if what is involved is the presumptive privilege of presidential communications when

invoked by the President on a matter clearly within the domain of the Executive, the said
presumption dictates that the same be recognized and be given preference or priority, in the
absence of proof of a compelling or critical need for disclosure by the one assailing such
presumption. Any construction to the contrary will render meaningless the presumption
accorded by settled jurisprudence in favor of executive privilege. In fact, Senate v. Ermita
reiterates jurisprudence citing “the considerations justifying a presumptive privilege for
Presidential communications.”

The Electoral Tribunals in Congress

The House of Representatives Electoral Tribunal (HRET) has Jurisdiction over Election Contests
involving Party-List Representatives

It is for the HRET to interpret the meaning of this particular qualification of a nominee – the
need for him or her to be a bona fide member or a representative of his party-list organization
– in the context of the facts that characterize Abayon and Palparan’s relation to Aangat Tayo
and Bantay, respectively, and the marginalized and underrepresented interests that they
presumably embody.

Section 17, Article VI of the Constitution provides that the HRET shall be the sole judge of all
contests relating to, among other things, the qualifications of the members of the House of
Representatives. Since party-list nominees are “elected members” of the House of
Representatives, the HRET has jurisdiction to hear and pass upon their qualifications. By
analogy with the cases of district representatives, once the party or organization of the party-
list nominee has been proclaimed and the nominee has taken his oath and assumed office as
member of the House of Representatives, the COMELEC’s jurisdiction over election contests
relating to his qualification ends and the HRET’s own jurisdiction begins. (Daryl Grace J. Abayon
v. The Honorable House of Representatives Electoral Tribunal, et al., G.R. Nos. 189466 and
189506, 612 SCRA 375, 11 February 2010, En Banc [Abad])

The Executive Department (Article VII, 1987 Constitution)

The executive power shall be vested in the President of the Philippines. (Section 1, Article VII,
1987 Constitution)

It has already been established that there is one repository of executive powers, and that is the
President of the Republic. This means that when Section 1, Article VII of the Constitution speaks
of executive power, it is granted to the President and no one else. Corollarily, it is only the
President, as Chief Executive, who is authorized to exercise emergency powers as provided
under Section 23, Article VI, of the Constitution, as well as what became known as the calling-
out powers under Section 18, Article VII thereof. (Jamar Kulayan v. Gov. Abdusakur Tan, G.R.
No. 187298, July 3, 2012, En Banc [Sereno, CJ]),

The duty to protect the State and its people must be carried out earnestly and effectively
throughout the whole territory of the Philippines in accordance with constitutional provision on
national territory. Hence, the President of the Philippines, as the sole repository of executive
power, is the guardian of the Philippine archipelago, including all the islands and waters
embraced therein and all other territories over which the Philippines and sovereignty or
jurisdiction.

Xxx

To carry out this important duty, the President is equipped with authority over the Armed
Forces of the Philippines (AFP), which is the protector of the people and the state. X x x. In
addition, the Executive is constitutionally empowered to maintain peace and order, protect life,
liberty, and property, and promote the general welfare. In recognition of these powers,
Congress has specified that the President must oversee, ensure, and reinforce our defensive
capabilities against external and internal threats and, in the same vein, ensure that the country
is adequately prepared for all national and local emergencies arising from natural and man-
made disasters.

To be sure, this power is limited by the Constitution itself. X x x (Rene A.V. Saguisag, et al. v.
Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No. 212426, Jan. 12, 2016, En Banc
[Sereno, CJ])

The Faithful Execution Clause

This Court has interpreted the faithful execution clause as an obligation imposed on the
President, and not a separate grant of power. Section 17, Article VII of the Constitution,
expresses this duty in no uncertain terms and includes it in the provision regarding the
President’s power of control over the executive department x x x.

Xxx

Hence, the duty to faithfully execute the laws of the land is inherent in executive power and is
intimately related to the other executive functions. X x x

These obligations are as broad as they sound, for a President cannot function with crippled
hands, but must be capable of securing the rule of law within all territories of the Philippine
Islands and be empowered to do so within constitutional limits. Congress cannot, for instance,
limit or take over the President’s power to adopt implementing rules and regulations for a law
it has enacted.

More important, this mandate is self-executory by virtue of its being inherently executive in
nature. X x x
The import of this characteristic is that the manner of the President’s execution of the law,
even if not expressly granted by the law, is justified by necessity and limited only by law, since
the President must “take necessary and proper steps to carry into execution the law.” X x x

In light of this constitutional duty, it is the President’s prerogative to do whatever is legal and
necessary for Philippine defense interests. It s no coincidence that the constitutional provision
on the faithful execution clause was followed by that on the President’s commander-in-chief
powers, which are specifically granted during extraordinary events of lawless violence, invasion,
or rebellion. And this duty of defending the country is unceasing, even in times when there is
no state of lawless violence, invasion, or rebellion. At such times, the President has full powers
to ensure the faithful execution of the laws.

It would therefore be remiss for the President and repugnant to the faithful-execution clause of
the Constitution to do nothing when the call of the moment requires increasing the military’s
defensive capabilities, which could include forging alliances with states that hold a common
interest with the Philippines or bringing an international suit against an offending state.

Xxx

This approach of giving utmost deference to presidential initiatives in respect of foreign affairs
is not novel to the Court. The President’s act of treating EDCA as an executive agreement is not
the principal power being analyzed x x x. Rather, the preliminary analysis is in reference to the
expansive power of foreign affairs. We have long treated this power as something the Courts
must not unduly restrict. X x x

Xxx

Understandably, this Court must view the instant case with the same perspective and
understanding, knowing full well the constitutional and legal repercussions of any judicial
overreach. (Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al., G.R.
No. 212426, Jan. 12, 2016, En Banc [Sereno, CJ])
The Doctrine of Qualified Political Agency

Under this doctrine, which recognizes the establishment of a single executive, all executive and
administrative organizations are adjuncts of the Executive Department, the heads of the various
executive departments are assistants and agents of the Chief Executive, and, except in cases
where the Chief Executive is required by the Constitution or law to act in person or the
exigencies of the situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the executive
departments, and the acts of the Secretaries of such departments, performed and promulgated
in the regular course of business, are, unless disapproved or reprobated by the Chief Executive
presumably the acts of the Chief Executive. (Resident Marine Mammals of the Protected
Seascape Tanon Strait, et al. v. Secretary Angelo Reyes, et al., GR Nos. 180771 and 181527, April
21, 2015, En Banc [Leonardo-De Castro])

Resident Marine Mammals of the Protected Seascape Tanon Strait, et al. v. Secretary Angelo
Reyes, et al., G.R. No. 180771, April 21, 2015, En Banc (Leonardo-De Castro)

The constitutionality of the Service Contract Agreement for the large-scale exploration,
development and utilization of oil and petroleum gasses in Tanon Strait entered into between a
Japanese petroleum corporation and the Philippine Government was challenged in this case.
The one who signed this Agreement on behalf of the Philippine government was the Secretary
of Energy. Was the Agreement valid?

The SC said “No.” It violated Section 2, 4th par., Article XII of the Constitution (National
Economy and Patrimony) which states that it is the President who should enter into that kind of
contract with foreign corporations. Public respondents, in trying to justify their action, however,
invoked the doctrine of qualified political agency since the Secretary of Energy is an alter-ego of
the President. The SC clarified that this doctrine of qualified political agency may not be validly
invoked if it is the Constitution itself that provides that the act should be performed by the
President no less, especially since what are involved are natural resources.
The Appointing Power of the President

Not All Officers Appointed by the President under Section 16, Article VII of the 1987
Constitution Shall Require Confirmation by the Commission on Appointments

Conformably, as consistently interpreted and ruled in the leading case of Sarmiento III v. Mison,
and in the subsequent cases of Bautista v. Salonga, Quintos-Deles v. Constitutional Commission,
and Calderon v. Carale, under Section 16, Article VII, of the Constitution, there are four groups
of officers of the government to be appointed by the President:

First, the heads of the executive departments, ambassadors, other public ministers and consuls,
officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution;

Second, all other officers of the Government whose appointments are not otherwise provided
for by law;

Third, those whom the President may be authorized by law to appoint;

Fourth, officers lower in rank whose appointments the Congress may by law vest in the
President alone.

It is well-settled that only presidential appointees belonging to the first group require the
confirmation by the Commission on Appointments. (Manalo v. Sistoza, 312 SCRA 239, Aug. 11,
1999, En Banc [Purisima])

The Nature of an Ad Interim Appointment

An ad interim appointment is a permanent appointment because it takes effect immediately
and can no longer be withdrawn by the President once the appointee has qualified into office.
The fact that it is subject to confirmation by the Commission on Appointments does not alter its
permanent character. The Constitution itself makes an ad interim appointment permanent in
character by making it effective until disapproved by the Commission on Appointments or until
the next adjournment of Congress. X x x Thus, the ad interim appointment remains effective
until such disapproval or next adjournment, signifying that it can no longer be withdrawn or
revoked by the President.

Xxx

More than half a century ago, this Court had already ruled that an ad interim appointment is
permanent in character. In Summers v. Ozaeta, decided on October 25, 1948, we held that:

“x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article
VII of the Constitution, which provides that the ‘President shall have the power to make
appointments during the recess of the Congress, but such appointments shall be effective only
until disapproval by the Commission on Appointments or until the next adjournment of the
Congress.’ It is an appointment permanent in nature, and the circumstance that it is subject to
confirmation by the Commission on Appointments does not alter its permanent character. An
ad interim appointment is disapproved certainly for a reason other than that its provisional
period has expired. Said appointment is of course distinguishable from an ‘acting’ appointment
which is merely temporary, good until another permanent appointment is issued.”

The Constitution imposes no condition on the effectivity of an ad interim appointment, and

thus an ad interim appointment takes effect immediately. The appointee can at once assume
office and exercise, as a de jure officer, all the powers pertaining to the office. X x x

Thus, the term “ad interim appointment”, as used in letters of appointment signed by the
President, means a permanent appointment made by the President in the meantime that
Congress is in recess. It does not mean a temporary appointment that can be withdrawn or
revoked at any time. The term, although not found in the text of the Constitution, has acquired
a definite legal meaning under Philippine jurisprudence. The Court had again occasion to
explain the nature of an ad interim appointment in the more recent case of Marohombsar v.
Court of Appeals, where the Court stated:

“We have already mentioned that an ad interim appointment is not descriptive of the nature of
the appointment, that is, it is not indicative of whether the appointment is temporary or in an
acting capacity, rather it denotes the manner in which the appointment was made. In the
instant case, the appointment extended to private respondent by then MSU President Alonto,
Jr. was issued without condition nor limitation as to tenure. The permanent status of private
respondent’s appointment as Executive Assistant II was recognized and attested to by the Civil
Service Commission Regional Office No. 12. Petitioner’s submission that private respondent’s
ad interim appointment is synonymous with a temporary appointment which could be validly
terminated at any time is clearly untenable. Ad interim appointments are permanent
appointment but their terms are only until the Board disapproves them.”

An ad interim appointee who has qualified and assumed office becomes at that moment a
government employee and therefore part of the civil service. He enjoys the constitutional
protection that “[n]o officer or employee in the civil service shall be removed or suspended
except for cause provided by law.” (Section 2[3], Article IX-B of the Constitution) Thus, an ad
interim appointment becomes complete and irrevocable once the appointee has qualified into
office. X x x Once an appointee has qualified, he acquires a legal right to the office which is
protected not only by statute but also by the Constitution. He can only be removed for cause,
after notice and hearing, consistent with the requirements of due process. (Matibag v.
Benipayo, 380 SCRA 49, April 2, 2002, En Banc [Carpio])

Limitations on the Appointing Power of the President

Two months immediately before the next presidential elections and up to the end of his term, a
President or Acting President shall not make appointments, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger
public safety. (Section 15, Article VII, 1987 Constitution)
In Re: Honorable Mateo Valenzuela and Placido Vallarta

De Castro v. Judicial and Bar Council

The Calling-out Power of the President as Commander-in-Chief of the Armed Forces

While the President is still a civilian, Article II, Section 3 of the Constitution mandates that
civilian authority is, at all times, supreme over the military, making the civilian president the
nation’s supreme military leader. The net effect of Article II, Section 3, when read with Article
VII, Section 18, is that a civilian President is the ceremonial, legal and administrative head of the
armed forces. The Constitution does not require that the President must be possessed of
military training and talents, but as Commander-in-Chief, he has the power to direct military
operations and to determine military strategy. Normally, he would be expected to delegate the
actual command of the armed forces to military experts, but the ultimate power is his. (Jamar
Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En Banc [Sereno, CJ])

The Calling out Power is exclusive to the President

In Jamar Kulayan v. Gov. Abdusakur Tan, G.R. No. 187298, July 3, 2012, En Banc (Sereno, CJ),
the Court held:

Given the foregoing, Governor Tan is not endowed with the power to call upon the armed
forces at his own bidding. In issuing the assailed proclamation, Governor Tan exceeded his
authority when he declared a state of emergency and called upon the Armed Forces, the police,
and his own civilian Emergency Force. The calling-out powers contemplated under the
Constitution is exclusive to the President. An exercise by another official, even if he is the local
chief executive, is ultra vires, and may not be justified by the invocation of Section 465 of the
Local Government Code.
Is the President’s power to call out the armed forces as their Commander-in-Chief in order to
prevent or suppress lawless violence, invasion or rebellion subject to judicial review, or is it a
political question?

When the President calls the armed forces to prevent or suppress lawless violence, invasion or
rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is
clear from the intent of the framers and from the text of the Constitution itself. The Court, thus,
cannot be called upon to overrule the President’s wisdom or substitute its own. However, this
does not prevent an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave abuse of
discretion. In view of the constitutional intent to give the President full discretionary power to
determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to
show that the President’s decision is totally bereft of factual basis. The present petition fails to
discharge such heavy burden as there is no evidence to support the assertion that there exists
no justification for calling out the armed forces. There is, likewise, no evidence to support the
proposition that grave abuse was committed because the power to call was exercised in such a
manner as to violate the constitutional provision on civilian supremacy over the military. In the
performance of this Court’s duty of “purposeful hesitation” before declaring an act of another
branch as unconstitutional, only where such grave abuse of discretion is clearly shown shall the
Court interfere with the President’s judgment. To doubt is to sustain. (Integrated Bar of the
Philippines v. Hon. Ronaldo B. Zamora, G.R. No. 141284, Aug. 15, 2000, En Banc [Kapunan])

The Pardoning Power of the President

Except in cases of impeachment, or as otherwise provided in this Constitution, the President

may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after
conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of all the Members of the
Congress. (Section 19, 1987 Constitution)

Was the Pardon granted to former President Estrada an Absolute Pardon?

Former President Estrada was granted an absolute pardon that fully restored all his civil and
political rights, which naturally includes the right to seek public office. The wording of the
pardon extended to former President Estrada is complete, unambiguous, and unqualified. It is
likewise unfettered by Articles 36 and 41 of the Revised Penal Code. The only reasonable,
objective, and constitutional interpretation of the language of the pardon is that the same in
fact conforms to Articles 36 and 41 of the Revised Penal Code. (Atty. Alicia Risos-Vidal v.
COMELEC, G.R. No. 206666, January 21, 2015, En Banc [Leonardo-De Castro])The 1987
Constitution specifically Section 19 of Article VII and Section 5 of Article IX- C, provides that the
President of the Philippines possesses the power to grant pardons, along with other acts of
executive clemency.

It is apparent that the only instances in which the President may not extend pardon remain to
be: (1) impeachment cases; (2) cases that have not yet resulted in a final conviction; and (3)
cases involving violations of election laws, rules and regulations in which there was no favorable
recommendation coming from the COMELEC. Therefore, it can be argued that any act of
Congress by way of statute cannot operate to delimit the pardoning power of the President.

It is unmistakably the long-standing position of this Court that the exercise of the pardoning
power is discretionary in the President and may not be interfered with by Congress or the
Court, except only when it exceeds the limits provided for by the Constitution.

This doctrine of non-diminution or non-impairment of the President’s power of pardon by acts

of Congress, specifically through legislation, was strongly adhered to by an overwhelming
majority of the framers of the 1987 Constitution when they finally rejected a proposal to carve
out an exception from the pardoning power of the President in the form of “offenses involving
graft and corruption” that would be enumerated and defined by Congress through the
enactment of a law. (Atty. Alicia Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015, En
Banc [Leonardo-De Castro])

The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the Revised Penal
Code cannot, in any way, serve to abridge or diminish the exclusive power and prerogative of
the President to pardon persons convicted of violating penal laws.
Xxx

A rigid and inflexible reading of the above provisions of law is unwarranted, especially so if it
will defeat or unduly restrict the power of the President to grant executive clemency.

It is well-entrenched in this jurisdiction that where the words of a statute are clear, plain, and
free from ambiguity, it must be given its literal meaning and applied without attempted
interpretation. Verba legis non est recedendum. From the words of a statute there should be
no departure (Republic v. Camacho, G.R. No. 185604, June 13, 2013, 698 SCRA 380, 398). It is
this Court’s firm view that the phrase in the presidential pardon at issue which declares that
former President Estrada “is hereby restored to his civil and political rights” substantially
complies with the requirement of express restoration.

Xxx

For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in a way that
will give full effect to the executive clemency granted by the President, instead of indulging in
an overly strict interpretation that may serve to impair or diminish the import of the pardon
which emanated from the Office of the President and duly signed by the Chief Executive
himself/herself. The said codal provisions must be construed to harmonize the power of
Congress to define crimes and prescribe penalties for such crimes and the power of the
President to grant executive clemency. All that said provisions impart is that the pardon of the
principal penalty does not carry with it the remission of the accessory penalties unless the
President expressly includes said accessory penalties in the pardon. It still recognizes the
Presidential prerogative to grant executive clemency and, specifically, to decide to pardon the
principal penalty while excluding its accessory penalties or to pardon both. Thus, Articles 36 and
41 only clarify the effect of the pardon so decided upon by the President on the penalties
imposed in accordance with law.

A close scrutiny of the text of the pardon to former President Estrada shows that both the
principal penalty of reclusion perpetua and its accessory penalties are included in the pardon.
The first sentence refers to the executive clemency extended to former President Estrada who
was convicted by the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua.
The latter is the principal penalty pardoned which relieved him of imprisonment. The sentence
that followed, which states that “(h)e is hereby restored to his civil and political rights,”
expressly remitted the accessory penalties that attached to the principal penalty of reclusion
perpetua. Hence, even if we apply Articles 36 and 41 of the Revised Penal Code, it is indubitable
from the text of the pardon that the accessory penalties of civil interdiction and perpetual
absolute disqualification were expressly remitted together with the principal penalty of
reclusion perpetua.

In this jurisdiction, the right to seek public elective office is recognized by law as falling under
the whole gamut of civil and political rights.

Xxx

No less than the International Covenant on Civil and Political Rights, to which the Philippines is
a signatory, acknowledges the existence of said rights. X x x

Recently, in Sobejana-Condon v. Commission on Elections (G.R. No. 198742, August 10, 2012,
678 SCRA 267, 292), the Court unequivocally referred to the right to seek public elective office
as a political right x x x.

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

Jurisprudence educates that a preamble is not an essential part of an act as it is an introduction

or preparatory clause that explains the reasons for the enactment, usually introduced by the
word “whereas.” (People v. Balasa, 356 Phil. 362, 396 [1998]) Whereas clauses do not form part
of a statute because, strictly speaking, they are not part of the operative language of the
statute (Llamado v. Court of Appeals, 256 Phil. 328, 339 [1989]). In this case, the whereas clause
at issue is not an integral part of the decree of the pardon, and therefore, does not by itself
alone operate to make the pardon conditional or to make its effectivity contingent upon the
fulfillment of the aforementioned commitment nor to limit the scope of the pardon. (Atty.
Alicia Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015, En Banc [Leonardo-De
Castro])

The Diplomatic and Treaty-Making Power of the President

No treaty or international agreement shall be valid and effective unless concurred in by at least
two-thirds of all the Members of the Senate. (Section 21, Article VII, 1987 Constitution)

After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops, or facilities
shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate
and, when the Congress so requires, ratified by a majority of the votes cast by the people in a
national referendum held for that purpose, and recognized as a treaty by the other contracting
State. (Section 25, Article XVIII, 1987 Constitution)

The Power and Duty to Conduct Foreign Relations

The President also carries the mandate of being the sole organ in the conduct of foreign
relations. Since every state has the capacity to interact with and engage in relations with other
sovereign states, it is but logical that every state must vest in an agent the authority to
represent its interests to those other sovereign states.

Xxx

The role of the President in foreign affairs is qualified by the Constitution in that the Chief
Executive must give paramount importance to the sovereignty of the nation, the integrity of its
territory, its interest, and the right of the sovereign Filipino people to self- determination. X x
x(Rene A.V. Saguisag, et al. v. Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No. 212426,
Jan. 12, 2016, En Banc [Sereno, CJ])

The Relationship between the Two Major Presidential Functions and the Role of the
SenateClearly, the power to defend the State and to act as its representative in the
international sphere inheres in the person of the President. This power, however, does not
crystallize into absolute discretion to craft whatever instrument the Chief Executive so desires.
As previously mentioned, the Senate has a role in ensuring that treaties or international
agreements the President enters into, as contemplated in Section 21 of Article VII of the
Constitution, obtain the approval of two-thirds of its members.

Xxx

The responsibility of the President when it comes to treaties and international agreements
under the present Constitution is therefore shared with the Senate. X x x (Rene A.V. Saguisag, et
al. v. Executive Secretary Paquito N. Ochoa, Jr., et al., G.R. No. 212426, Jan. 12, 2016, En Banc
[Sereno, CJ])

Who has the Power to Ratify a Treaty?

In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed,
in the legislature. The role of the Senate is limited only to giving or withholding its consent, or
concurrence, to the ratification. (BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary
Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

With respect to the Visiting Forces Agreement (VFA) entered into between the Philippines and
the USA in 1998, Section 25, Article XVIII of the Constitution applies, it being a special provision

Section 21, Article VII deals with treaties or international agreements in general, in which case,
the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to
make the subject treaty, or international agreement, valid and binding on the part of the
Philippines. This provision lays down the general rule on treaties or international agreements
and applies to any form of treaty with a wide variety of subject matter, such as, but not limited
to, extradition or tax treaties or those economic in nature. All treaties or international
agreements entered into by the Philippines, regardless of subject matter, coverage, or
particular designation or appellation, requires the concurrence of the Senate to be valid and
effective.

In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve
the presence of foreign military bases, troops or facilities in the Philippines. Under this
provision, the concurrence of the Senate is only one of the requisites to render compliance with
the constitutional requirements and to consider the agreement binding on the Philippines.
Section 25, Article XVIII further requires that “foreign military bases, troops, or facilities” may
be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified
by a majority of the votes cast in a national referendum held for that purpose if so required by
Congress, and recognized as such by the other contracting State.

Xxx

On the whole, the VFA is an agreement which defines the treatment of United States troops
and personnel visiting the Philippines. It provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the United States and the Philippine
government in the matter of criminal jurisdiction, movement of vessels and aircraft,
importation and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign
military bases, troops, or facilities, should apply in the instant case. To a certain extent and in a
limited sense, however, the provisions of Section 21, Article VII will find applicability with
regard to the issue and for the sole purpose of determining the number of votes required to
obtain the valid concurrence of the Senate x x x.

It is a finely-imbedded principle in statutory construction that a special provision or law prevails

over a general one. Lex specialis derogat generali. (BAYAN [Bagong Alyansang Makabayan] v.
Executive Secretary Ronaldo Zamora, G.R. No. 138570 and Companion Cases, Oct. 10, 2000, 342
SCRA 449, 481-492, En Banc [Buena])

Despite the President’s roles as defender of the State and sole authority in foreign relations, the
1987 Constitution expressly limits his ability in instances when it involves the entry of foreign
military bases, troops or facilities. The initial limitation is found in Section 21

of the provisions on the Executive Department x x x. The specific limitation is given by Section
25 of the Transitory Provisions x x x.

It is quite plain that the Transitory Provisions of the 1987 Constitution intended to add to the
basic requirements of a treaty under Section 21 of Article VII. This means that both provisions
must be read as additional limitations to the President’s overarching executive functions in
matters of defense and foreign relations. (Rene A.V. Saguisag, et al. v. Executive Secretary
Paquito N. Ochoa, Jr., G.R. No. 212426, January 12, 2016, En Banc [Sereno, CJ])

The Power of the President to Enter into Executive Agreements

The power of the President to enter into binding executive agreements without Senate
concurrence is already well-established in this jurisdiction. That power has been alluded to in
our present and past Constitutions, in various statutes, in Supreme Court decisions, and during
the deliberations of the Constitutional Commission. X x x

As the sole organ of our foreign relations, and the constitutionally assigned chief architect of
our foreign policy, the President is vested with the exclusive power to conduct and manage the
country’s interface with other states and governments. Being the principal representative of
the Philippines, the Chief Executive speaks and listens for the nation; initiates, maintains, and
develops diplomatic relations with other states and governments; negotiates and enters into
international agreements; promotes trade, investments, tourism and other economic relations;
and settles international disputes with other states.

As previously discussed, this constitutional mandate emanates from the inherent power of the
President to enter into agreements with other stats, including the prerogative to conclude
binding executive agreements that do not require further Senate concurrence. The existence of
this presidential power is so well-entrenched that Section 5(2)(a), Article VIII of the
Constitution, even provides for a check on its exercise. X x x

In Commissioner of Customs v. Eastern Sea Trading (113 Phil. 333 [1961]) executive agreements
are defined as “international agreements embodying adjustments of detail carrying out well-
established national polices and traditions and those involving arrangements of a more or less
temporary nature.” In Bayan Muna v. Romulo, this Court further clarified that executive
agreements can cover a wide array of subjects that have various scopes and purposes. They are
no longer limited to the traditional subjects that are usually covered by executive agreements
as identified in Eastern Sea Trading. X x x

One of the distinguishing features of executive agreements is that their validity and effectivity
are not affected by a lack of Senate concurrence. This distinctive feature was recognized as
early as in Eastern Sea Trading (1961) x x x (Rene A.V. Saguisag, et al. v. Executive Secretary
Paquito N. Ochoa, Jr., G.R. No. 212426, January 12, 2016, En Banc [Sereno, CJ])

Discuss the Binding Effect of Treaties and Executive Agreements in International Law.
In international law, there is no difference between treaties and executive agreements in their
binding effect upon states concerned, as long as the functionaries have remained within their
powers. International law continues to make no distinction between treaties and executive
agreements: they are equally binding obligations upon nations. (BAYAN [Bagong Alyansang
Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc
[Buena])

The Enhanced Defense Cooperation Agreement (EDCA)

The fear that EDCA is a reincarnation of the U.S. bases so zealously protested by noted
personalities in Philippine history arises not so much from xenophobia but from a genuine
desire for self-determination, nationalism, and above all a commitment to ensure the
independence of the Philippine Republic from any foreign domination.

Mere fears, however, cannot curtail the exercise by the President of the Philippines of his
Constitutional prerogatives in respect of foreign affairs. They cannot cripple him when he
deems that additional security measures are made necessary by the times. X x x In the future,
the Philippines must navigate a world in which armed forces fight with increasing sophistication
in both strategy and technology, while employing asymmetric warfare and remote weapons.

Additionally, our country is fighting a most terrifying enemy: the backlash of Mother Nature. X x
x

In order to keep the peace in its archipelago in this region of the world, and to sustain itself at
the same time against the destructive forces of nature, the Philippines will need friends. Who
they are, and what form the friendships will take, are for the President to decide. The only
restriction is what the Constitution itself prohibits. It appears that this overarching concern for
balancing constitutional requirements against the dictates of necessity was what led to EDCA.

As it is, EDCA is not constitutionally infirm. As an executive agreement, it remains consistent

with existing laws and treaties that it purports to implement. (Rene A.V. Saguisag, et al. v.
Executive Secretary Paquito N. Ochoa, Jr., G.R. No. 212426, January 12, 2016, En Banc [Sereno,
CJ])

Powers relative to Appropriation measures

The President shall submit to the Congress within thirty days from the opening of every regular
session, as the basis of the general appropriations bill, a budget of expenditures and sources of
financing, including receipts from existing and proposed revenue measures. (Sec. 22, Art. VII,
1987 Constitution)

The Congress may not increase the appropriations recommended by the President for the
operation of the Government as specified in the budget. The form, content, and manner of
preparation of the budget shall be prescribed by law. (Sec. 25[1], Art. VI, 1987 Constitution)

Emergency Power

In times of war or other national emergency, the Congress may, by law, authorizing the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn
by resolution of the Congress, such powers shall cease upon the next adjournment thereof.
(Section 23[2], Article VI, 1987 Constitution)

The Judicial Department (Article VIII, 1987 Constitution)

The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government. (Section 1, Article VIII, 1987 Constitution)

Thus, the Constitution vests judicial power in the Court and in such lower courts as may be
established by law. In creating a lower court, Congress concomitantly determines the
jurisdiction of that court, and that court, upon its creation, becomes by operation of the
Constitution one of the repositories of judicial power. However, only the Court is a
constitutionally created court, the rest being created by Congress in its exercise of the
legislative power.

The Constitution states that judicial power includes the duty of the courts of justice not only “to
settle actual controversies involving rights which are legally demandable and enforceable” but
also “to determine whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the Government.” It has
thereby expanded the concept of judicial power, which up to then was confined to its
traditional ambit of settling actual controversies involving rights that were legally demandable
and enforceable.

The background and rationale of the expansion of judicial power under the 1987 Constitution
were laid out during the deliberations of the 1986 Constitutional Commission by Commissioner
Roberto R. Concepcion (a former Chief Justice of the Philippines) in his sponsorship of the
proposed provisions on the Judiciary.

Our previous Constitutions equally recognized the extent of the power of judicial review and
the great responsibility of the Judiciary in maintaining the allocation of powers among the three
great branches of the Government. (Maria Carolina P. Araullo, et al. v. Benigno Simeon C.
Aquino III, et al. G.R. No., 209287, July 1, 2014, En Banc [Bersamin])

Judicial Power and the Political Question Doctrine

The Political Question Doctrine

Baker v. Carr remains the starting point for analysis under the political question doctrine.In
Tanada v. Cuenco, we held that political questions refer “to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the wisdom, not legality of a
particular measure.” (Vinuya, et al. v. The Honorable Executive Secretary Alberto G. Romulo, et
al., G.R. No. 162230, April 28. 2010, En Banc [Del Castillo])

Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No. 225973,
November 8, 2016, En Banc (Peralta)

The petitioners failed to show that President Duterte committed grave abuse of discretion
when he allowed the burial of former President Ferdinand E. Marcos at the “Libingan ng mga
Bayani (LNMB).”

Held:

In sum, there is no clear constitutional or legal basis to hold that there was a grave abuse of
discretion amounting to lack or excess of jurisdiction which would justify the Court to interpose
its authority to check and override an act entrusted to the judgment of another branch. Truly,
the President’s discretion is not totally unfettered. X x x. At bar, President Duterte x x x acted
within the bounds of the law and jurisprudence, Notwithstanding the call of human rights
advocate, the Court must uphold what is legal and just. And that is not to deny Marcos of his
rightful place at the LNMB. For even the Framers of our Constitution intend that full respect for
human rights is available at any stage of a person’s development, from the time he or she
becomes a person to the time he or she leaves this earth.

There are certain things that are better left for history – not this Court – to adjudge. The Court
could only do so much in accordance with clearly established rules and principles. Beyond that,
it is ultimately for the people themselves, as the sovereign, to decide, a task that may require
the better perspective that the passage of time provides.
Vinuya, et. al. v. The Honorable Executive Secretary Alberto G. Romulo, et. al., G.R. No. 162230,
April 28. 2010, En Banc (Del Castillo)

The SC may not compel the President to take up the cause of the petitioners (comfort women
during World War II) against Japan. That will violate the doctrine of separation of powers for
that is a political question – a question in regard to which full discretionary authority has been
delegated by the Constitution to the President as the chief architect of our foreign policy and as
the spokesman of the nation in matters of foreign

relations. The most that the SC may do is to exhort her, to urge her to take up petitioners cause
– but not to compel her.

In matters of foreign policy, the Executive and the Judiciary must speak with just one voice to
avoid serious embarrassments and strained relations with foreign countries. Elaborating, the
Court held:

“To be sure, not all cases implicating foreign relations present political questions, and courts
certainly possess the authority to construe or invalidate treaties and executive agreements.
However, the question whether the Philippine government should espouse claims of its
nationals against a foreign government is a foreign relations matter, the authority for which is
demonstrably committed by our Constitution not to the courts but to the political branches. In
this case, the Executive Department has already decided that it is to the best interest of the
country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace
of 1951. The wisdom of such decision is not for the courts to question.

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

“X x x

“The Executive Department has determined that taking up petitioners’ cause would be inimical
to our country’s foreign policy interests, and could disrupt our relations with Japan, thereby
creating serious implications for stability in this region. For us to overturn the Executive
Department’s determination would mean an assessment of the foreign policy judgments by a
coordinate political branch to which authority to make that judgment has been constitutionally
committed.

Requisites for a Proper Exercise by the Court of its Power of Judicial Review

The prevailing rule in constitutional litigation is that no question involving the constitutionality
or validity of a law or governmental act may be heard and decided by the Court unless there is
compliance with the legal requisites for judicial inquiry, namely: (a) there must be an actual
case or controversy calling for the exercise of judicial power; (b)

the person challenging the act must have the standing to question the validity of the subject act
or issuance; (c) the question of constitutionality must be raised at the earliest opportunity; and
(d) the issue of constitutionality must be the very lis mota of the case. Of these requisites, case
law states that the first two are the most important. (Belgica, et al. v. Exec. Sec. Paquito N.
Ochoa, et al., G.R. No. 208566, 710 SCRA 1, 89, Nov. 19, 2013, En Banc [Perlas-Bernabe])
It is well-settled that no question involving the constitutionality or validity of a law or
governmental act may be heard and decided by the Court unless the following requisites for
judicial inquiry are present: (a) there must be an actual case of controversy calling for the
exercise of judicial power; (b) the person challenging the act must have the standing to
question the validity of the subject or issuance; (c) the question of constitutionality must be
raised at the earliest opportunity; and (d) the issue of constitutionality must be the very lis
mota of the case. In this case, the absence of the first two, which are the most essential,
renders the discussion of the last two superfluous. (Saturnino C. Ocampo, et al. v. Rear Admiral
Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016, En Banc [Peralta])

The Meaning of an “Actual Case or Controversy”

An “actual case or controversy” is one which involves a conflict of legal rights, an assertion of
opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or
abstract difference or dispute. There must be contrariety of legal rights that can be interpreted
and enforced on the basis of existing law or jurisprudence. Related to the requisite of an actual
case or controversy is the requisite of “ripeness,” which means that something had been
accomplished or performed by either branch before a court may come into the picture, and the
petitioner must allege the existence of an immediate or threatened injury to itself as a result of
the challenged action. Moreover, the limitation on the power of judicial review to actual cases
and controversies carries the assurance that the courts will not intrude into areas committed to
the other branches of the government. Those areas pertain to questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or executive branch of the
government. As they are concerned with questions of policy and issues dependent upon the
wisdom, not legality of a particular measure, political questions used to be beyond the ambit of
judicial review. However, the scope of the political question doctrine has been limited by
Section 1 of Article VIII of the 1987 Constitution when it vested in the judiciary the power to
determine whether or not there has been grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the Government. (Saturnino C.
Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016,
En Banc [Peralta])An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the
court would amount to an advisory opinion. (Republic Telecommunications Holding, Inc. v.
Santiago, 556 Phil. 83, 91-92 [2001]) The rule is that courts do not sit to adjudicate mere
academic questions to satisfy scholarly interest, however intellectually challenging. The
controversy must be justiciable – definite and concrete, touching on the legal relations of
parties having adverse legal interests. In other words, the pleadings must show an active
antagonistic assertion of a legal right, on the one hand, and a denial thereof, on the other; that
is, it must concern a real, tangible and not merely a theoretical question or issue. There ought
to be an actual and substantial controversy admitting of specific relief through a decree
conclusive in nature, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts. (Information Technology Foundation of the Philippines v.
Commission on Elections, 499 Phil. 281, 304-305 [2005])

Corollary to the requirement of an actual case or controversy is the requirement of ripeness

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

The Moot and Academic Principle

An action is considered “moot” when it no longer presents a justiciable controversy because

the issued involved have become academic or dead, or when the matter in dispute has already
been resolved and hence, one is not entitled to judicial intervention unless the issue is likely to
be raised again between the parties (Santiago v. Court of Appeals, 348 Phil. 792, 800 [1998]).
Time and again, courts have refrained from even expressing an opinion in a case where the
issues have become moot and academic, there being no more justiciable controversy to speak
of, so that a determination thereof would be of no practical use or value (Barbieto v. Court of
Appeals, GR No. 184646, October 30, 2009, 604 SCRA 825, 840). (International Service for the
Acquisition of Agri-biotech Applications, Inc. v. Greenpeace Southeast Asia (Philippines), et al.,
GR No. 209271, December 8, 2015, En Banc [Villarama])
Exceptions to the Moot and Academic Principle

Even on the assumption of mootness, jurisprudence dictates that “the ‘moot and academic’
principle is not a magical formula that can automatically dissuade the Court in resolving a case.”
The Court will decide cases, otherwise moot, if first, there is a grave violation of the
Constitution; second, the exceptional character of the situation and the paramount public
interest is involved; third, when the constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable
of repetition yet evading review. (Belgica, et al. v. Exec. Sec. Paquito N. Ochoa, et al., G.R. No.
208566, 710 SCRA 1, 93, Nov. 19, 2013, En Banc [Perlas- Bernabe])

Locus Standi

Defined as a right of appearance in a court of justice on a given question, locus standi requires
that a party alleges such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court depends
for illumination of difficult constitutional questions. Unless a person has sustained or is in
imminent danger of sustaining an injury as a result of an act complained of, such party has no
standing. (Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No.
225973, November 8, 2016, En Banc [Peralta])

Locus standi is “a right of appearance in a court of justice on a given question (Bayan Muna v.
Romulo, G.R. No. 159618, February 1, 2011, 641 SCRA 244, 254, citing David v. Macapagal-
Arroyo, 522 Phil. 705, 755 [2006]). Specifically, it is “a party’s personal and substantial interest
in a case where he has sustained or will sustain direct injury as a result” of the act being
challenged, and “calls for more than just a generalized grievance.” (Id., citing Jumamil v. Café,
507 Phil. 455, 465 [2005], citing Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 632-
633 [2000]) However, the rule on standing is a procedural matter which this Court has relaxed
for non-traditional plaintiffs like ordinary citizens, taxpayers and legislators when the public
interest so requires, such as when the subject matter of the controversy is of transcendental
importance, of overreaching significance to society, or of paramount public interest. (Biraogo v.
Philippine Truth Commission of 2010, G.R. Nos. 192935 & 193036, December 7, 2010, 637 SCRA
78, 151 citing Social Justice Society [SJS] v. Dangerous Drugs Board, et al., 591 Phil. 393404
[2008]; Tatad v. Secretary of the Department of Energy, 346 Phil. 321 [1997] and De Guia v.
COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.)

In the landmark case of Oposa v. Factoran, Jr., G.R. No. 101083, July 30, 1993, 224 SCRA 792,
we recognized the “public right” of citizens to “a balanced and healthful ecology which, for the
first time in our constitutional history, is solemnly incorporated in the fundamental law.” We
declared that the right to a balanced and healthful ecology need not be written in the
Constitution for it is assumed, like other civil and political rights guaranteed in the Bill of Rights,
to exist from the inception of mankind and it is an issue of transcendental importance with
intergenerational implications. Such right carries with it the correlative duty to refrain from
impairing the environment. (Id. At 804-805) (Most Rev. Pedro D. Arigo, et al. v. Scott H. Swift, et
al., G.R. No. 206510, September 16, 2014, En Banc [Villarama, Jr.])

Taxpayers’ Suit

Taxpayers have been allowed to sue where there is a claim that public funds are illegally
disbursed or that public money is being deflected to any improper purpose, or that public funds
are wasted through the enforcement of an invalid or unconstitutional law. (Saturnino C.
Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016,
En Banc [Peralta])

Suits Filed by Concerned Citizens

As concerned citizens, petitioners are also required to substantiate that the issues are of
transcendental significance, or of paramount public interest. In cases involving such issues, the
imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity
for prudence. (Saturnino C. Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No.
225973, November 8, 2016, En Banc [Peralta])

Suits Filed by Members of Congress

In the absence of a clear showing of any direct injury to their person or the institution to which
they belong, their standing as members of the Congress cannot be upheld. (Saturnino C.
Ocampo, et al. v. Rear Admiral Ernesto C. Enriquez, et al., G.R. No. 225973, November 8, 2016,
En Banc [Peralta])

The Liberalization of the Rules on Legal Standing

The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and
generations yet unborn, is now enshrined in the Rules which allows the filing of a citizen suit in
environmental cases. The provision on citizen suits in the Rules “collapses the traditional rule
on personal and direct interest, on the principle that humans are stewards of nature.” (See
ANNOTATION TO THE RULES OF PROCEDURE FOR ENVIRONMENTAL CASES) (Most Rev. Pedro
D. Arigo, et al. v. Scott H. Swift, et al., G.R. No. 206510, September 16, 2014, En Banc [Villarama,
Jr.])

Facial Challenge

James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et al., (GR No. 204819, April 8, 2014, En
Banc [Mendoza])

In United States (US) constitutional law, a facial challenge, also known as a First Amendment
Challenge, is on that is launched to assail the validity of statutes concerning not only protected
speech, but also all other rights in the First Amendment (See United States v. Salerno, 481 U.S.
739 [1987]). These include religious freedom, freedom of the press, and the right of the people
to peaceably assemble, and to petition the Government for a redress of grievances. After all,
the fundamental right to religious freedom, freedom of the press and peaceful assembly are
but component rights of the right to one’s freedom of expression, as they are modes which
one’s thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been generally
maintained, albeit with some modifications. While this Court has withheld the application of
facial challenges to strictly penal statutes (Romualdez v. Commission on Elections, 576 Phil. 357
[2008]; Romualdez v. Sandiganbayan, 479 Phil. 265 [2004]; Estradfa v. Sandiganbayan, 421 Phil.
290 [2001]), it has expanded its scope to cover statutes not only regulating free speech, but
also those involving religious freedom, and other fundamental rights (Resolution, Romualdez v.
Commission on Elections, 594 Phil. 305, 316 [2008]). The underlying reason for this modification
is simple. For unlike its counterpart in the U.S., this Court, under its expanded jurisdiction, is
mandated by the Fundamental Law not only to settle actual controversies involving rights which
are legally demandable and enforceable, but also to determine whether or not there has been a

grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the Government. Verily, the framers of Our Constitution envisioned a
proactive Judiciary, ever vigilant with its duty to maintain the supremacy of the Constitution.

Consequently, considering that the foregoing petitions have seriously alleged that the
constitutional human rights to life, speech and religion and other fundamental rights
mentioned above have been violated by the assailed legislation, the Court has authority to take
cognizance of these kindred petitions and to determine if the RH (Reproductive Health) Law can
indeed pass constitutional scrutiny. To dismiss these petitions on the simple expedient that
there exist no actual case or controversy, would diminish this Court as a reactive branch of
government, acting only when the Fundamental Law has been transgressed, to the detriment
of the Filipino people.

Jose Jesus M. Disini, Jr., et al. v. The Secretary of Justice, et al., G.R. No,. 203335, Feb. 11, 2014,
En Banc (Abad)

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on
the void-for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be
carefully delineated. As Justice Antonio T. Carpio explained in his dissent in Romualdez v.
Commission on Elections, “we must view these statements of the Court on the inapplicability of
the overbreadth and vagueness doctrines to penal statutes as appropriate only insofar as these
doctrines are used to mount “facial” challenges to penal statutes not involving free speech.”
In an “as applied” challenge, the petitioner who claims a violation of his constitutional right can
raise any constitutional ground – absence of due process, lack of fair notice, lack of
ascertainable standards, overbreadth, or vagueness. Here, one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. It prohibits one from
assailing the constitutionality of the statute based solely on the violation of the rights of third
persons not before the court. This rule is also known as the prohibition against third- party
standing.

The Void-for-vagueness Doctrine and the Doctrine of Overbeadth

Southern Hemisphere Engagement Network, Inc., et al. v. Anti-Terrorism Council, et al. (G.R.
Nos. 178552, 178581, 178890, 179157, & 179461, 5 October 2010, En Banc (Carpio-Morales)

In addition, a statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its meaning and differ as
to its application. The overbreadth doctrine, meanwhile, decrees that a governmental purpose
to control or prevent activities constitutionally subject to state regulations may not be achieved
by means which sweep unnecessarily broadly and thereby invade the area of protected
freedoms. Distinguished from an as-applied challenge which considers only extant facts
affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its
flaws and defects, not only on the basis of its actual operation to the parties, but also on the
assumption or prediction that its very existence may cause others not before the court to
refrain from constitutionally protected speech or activities.

The most distinctive feature of the overbreadth technique is that it marks an exception to some
of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute
is unconstitutional as applied to him or her. Moreover, challengers to a law are not permitted
to raise the rights of third parties and can only assert their own interests. In overbreadth
analysis, those rules give way; challenges are permitted to raise the rights of third parties; and
the court invalidates the entire statute “on its fact,” not merely “as applied for” so that the
overbreadth law becomes unenforceable until a properly authorized court construes it more
narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the
concern with the “chilling” deterrent effect of the overbreadth statute on third parties not
courageous enough to bring suit. The Court assumes that an overbreadth law’s “very existence
may cause others not before the court to refrain from constitutionally protected speech or
expression.” An overbreadth ruling is designed to remove that deterrent effect on the speech of
those third parties.

The rule established in our jurisdiction is, only statutes on free speech, religious freedom, and
other fundamental rights may be facially challenged. Under no case may ordinary penal
statutes be subjected to a facial challenge. Criminal statutes have general in terrorem effect
resulting from their very existence, and, if facial challenge is allowed for this reason alone, the
State may well be prevented from enacting laws against socially harmful conduct. In the area of
criminal law, the law cannot take chances as in the area of free speech.X x x

Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter
neither the intent of the law to punish socially harmful conduct nor the essence of the whole
act as conduct and not free speech. It is true that the agreements and course of conduct were
in most instances brought about through speaking or writing. But it has never been deemed an
abridgement of freedom of speech or press to make a course of conduct illegal merely because
that conduct was, in part, initiated, evidenced, or carried out by means of language, either
spoken, written, or printed. Such an expansive interpretation of the constitutional guarantees
of speech and press would make it practically impossible ever to enforce laws against
agreements in restraint of trade as well as many other agreements and conspiracies deemed
injurious to society.

The Rule-Making Power of the Supreme Court

The Supreme Court shall have the following powers:

Xxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of
the same grade, and shall not diminish, increase, or modify substantive rights. Rules of
procedure of special courts

and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
(Section 5[5], 1987 Constitution)

In In Re: Petition for Recognition of the Exemption of the Government Service Insurance System
from Payment of Legal Fees, The Court ruled that the provision in the Charter of the GSIS, i.e.,
Section 39 of Republic Act No. 8291, which exempts it from “all taxes, assessments, fees,
charges or duties of all kinds,” cannot operate to exempt it from the payment of legal fees. This
was because, unlike the 1935 and 1973 Constitutions, which empowered Congress to repeal,
alter or supplement the rules of the Supreme Court concerning pleading, practice and
procedure, the 1987 Constitution removed this power from Congress. Hence, the Supreme
Court now has the sole authority to promulgate rules concerning pleading, practice and
procedure in all courts. (GSIS v. Heirs of Fernando F. Caballero, G.R. No. 158090, 632 SCRA 5,
14-15, Oct. 4, 2010, 2nd Div. [Peralta])

CONSTITUTIONAL LAW

Police Power

The Power of Eminent Domain

The Constitution expressly provides in Article III, Section 9 that “private property shall not be
taken for public use without just compensation.” The provision is the most important
protection of property rights in the Constitution. This is a restriction on the general power of
the government to take property. The constitutional provision is about ensuring that the
government does not confiscate the property of some to give it to others. In part too, it is about
loss spreading. If the government takes away a person’s property to benefit society, the society
should pay. The principal purpose of the guarantee is “to bar the Government from forcing
some people alone to bear public burdens which, in all fairness and justice, should be borne by
the public as a whole.” (City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005; cited in
Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., G.R. No.
189185, August 16, 2016, En Banc [Bersamin])

The Two (2) Types of “Taking” under the Power of Eminent Domain

There are two different types of taking that can be identified. A “possessory” taking occurs
when the government confiscates or physically occupies property. A “regulatory” taking occurs
when the government’s regulation leaves no reasonable economically viable use of the
property. (City of Manila v. Laguio, Jr., G.R. No. 118127, April 12, 2005)

In Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al. (G.R. No.
189185, August 16, 2016), it was argued that the requirement of maintaining a buffer zone in all
agricultural entities under Section 6 of an ordinance of Davao City prohibiting aerial spraying
unduly deprives all agricultural landowners in that City of the beneficial use of their property
amounting to taking without just compensation. The Supreme Court did not agree. Citing City of
Manila v. Laguio, Jr. (G.R. No. 118127, April 12,

2005), it clarified that taking only becomes confiscatory if it substantially divests the owner of
the beneficial use of its property. According to the Court:

The establishment of the buffer zone is required for the purpose of minimizing the effects of
aerial spraying within and near the plantations. Although Section 3(e) of the ordinance requires
the planting of diversified trees within the identified buffer zone, the requirement cannot be
construed and deemed as confiscatoy requiring payment of just compensation. A landowner
may only be entitled to compensation if the taking amounts to a permanent denial of all
economically beneficial or productive uses of the land. The respondents cannot be said to be
permanently and completely deprived of their landholdings because they can still cultivate or
make other productive uses of the areas to be identified as the buffer zones.

The Power of Taxation

THE BILL OF RIGHTS

The Right to Due Process of Law

Section 1 of the Bill of Rights lays down what is known as the “due process clause” of the
Constitution.

In order to fall within the aegis of this provision, two conditions must concur, namely, that
there is a deprivation and that such deprivation is done without proper observance of due
process. When one speaks of due process of law, however, a distinction must be made between
matters of procedure and matters of substance. In essence, procedural due process “refers to
the method or manner by which the law is enforced,” while substantive due process “requires
that the law itself, not merely the procedures by which the law would be enforced, is fair,
reasonable, and just.” (De Leon, Textbook on the Philippine Constitution, 1991, p. 81) (Corona
v. United Harbor Pilots Association of the Phils., 283 SCRA 31, Dec. 12, 1997 [Romero])

The due process clauses in the American and Philippine Constitutions are not only worded in
exactly identical language and terminology, but more importantly, they are alike in what their
respective Supreme Courts have expounded as the spirit with which the provisions are
informed and impressed, the elasticity in their interpretation, their dynamic and resilient
character which make them capable of meeting every modern problem, and their having been
designed from earliest time to the present to meet the exigencies of an undefined and
expanding future. The requirements of due process are interpreted in both, the United States
and the Philippines as not denying to the law the capacity for progress and improvement.
Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead
prefer to have the meaning of the due process clause “generally ascertained by the process of
inclusion and exclusion in the course of the decisions of cases as they arise (Twining v. New
Jersey, 211 U.S. 78). Capsulized, it refers to “the embodiment of the sporting idea of fair play”
(Ermita-Malate Hotel and Motel Owner’s Association v. City Mayor

of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which
inhere in the very idea of free government (Holden v. Hardy, 169 U.S. 366).

Due process is comprised of two components – substantive due process which requires the
intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or
property, and procedural due process which consists of the two basic rights of notice and
hearing, as well as the guarantee of being heard by an impartial and competent tribunal (Cruz,
Constitutional Law, 1993 Ed., pp. 102-106).

True to the mandate of the due process clause, the basic rights of notice and hearing pervade
not only in criminal and civil proceedings, but in administrative proceedings as well. Non-
observance of these rights will invalidate the proceedings. Individuals are entitled to be notified
of any pending case affecting their interests, and upon notice, they may claim the right to
appear therein and present their side and to refute the position of the opposing parties (Cruz,
Philippine Administrative Law, 1996 ed., p. 64). (Secretary of Justice v. Lantion, 322 SCRA 160,
186-188, Jan. 18, 2000, En Banc [Melo])

Instances when Prior Notice or Hearing may be dispensed with

These twin rights may, however, be considered dispensable in certain instances, such as:1. In
proceedings where there is an urgent need for immediate action, like the summary abatement
of a nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant
facing administrative charges (Section 63, Local Government Code, B.P. Blg. 337), the
padlocking of filthy restaurants or theaters showing obscene movies or like establishments
which are immediate threats to public health and decency, and the cancellation of a passport of
a person sought for criminal prosecution;
2. Where there is tentativeness of administrative action, that is, where the respondent is not
precluded from enjoying the right to notice and hearing at a later time without prejudice to the
person affected, such as the summary distraint and levy of the property of a delinquent
taxpayer, and the replacement of a temporary appointee; and

3. Where the twin rights have previously been offered but the right to exercise them had not
been claimed. (Secretary of Justice v. Lantion, 322 SCRA 160, 186- 188, Jan. 18, 2000, En Banc
[Melo])

The Void-for-vagueness Doctrine

The law should be declared void as it is vague, i.e., it lacks comprehensible standards so that
men of ordinary intelligence will probably have to guess as to its meaning and differ in its
application.

Such vague law is repugnant to the Constitution in two (2) respects: one, it violates due process
as it fails to afford persons fair notice of the conduct to avoid and; second, it gives law enforcers
unbridled discretion in carrying out provisions and, therefore, in effect, it becomes an arbitrary
flexing of the government’s muscle.

However, for this to be validly invoked, the act or law must be utterly vague on its face that it
cannot be clarified either by a saving clause or by statutory construction.

Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., G.R. No.
189185, August 16, 2016, En Banc (Bersamin)

An Ordinance enacted by the City of Davao prohibiting aerial spraying in all agricultural entities
in that City and requiring affected parties to shift to other modes of pesticide application within
a three-month period under pain of penalty was declared unconstitutional as it violates due
process for being oppressive.
Held:

The impossibility of carrying out a shift to another mode of pesticide application within three
months can readily be appreciated given the vast area of the affected plantations and the
corresponding resources required therefor. X x x

Xxx

The required civil works for the conversion to truck-mounted boom spraying alone will
consume considerable time and financial resources given the topography and geographical
features of the plantations. As such, the completion could not be completed within the short
timeframe of three months. Requiring the respondents and other affected individuals to comply
with the consequences of the ban within the three-month period under pain of penalty like
fine, imprisonment and even cancellation of business permits would definitely be oppressive as
to constitute abuse of police power.”

Extradition and Due Process

Secretary of Justice v. Honorable Ralph Lantion, October 17, 2000 Resolution of the Motion for
Reconsideration

During the initial evaluation stage at the Department of Justice of an extradition proceeding, an
extraditee is not yet entitled to the documents he was requesting (like copy of request for his
extradition from the requesting government, and supporting documents and evidences) so that
he may be able to prepare for his defense. That is because an extradition is “sui generis;” it is
not similar to a criminal proceeding which will call into operation all of the rights of an accused
as guaranteed by the Bill of Rights.
He may be given copies of those documents once the petition for his extradition is filed in the
RTC. This is but a “soft restraint” on his right to due process at that stage. There is no denial of
due process for as long as fundamental fairness is assured a party.

The Right to the Equal Protection of the Laws

The constitutional right to equal protection requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities imposed. It requires
public bodies and institutions to treat similarly situated individuals in a similar manner. The
guarantee of equal protection secures every person within the State’s jurisdiction against
intentional and arbitrary discrimination, whether occasioned by the express terms of a statute
or by its improper execution through the State’s duly constituted authorities. The concept of
equal justice under the law demands that the State governs impartially and not to draw
distinctions between individuals solely on differences that are irrelevant to the legitimate
governmental objective.

Equal protection neither requires universal application of laws to all persons or things without
distinction, nor intends to prohibit legislation by limiting the object to which it is directed or by
the territory in which it is to operate. The guaranty of equal protection envisions equality
among equals determined according to a valid classification. If the groupings are characterized
by substantial distinctions that make real differences, one class may be treated and regulated
differently from another. In other words, a valid classification must be: (1) based on substantial
distinctions; (2) germane to the purposes of the law; (3) not limited to existing conditions only;
and (4) equally applicable to all members of the class. (Mosqueda, et al. v. Pilipino Banana
Growers & Exporters Association, Inc., et al., G.R. No. 189185, August 16, 2016, En Banc
[Bersamin])

The Three (3) Levels of Scrutiny to Determine the Propriety of the Classification under the Equal
Protection Clause

The reasonability of a distinction and sufficiency of the justification given by the Government
for its conduct is gauged by using the means-end test. This test requires analysis of: (1) the
interests of the public that generally requires its exercise, as distinguished from those of a
particular class; and (2) the means employed that are reasonably necessary for the
accomplishment of the purpose and are not unduly oppressive upon individuals. To determine
the propriety of the classification, courts resort to three levels of scrutiny, viz: the rational
scrutiny, intermediate scrutiny and strict scrutiny.

The rational basis scrutiny (also known as the rational relation test or rational basis test)
demands that the classification reasonably relate to the legislative purpose. The rational basis
test often applies in cases involving economics or social welfare, or to any other case not
involving a suspect class.

When the classification puts a quasi-suspect class at a disadvantage, it will be treated under
intermediate or heightened review. Classifications based on gender or illegitimacy receives
intermediate scrutiny. To survive intermediate scrutiny, the law must

not only further an important governmental interest and be substantially related to that
interest, but the justification for the classification must be genuine and must not depend on
broad generalizations.

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

In Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., (G.R. No.
189185, August 16, 2016, En Banc [Bersamin]), the Court, applying the rational basis test, ruled
that the ordinance of Davao City prohibiting aerial spraying in all agricultural entities therein as
the practice produces pesticide drift causing inconvenience and harm to the residents and
degrades the environment, violates the equal protection clause, hence, should be declared
unconstitutional. The Court Held:
The occurrence of pesticide drift is not limited to aerial spraying but results from the conduct of
any mode of pesticide application. Even manual spraying or truck-mounted boom spraying
produces drift that may bring about the same inconvenience, discomfort and alleged health
risks to the community and to the environment. A ban against aerial spraying does not weed
out the harm that the ordinance seeks to achieve. In the process, the ordinance suffers from
being “underinclusive” because the classification does not include all individuals tainted with
the same mischief that the law seeks to eliminate. A classification that is drastically
underinclusive with respect to the purpose or end appears as an irrational means to the
legislative end because it poorly serves the intended purpose of the law.

Xxx

Aside from its being underinclusive, the assailed ordinance also tends to be “overinclusive”
because its impending implementation will affect groups that have no relation to the
accomplishment of the legislative purpose. Its implementation will unnecessarily impose a
burden on a wider range of individuals than those included in the intended class based on the
purpose of the law.

It can be noted that the imposition of the ban is too broad because the ordinance applies
irrespective of the substance to be aerially applied and irrespective of the agricultural activity to
be conducted. The respondents admit that they aerially treat their plantations not only with
pesticides but also vitamins and other substances. The imposition of the ban against aerial
spraying of substances other than fungicides and regardless of the agricultural activity being
performed becomes unreasonable inasmuch as it patently bears no relation to the purported
inconvenience, discomfort, health risk and environmental danger which the ordinance seeks to
address. The burden now will become more onerous to various entities, including the
respondents

and even others with no connection whatsoever to the intended purpose of the ordinance.”

Xxx
The overinclusiveness of Ordinance No. 0309-07 may also be traced to its Section 6 by virtue of
its requirement for the maintenance of the 30-meter buffer zone. This requirement applies
regardless of the area of the agricultural landholding, geographical location, topography, crops
grown and other distinguishing characteristics that ideally should bear a reasonable relation to
the evil sought to be avoided. As earlier stated, only large banana plantations could rely on
aerial technology because of the financial capital required therefor.

The establishment and maintenance of the buffer zone will become more burdensome to the
small landholders because: (1) they have to reserve the 30-meter belt surrounding their
property; (2) that will have to be identified through GPS; (3) the metes and bounds of the buffer
zone will have to be plotted in a survey plan for submission to the local government unit; and
(4) will be limited as to the crops that may be cultivated therein based on the mandate that the
zone shall be devoted to “diversified trees” taller than what are being grown therein. The
arbitrariness of Section 6 all the more becomes evident when the land is presently devoted to
the cultivation of root crops and vegetables, and trees or plants slightly taller than the root
crops and vegetables are then to be planted. It is seriously to be doubted whether such
circumstance will prevent the occurrence of the drift to the nearby residential areas.

Section 6 also subjects to the 30-meter buffer zone requirement agricultural entities engaging
in organic farming, and do not contribute to the occurrence of pesticide drift. The classification
indisputably becomes arbitrary and whimsical.

A substantially overinclusive or underinclusive classification tends to undercut the

governmental claim that the classification serves legitimate political ends. Where
overinclusiveness is the problem, the vice is that the law has a greater discriminatory or
burdensome effect than necessary. In this light, we strike down Section 5 and Section 6 of
Ordinance 0309-07 for carrying an invidious classification, and for thereby violating the Equal
Protection Clause.

Xxx
Evidently, the ordinance discriminates against large farmholdings that are the only ideal venues
for the investment of machineries and equipment capable of aerial spraying. It effectively
denies the affected individuals the technology aimed at efficient and cost-effective operations
and cultivation not only of banana but of other crops as well. The prohibition against aerial
spraying will seriously hamper the operations of the banana plantations that depend on aerial
technology to arrest the spread of the Black Sigatoka disease and other menaces that threaten
their

production and harvest. X x x the effect of the ban will not be limited to Davao City in view of
the significant contribution of banana export trading to the country’s economy.

The discriminatory character of the ordinance makes it oppressive and unreasonable in light of
the existence and availability of more permissible and practical alternatives that will not
overburden the respondents and those dependent on their operations as well as those who
stand to be affected by the ordinance. X x x

The Right against Unreasonable Searches and Seizures

Abdula v. Guiani

In a criminal proceeding, there are two (2) determinations of probable cause, i.e., one is made
by the prosecutor during preliminary investigation for the purpose of filing the criminal
information in court; and the other is made by the judge for the purpose of issuing a warrant of
arrest, or of a search warrant.

The determination of probable cause for the purpose of filing the criminal information in court
is an executive function. It is a function that belongs to the prosecutor, an officer under the
Department of Justice, a department under the executive branch. On the other hand, the
determination of probable cause for the purpose of issuing a warrant of arrest, or even that of a
search warrant, is a judicial function, because under Section 2 of the Bill of Rights of the
Constitution, only a judge may issue a warrant of arrest or of a search warrant. For this reason,
the judge is not bound by the determination of probable cause by the prosecutor. In fact, he
should not rely solely on the finding of probable cause by the prosecutor because he is
mandated by the Constitution to determine probable cause personally. He cannot abdicate the
performance of that function in favor of the prosecutor if he wanted to remain faithful to the
Constitution.

Government of the USA v. Judge Purganan

Prior notice or hearing is not required before a judge issues a warrant of arrest of an extraditee
once the petition for extradition is filed in court on two (2) basis, i.e., statutory (Sec. 6, P.D. No.
1069); and constitutional (Sec. 2, Art. III of the Bill of Rights).

On statutory basis

Section 6, P.D. No. 1069 (Extradition Law) provides that the moment the petition for extradition
is filed in the RTC, the judge shall cause the immediate issuance of a warrant of arrest. Hearing
entails sending of notices to opposing parties, and receiving facts and arguments from them.
Arrest subsequent to a hearing can no longer be considered “immediate.” The law could not
have intended the use of the word “immediate” a superfluity.

On constitutional basis

Even Section 2, Article III of the Bill of Rights does not require notice or hearing before a judge
issues a warrant of arrest. On the contrary, what the Constitution provides is

“after examination under oath or affirmation of the complainant (not of the accused) and the
witnesses he may produce.”

Search Incidental to a Lawful Arrest (Section 13, Rule 126, Rules of Court)
This is the most common among the instances of valid warrantless searches. The object of this
kind of warrantless search is to obtain object or effect of a crime, like the stolen wallet or the
knife used in hold-up.

The three (3) important features of this kind of warrantless search are:

1. In this kind if warrantless search, the arrest always precedes the search; the

process cannot be reversed; 2. The precedent arrest must always be lawful because, if the
precedent arrest is unlawful, the subsequent search, although it may have yielded positive
results, may never validate the unlawful arrest that preceded it; and 3. The search must be
limited or confined only to the immediate vicinity of the place

of the arrest. It may not be extended beyond that.

Valmonte v. De Villa

For searches at checkpoints to be valid, the following must be observed:

1. The checkpoint must be pre-announced; 2. It must be stationary; and 3. The search at

checkpoint must be limited to visual search only. An intrusive

search is not allowed

Social Justice Society v. Dangerous Drugs Board

The Mandatory Drug Testing under R.A. No. 9165 (The Comprehensive Dangerous Drugs Act)
does not constitute unreasonable search prohibited by the Constitution. It falls under the
category of an administrative search. In administrative searches, the strict probable cause
requirement is not applied.

People v. Leila Johnson

When one is at the nation’s airport and wanted to travel by air, he has no reasonable
expectation of privacy and can be subject to warrantless search. This is in view of increased
concern over airplane hijacking and terrorism.

In the later case of People v. Susan Canton, the SC held that this is now another instance of
valid warrantless search – warrantless searches at airports.

People v. Doria

The requisites for the “plain view” doctrine to be validly invoked are:

1. The law enforcement officer must have a valid justification for an intrusion, or is in

a position where he can view a particular area; 2. The discovery of the evidence in plain view
must be inadvertent; and 3. It is immediately apparent to him that the thing he sees is object of
a crime,

contraband, or subject to seizure.

It is clear that if the object is inside a closed container, “plain view” may not be invoked.
However, even if it inside a closed container but if due to the configuration of the container, or
due to its transparency, it can still be seen from the outside what is inside, “plain view” may still
be invoked.

The Right to Privacy

Is there a constitutional right to privacy?

The essence of privacy is the “right to be let alone.” In the 1965 case of Griswold v. Connecticut
(381 U.S. 479, 14 L. ed. 2D 510 [1965]), the United States Supreme Court gave more substance
to the right of privacy when it ruled that the right has a constitutional foundation. It held that
there is a right of privacy which can be found within the penumbras of the First, Third, Fourth,
Fifth and Ninth Amendments x x x. In the 1968 case of Morfe v. Mutuc (22 SCRA 424, 444-445),
we adopted the Griswold ruling that there is a constitutional right to privacy x x x.

Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and
enshrined in several provisions of our Constitution. (Morfe v. Mutuc, 22 SCRA 424, 444 [1968];
Cortes, The Constitutional Foundations of Privacy, p. 18 [1970]). It is expressly recognized in
Section 3(1) of the Bill of Rights x x x. Other facets of the right to privacy are protected in
various provisions of the Bill of Rights (viz: Secs. 1, 2, 6, 8, and 17. (Ople v. Torres, G.R. No.
127685, July 23, 1998 [Puno])

What are the zones of privacy recognized and protected in our laws?

The Civil Code provides that “[e]very person shall respect the dignity, personality, privacy and
peace of mind of his neighbors and other persons” and punishes as actionable torts several acts
by a person of meddling and prying into the privacy of another. It also holds a public officer or
employee or any private individual liable for damages for any violation of the rights and
liberties of another person, and recognizes the privacy of letters and other private
communications. The Revised Penal Code makes a crime the violation of secrets by an officer,
the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an
offense in special laws like the Anti-Wiretapping Law (R.A. 4200), the Secrecy of Bank Deposits
(R.A. 1405) and the Intellectual Property Code (R.A. 8293). The Rules of Court on privileged
communication likewise recognize the privacy of certain information (Section 24, Rule 130[c],
Revised Rules on Evidence). (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])

Jose Jesus M. Disini, Jr., et al. v. The Secretary of Justice, et al., G.R. No,. 203335, Feb. 11, 2014,
En Banc (Abad)

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution
as a facet of the right protected by the guarantee against unreasonable searches and seizures.
But the Court acknowledged its existence as early as 1968 in Morfe v. Mutuc, it ruled that the
right to privacy exists independently of its identification with liberty; it is in itself fully deserving
of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the “Zones of
Privacy.” The Court explained in “In the Matter of the Petition for Issuance of Writ of Habeas
Corpus of Sabio v. Senator Gordon” the relevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of
intrusion is impermissible unless excused by law and in accordance with customary legal
process. The meticulous regard we accord to these zones arises not only from our conviction
that the right to privacy is a “constitutional right” and “the right most valued by civilized men,”
but also from our adherence to the Universal Declaration of Human Rights which mandates
that, “no one shall be subjected to arbitrary interference with his privacy” and “everyone has
the right to the protection of the law against such interference or attacks.”

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable
searches and seizures, which is the basis of the right to be let alone, and (b) the right to privacy
of communication and correspondence.
In assessing the challenge that the State has impermissibly intruded into these zones of privacy,
a court must determine whether a person has exhibited a reasonable expectation of privacy
and, if so, whether that expectation has been violated by unreasonable government intrusion.

Freedom of Expression

Content-based restrictions on free speech, and content-neutral regulations

Content-based restrictions are imposed because of the content of the speech and are,
therefore, subject to the clear-and-present danger test. For example, a rule such as that
involved in Sanidad v. Comelec, prohibiting columnists, commentators, and announcers from
campaigning either for or against an issue in a plebiscite must have compelling reason to
support it, or it will not pass muster under strict scrutiny. These restrictions are censorial and
therefore they bear a heavy presumption of constitutional invalidity. In addition, they will be
tested for possible overbreadth and vagueness.

Content-neutral restrictions, on the other hand, like Sec. 11(b) of R.A. No. 6646, which prohibits
the sale or donation of print space and air time to political candidates during

the campaign period, are not concerned with the content of the speech. These regulations need
only a substantial governmental interest to support them. A deferential standard of review will
suffice to test their validity. The clear-and-present danger rule is inappropriate as a test for
determining the constitutional validity of laws, like Sec. 11(b) of R.A. No. 6646, which are not
concerned with the content of political ads but only with their incidents. To apply the clear-and-
present danger test to such regulatory measures would be like using a sledgehammer to drive a
nail when a regular hammer is all that is needed.

The test for this difference in the level of justification for the restriction of speech is that
content-based restrictions distort public debate, have improper motivation, and are usually
imposed because of fear of how people will react to a particular speech. No such reasons
underlie content-neutral regulations, like regulation of time, place and manner of holding public
assemblies under B.P. Blg. 880, the Public Assembly Act of 1985. (Osmena v. COMELEC, 288
SCRA 447, March 31, 1998 [Mendoza])

What is the most influential test for distinguishing content-based from content-neutral
regulations?

The United States Supreme Court held in United States v. O’ Brien:

[A] a governmental regulation is sufficiently justified (1) if it is within the constitutional power
of the government; (2) if it furthers an important or substantial governmental interest; (3) if the
governmental interest is unrelated to the suppression of free expression; and (4) if the
incidental restriction on alleged First Amendment freedoms (of speech, expression and press) is
no greater than is essential to the furtherance of that interest (391 U.S. 367, 20 L. Ed. 2df 692,
680 [1968] [bracketed numbers added])

This is so far the most influential test for distinguishing content-based from content- neutral
regulations and is said to have “become canonical in the review of such laws.” (G. Gunther & K.
Sullivan, Constitutional Law 1217 [13th ed. 1997]). It is noteworthy that the O’ Brien test has
been applied by this Court in at least two cases (Adiong v. Comelec, 207 SCRA 712 [1992];
Osmena v. Comelec, supra.).

Under this test, even if a law furthers an important or substantial governmental interest, it
should be invalidated if such governmental interest is “not unrelated to the suppression of free
expression.” Moreover, even if the purpose is unrelated to the suppression of free speech, the
law should nevertheless be invalidated if the restriction on freedom of expression is greater
than is necessary to achieve the governmental purpose in question. (Social Weather Stations,
Inc. v. Comelec, G.R. No. 147571, May 5, 2001, En Banc [Mendoza]) Chavez v. Secretary
Gonzales

The Diocese of Bacolod, Represented by the Most Rev. Bishop Vicente M. Navarra, et al. v.
COMELEC, GR No. 205728, January 21, 2015, En Banc (Leonen)
This case defines the extent that our people may shape the debates during elections. It is
significant and of first impression. We are asked to decide whether the Commission on

Elections (COMELEC) has the competence to limit expressions made by the citizens – who are
not candidates – during elections.

Before us is a special civil action for certiorari and prohibition under Rule 65 of the Rules of
Court seeking to nullify COMELEC’s Notice to Remove Campaign Materials.

SUBSTANTIVE ISSUES

A. COMELEC had no legal basis to regulate expressions made by private citizens.

Respondents (COMELEC officials) cite the Constitution, laws, and jurisprudence to support their
position that they had the power to regulate the tarpaulin. However, all of these provisions
pertain to candidates and political parties. Petitioners are not candidates. Neither do they
belong to any political party. COMELEC does not have the authority to regulate the enjoyment
of the preferred right to freedom of expression exercised by a non-candidate in this case.First,
respondents cite Article IX-C, Section 4 of the Constitution x x x.

X x x We held that the “evil sought to be prevented by this provision is the possibility that a
franchise holder may favor or give any undue advantage to a candidate in terms of advertising
space or radio or television time.” (Sanidad v. COMELEC, 260 Phil. 565 [1990]) This Court found
that “[m]edia practitioners exercising their freedom of expression during plebiscite periods are
neither the franchise holders nor the candidates[,]” thus, their right to expression during this
period may not be regulated by COMELEC.

Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates.
Respondents likewise cite Article IX-C, Section 2(7) of the Constitution x x x.

Based on the enumeration made on acts that may be penalized, it will be inferred that this
provision only affects candidates.

Petitioners assail the “Notice to Remove Campaign Materials” issued by COMELEC. This was
followed by the assailed letter regarding the “election propaganda materials posted on the
church vicinity promoting for or against the candidates and party-list groups . . .” Section 9 of
the Fair Election Act (R.A. No. 9006 [2001]) on the posting of campaign materials only mentions
“parties” and “candidates” x x x.

Xxx

Respondents considered the tarpaulin as a campaign material in their issuances. The above
provisions regulating the posting of campaign materials only apply to candidates and political
parties, and petitioners are neither of the two.

Section 3 of Republic Act No. 9006 on “Lawful Election Propaganda” also states that these are
“allowed for all registered political parties, national, regional, sectoral parties or organizations
participating under the party-list elections and for all bona fide candidates seeking national and
local elective positions subject to the limitation on authorized expenses of candidates and
political parties. . .” Section 6 of COMELEC Resolution No. 9615 provides for a similar wording.

These provisions show that election propaganda refers to matter done by or on behalf of and in
coordination with candidates and political parties. Some level of coordination with the
candidates and political parties for whom the election propaganda are released would ensure
that these candidates and political parties maintain within the authorized expenses limitation.
The tarpaulin was not paid for by any candidate or political party. There was no allegation that
petitioners coordinated with any of the persons named in the tarpaulin regarding its posting.
On the other hand, petitioners posted the tarpaulin as part of their advocacy against the RH
Law.

Xxx

In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of
either appreciation or criticism on votes made in the passing of the RH law. Thus, petitioners
invoke their right to freedom of expression.

B. The violation of the constitutional right to freedom of speech and expression

No law. . .

While it is true that the present petition assails not a law but an opinion by the COMELEC Law
Department, this Court has applied Article III, Section 4 of the Constitution even to
governmental acts.

. . . shall be passed abridging. . .

All regulations will have a impact directly or indirectly on expression. The prohibition against
the abridgment of speech should not mean an absolute prohibition against regulation. The
primary and incidental burden on speech must be weighed against a compelling state interest
clearly allowed in the Constitution. The test depends on the relevant theory of speech implicit
in the kind of society framed by our Constitution.
Our Constitution has also explicitly included the freedom of expression, separate and in
addition to the freedom of speech and of the press provided in the US Constitution. The word
“expression” was added in the 1987 Constitution x x x for having a wider scope x x x.

Speech may be said to be inextricably linked to freedom itself as “[t]he right to think is the
beginning of freedom, and speech must be protected from the government because speech is
the beginning of thought.” (Freedom of Speech and Expression, 116 Harv. L. Rev.

272, 277 [2002], quoting Justice Kennedy in Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389,
1403 [2002])

Xxx

Communication is an essential outcome of protected speech.

Communication exists when “(1) a speaker, seeking to signal others, uses conventional actions
because he or she reasonably believes that such actions will be taken by the audience in the
manner intended; and (2) the audience so takes the actions.” (Heidi M. Hurd, Sovereignty in
Silence, 99 Yale L. J. 945, 954 [1990]) “[I]n communicative action[,] the hearer may respond to
the claims by x x x either accepting the speech act’s claims or opposing them with criticism or
requests for justification.” (Hugh Baxter, System and Lifeworld in Haberma’s Theory of Law, 23
Cardozo L. Rev. 473, 499 [2002])

Speech is not limited to vocal communication. “[C]onduct is treated as a form of speech

sometimes referred to as ‘symbolic speech[,]’ (Joshua Waldman, Symbolic Speech and Social
Meaning, 97 Colum. L. Rev. 1844, 1847 [1997]) such that “’when ‘speech’ and ‘nonspeech’
elements are combined in the same course of conduct,’ the ‘communicative element’ of the
conduct may be ‘sufficient to bring into play the [right to freedom of expression].’” (Id., citing
US v. O’Brien, 391 U.S. 367, 376 [1968])
The right to freedom of expression, thus, applies to the entire continuum of speech from
utterances made to conduct enacted, and even to inaction itself as a symbolic manner of
communication.

Even before freedom “of expression” was included in Article III, Section 4 of the present
Constitution, this court has applied its precedent version to expressions other than verbal
utterances.

Freedom of expression and equality

The possibility of abuse

The guarantee of freedom of expression to individuals without any relationship to any political
candidate should not be held hostage by the possibility of abuse by those seeking to be elected.
X x x. However, labeling all expressions of private parties that tend to have an effect on the
debate in the elections as election paraphernalia would be too broad a remedy that can stifle
genuine speech. Instead, to address this evil, better and more effective enforcement will be the
least restrictive means to the fundamental freedom.

Xxx

COMELEC”s general role includes a mandate to ensure equal opportunities and reduce
spending among candidates and their registered political parties. It is not to regulate or limit
speech of the electorate as it strives to participate in the electoral exercise.

The tarpaulin in question may be viewed as producing a caricature of those who are running for
public office. Their message may be construed generalizations of very complex individuals and
party-list organizations. They are classified into black and white: as belonging to “Team Patay”
or “Team Buhay.”
But this caricature, though not agreeable to some, is still protected speech.

Xxx

Some may have thought that there should be more room to consider being more broad-minded
and non-judgmental. Some may have expected that the authors would give more space to
practice forgiveness and humility.

But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental
liberties. It is not a detailed code that prescribes good conduct. It provides space for all to be
guided by their conscience, not only in the act that they do to others but also in judgment of
the acts of others.

Freedom for the thought we can disagree with can be wielded not only by those in the
minority. This can often be expressed by dominant institutions, even religious ones. That they
made their point dramatically and in a large way does not necessarily mean that their
statements are true, or that they have basis, or that they have been expressed in good taste.

Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of

expression protected by our fundamental law. It is an expression designed to invite attention,
cause debate, and hopefully, persuade. It may be motivated by the interpretation of petitioners
of their ecclesiastical duty, but their parishioner’s actions will have very real secular
consequences.

Certainly, provocative messages do matter for the elections.

What is involved in this case is the most sacred of speech forms: expression by the electorate
that tends to rouse the public to debate contemporary issues. This is not speech by candidates
or political parties to entice votes. It is a portion of the electorate telling candidates the
conditions for their election. It is the substantive content of the right to suffrage.This is a form
of speech hopeful of a quality of democracy that we should all deserve. It is protected as a
fundamental and primordial right by our Constitution. The expression in the medium chosen by
petitioners deserves our protection.

Freedom of the Press

Four (4) Aspects of Press Freedom

Philippine jurisprudence, even as early as the period under the 1935 Constitution, has
recognized four aspects of freedom of the press. These are (1) freedom from prior restraint; (2)
freedom from punishment subsequent to publication; (3) freedom of access to information;
and (4) freedom of circulation. (Francisco Chavez v. Raul M. Gonzales, et. al., G.R. No. 168338,
15 February 2008, En Banc [Puno, CJ])

Freedom of Assembly

The first point to mark is that the right to peaceably assemble and petition for redress of
grievances is, together with freedom of speech, of expression, and of the press, a right that
enjoys primacy in the realm of constitutional protection. For these rights constitute the very
basis of a functional democratic polity, without which all the other rights would be meaningless
and unprotected. (BAYAN, et al. v. Ermita, et al., G.R. No. 169838, April 25, 2006, En Banc
[Azcuna])

Batas Pambansa Blg. 880 – The Public Assembly Act of 1985

Meaning of Public Assembly

“Public assembly” means any rally, demonstration, march, parade, procession or any other
form of mass or concerted action held in a public place for the purpose of presenting a lawful
cause, or expressing an opinion to the general public on any particular issue; or protesting or
influencing any state of affairs whether political, economic or social; or petitioning the
government for redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and assemblages for
religious purposes shall be governed by local ordinances; Provided, however, That the
declaration of policy as provided in Section 2 of this Act shall be faithfully observed.

The definition herein contained shall not include picketing and other concerted action in strike
areas by workers and employees resulting from a labor dispute as defined by the Labor Code,
its implementing rules and regulations, and by the Batas Pambansa Bilang 227. (Section 3[a],
B.P. Blg. 880)

Permit when required and when not required

A written permit shall be required for any person or persons to organize and hold a public
assembly in a public place. However, no permit shall be required if the public assembly shall be
done or made in a freedom park duly established by law or ordinance or in a private property,
in which case only the consent of the owner or the one entitled to its legal possession is
required, or in the campus of a government–owned and operated educational institution which
shall be subject to the rules and regulations of said educational institution. Political meetings or
rallies held during any election campaign period as provided for by law are not covered by this
Act. (Section 4, B.P. Blg. 880)

Freedom Parks

Every city and municipality in the country shall within six months after the effectivity of this Act
establish or designate at least one suitable “freedom park” or mall in their respective
jurisdictions which, as far as practicable, shall be centrally located within the poblacion where
demonstrations and meetings may be held at any time without the need of any prior permit.
(Section 5, B.P. Blg. 880)

Action to be taken on the application (Section 6, B.P. Blg. 880)

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit
unless there is clear and convincing evidence that the public assembly will create a clear and
present danger to public order, public safety, public convenience, public morals or public
health.

(b) The mayor or any official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which, the permit shall be deemed
granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the
application for a permit, said application shall be posted by the applicant on the premises of the
office of the mayor and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the applicant
who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the applicant within

twenty-four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms
thereof in his permit, the applicant may contest the decision in an appropriate court of law.

Integrated Bar of the Philippines v. Hon. Mayor Jose “Lito” Atienza, G.R. No. 175241, 24
February 2010, 1st Div. (Carpio Morales)
The Integrated Bar of the Philippines (IBP) applied for a permit to rally at Mendiola Bridge.
However, then Manila Mayor Jose “Lito” Atienza issued a permit to rally at Plaza Miranda
instead.

Issue: Whether or not the appellate court erred in holding that the modification of the venue in
IBP’s rally permit does not constitute grave abuse of discretion.

Held: Section 6(c) of the Public Assembly Act (BP 880) provides that “If the mayor is of the view
that there is imminent and grave danger of a substantive evil warranting the denial or
modification of the permit, he shall immediately inform the applicant who must be heard on
the matter.”

In modifying the permit outright, Atienza gravely abused his discretion when he did not
immediately inform the IBP who should have been heard first on the matter of his perceived
imminent and grave danger of a substantive evil that may warrant the changing of the venue.
Atienza failed to indicate how he had arrived at modifying the terms of the permit

against the standard of a clear and present danger test which x x x is an indispensable condition
to such modification. Nothing in the issued permit adverts to an imminent and grave danger of
a substantive evil, which “blank” denial or modification would, when granted imprimatur as the
appellate court would have it, render illusory any judicial scrutiny thereof.

It is true that the licensing official is not devoid of discretion in determining whether or not a
permit would be granted. It is not, however, unfettered discretion. While prudence requires
that there be a realistic appraisal not of what may possibly occur but of what may probably
occur, given all the relevant circumstances, still the assumption – especially so where the
assembly is scheduled for a specific public place – is that the permit must be for the assembly
being held there. It smacks of whim and caprice for Atienza to impose a change of venue for an
assembly that was slated for a specific public place. It is thus reversible error for the appellate
court not to have found such grave abuse of discretion and, under specific statutory provision,
not to have modified the permit “in terms satisfactory to the applicant.”
Meaning of Maximum Tolerance

“Maximum tolerance” means the highest degree of restraint that the military, police and other
peace keeping authorities shall observe during a public assembly or in the dispersal of the
same. (Section 3[c], B.P. Blg. 880)

B.P. No. 880 is merely a “content-neutral” regulation

It is very clear that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that
simply regulates the time, place and manner of the assemblies. This was adverted to in Osmena
v. Comelec (G.R. No. 132231, March 31, 1998, 288 SCRA 447), where the Court referred to it as
a “content-neutral” regulation of the time, place, and manner of holding public assemblies
(Ibid, p. 478).

A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public
assemblies (except picketing and other concerted action in strike areas by workers and
employees resulting from a labor dispute, which are governed by the Labor Code and other
labor laws, political meeting or rallies held during election campaign period, which are
governed by the Election Code and other election related laws, and public assemblies in the
campus of a government-owned and operated educational institution, which shall be subject to
the rules and regulations of said educational institution [Sec. 3(a) and Sec. 4 of B.P. No. 880])
that would use public places. The reference to “lawful cause” does not make it content-based
because assemblies really have to be for lawful causes, otherwise they would not be
“peaceable” and entitled to protection. Neither are the words “opinion,” “protesting” and
“influencing” in the definition of public assembly content-based, since they can refer to any
subject. The words “petitioning the government for redress of grievances” come from the
wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the
protection and benefits of all rallyists and is independent of the content of the expressions in
the rally.
Furthermore, the permit can only be denied on the ground of clear and present danger to
public order, public safety, public convenience, public morals or public health. This is a
recognized exception to the exercise of the right even under the Universal Declaration of
Human Rights and the International Covenant on Civil and Political Rights x x x. (BAYAN, et al. v.
Ermita, et al., G.R. No. 169838, April 25, 2006, En Banc [Azcuna])

The Calibrated Pre-emptive Response (CPR) Policy adopted by the Arroyo Administration in
dealing with public assemblies

The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has
conceded that the use of the term should now be discontinued, since it does not mean
anything other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the
Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General.

At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880,
CPR serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it
means something else. Accordingly, what is to be followed is and should be that mandated by
the law itself, namely, maximum tolerance.

In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people,
especially freedom of expression and freedom of assembly.

For this reason, the so-called calibrated preemptive response policy has no place in our legal
firmament and must be struck down as a darkness that shrouds freedom. It merely confuses
our people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880
cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it
merely regulates the use of public places as to the time, place and manner of assemblies. Far
from being insidious, “maximum tolerance” is for the benefit of rallyists, not the government.,
The delegation to the mayors of the power to issue rally “permits” is valid because it is subject
to the constitutionally-sound “clear and present danger” standard. (BAYAN, et al. v. Ermita, et
al., G.R. No. 169838, April 25, 2006, En Banc [Azcuna])
Freedom of Religion

Ang Ladlad-LGBT Party v. Commission on Elections, G.R. No. 190582, 618 SCRA 32, April 8, 2010,
En Banc (Del Castillo)

The decision of the COMELEC not to allow the Ang Ladlad-LGBT Party to participate in party-list
elections because its members are “immoral,” citing verses from the Bible and the Koran, was
ruled by the SC to be tainted with grave abuse of discretion and, therefore, nullified, as it
violated the non-establishment clause of freedom of religion. In effect, the COMELEC used
religious standard in its decision by using verses from the Bible and the Koran. The COMELEC, as
a government agency, is not supposed to be guided by religious standards in its decisions and
actions.

Held:

“Our Constitution provides in Article III, Section 5 that”[n]o law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof.” At bottom, what our non-
establishment clause calls for is “government neutrality in religious matters.” Clearly,
“governmental reliance on religious justification is inconsistent with this policy of neutrality.”
We thus find that it was grave violation of the non-establishment clause for the COMELEC to
utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.

“Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should
depend, instead, on whether the COMELEC is able to advance some justification for its rulings
beyond mere conformity to religious doctrine. Otherwise stated, government must act for
secular purposes and in ways that have primarily secular effects. X x x.”

What is a purely ecclesiastical affair to which the State can not meddle following the Separation
of Church and State Doctrine?
An ecclesiastical affair is “one that concerns doctrine, creed, or form of worship of the church,
or the adoption and enforcement within a religious association of needful laws and regulations
for the government of the membership, and the power of excluding from such associations
those deemed not worthy of membership.” Based on this definition, an ecclesiastical affair
involves the relationship between the church and its members and relate to matters of faith,
religious doctrines, worship and governance of the congregation. To be concrete, examples of
this so-called ecclesiastical affairs to which the State cannot meddle are proceedings for
excommunication, ordinations of religious ministers, administration of sacraments and other
activities with attached religious significance. (Pastor Dionisio V. Austria v. NLRC, G.R. No.
124382, Aug. 16, 1999, 1st Div. [Kapunan])

Iglesia Ni Cristo v. Court of Appeals

Under the non-establishment clause of freedom of religion, when it comes to religious

differences, the State enjoys no banquet of options – neutrality alone is its fixed and immovable
stance. It is not its task to defend one religion against an attack by another religion. After all,
the remedy against bad theology is better theology. Let them duel in the market place of ideas.
The marketplace of ideas demands that speech should be met by more speech, for it is the
spark of opposite speech, the heat of colliding ideas, that can fan the embers of truth.

James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et al., GR No. 204819, April 8, 2014, En
Banc (Mendoza)

Wherefore, THE PETITIONS ARE partially granted. Accordingly, the Court declares R.A. No.
10354 as NOT UNCONSTITUTIONAL, except with respect to the following provisions which are
declared UNCONSTITUTIONAL:

1) Section 7 and the corresponding provision in RH-IRR insofar as they: a) require private health
facilities And non-maternity specialty hospitals and hospitals owned and operated by a religious
group to refer patients, not in an emergency or life- threatening case, as defined under
Republic Act no. 8344, to another health facility which is conveniently accessible; and b) allow
minor-parents or minors who have suffered a miscarriage access to modern methods of family
planning without written consent from their parents or guardian/s;

2) Section 23(a)(1) and the corresponding provision in the RH-IRR, particularly Section 5.24
thereof, insofar as they punish any healthcare service provider who fails or refuses to
disseminate information regarding programs and services on reproductive health regardless of
his or her religious beliefs;

3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a
married individual, not in an emergency or life-threatening case, as defined under Republic Act
No. 8344, to undergo reproductive health procedures without the consent of the spouse;

4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they

limit the requirement of parental consent only to elective surgical procedures;

5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24
thereof, insofar as they punish any healthcare service provider who fails and/or refuses to refer
a patient not in an emergency or life-threatening case, as defined under Republic Act No. 8344,
to another health care service provider within the same facility or one which is conveniently
accessible regardless of his or her religious beliefs;

6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5.24
thereof, insofar as they punish any public officer who refuses to support reproductive health
programs or shall do any act that hinders the full implementation of a reproductive health
program, regardless of his or her religious beliefs;

7) Section 17 and the corresponding provision in the RH-IRR regarding the rendering of pro
bono reproductive health service in so far as they affect the conscientious objector in securing
Philhealth accreditation; and
8) Section 3.01(a) and Section 3.01(j) of the RH-IRR, which added the qualifier “primarily” in
defining abortifacients and contraceptives, as they are ultra vires and, therefore, null and void
for contravening Section 4(a) of the RH Law and violating Section 12, Article II of the
Constitution.

Liberty of Abode and Freedom of Movement

The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public health, as may be provided by
law. (Sec. 6, Art. III, 1987 Constitution)

Limitation on the Right to Travel

The right to travel is guaranteed by the Constitution. However, the exercise of such right is not
absolute. Section 6, Article III of the 1987 Constitution allows restrictions on one’s right to
travel provided that such restriction is in the interest of national security, public safety or public
health as may be provided by law. This, however, should by no means be construed as limiting
the Court’s inherent power of administrative supervision over lower courts.

OCA Circular No. 49-2003 does not restrict but merely regulates, by providing guidelines to be
complied by judges and court personnel, before they can go on leave to travel abroad. To
“restrict” is to restrain or prohibit a person from doing something; to “regulate” is to govern or
direct according to rule. To ensure management of court dockets and to avoid disruption in the
administration of justice, OCA Circular No. 49-2003 requires a judge who wishes to travel
abroad to submit, together with his application for leave of absence duly recommended for
approval by his Executive Judge, a certification from the Statistics Division, Court Management
Office of the OCA. The said certification shall state the condition of his docket based on his
Certificate of Service for the month immediately preceding the date of his intended travel, that
he has decided and resolved all cases or incidents within three (3) months from date of
submission, pursuant to Section 15(1) and (2), Article VIII of the 1987 Constitution.
Thus, for traveling abroad without having been officially allowed by the Court, Judge Macarine
is guilty of violation of OCA Circular No. 49-2003. (Office of Administrative Services–Office of the
Court Administrator v. Judge Ignacio B. Macarine, A.M. No. MTJ-10-1770, 18 July 2012, 2nd Div.
[Brion])

The Right of the People to Information on Matters of Public Concern

In Valmonte v. Belmonte, Jr., the Court emphasized that the information sought must be
“matters of public concern,” access to which may be limited by law. Similarly, the state policy of
full public disclosure extends only to “transactions involving public interest” and may also be
“subject to reasonable conditions prescribed by law.” As to the meanings of the terms “public
interest” and “public concern,” the Court, in Legaspi v. Civil Service Commission, elucidated:

“In determining whether or not a particular information is of public concern, there is no rigid
test which can be applied. ‘Public concern’ like ‘public interest’ is a term that eludes exact
definition. Both terms embrace a broad spectrum of subjects which the public may want to
know, either because these directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine
on a case by case basis whether the matter at issue is of interest or importance, as it relates to
or affects the public.”

Considered a public concern in the above-mentioned case was the “legitimate concern of
citizens to ensure that government positions requiring civil service eligibility are occupied only
by persons who are eligibles.” So was the need to give the general public adequate notification
of various laws that regulate and affect the actions and conduct of

citizens, as held in Tanada. Likewise did the “public nature of the loanable funds of the GSIS
and the public office held by the alleged borrowers (members of the defunct Batasang
Pambansa)” qualify the information sought in Valmonte as matters of public interest and
concern. In Aquino-Sarmiento v. Morato, the Court also held that official acts of public officers
done in pursuit of their official functions are public in character; hence, the records pertaining
to such official acts and decisions are within the ambit of the constitutional right of access to
public records.

Under Republic Act No. 6713, public officials and employees are mandated to “provide
information on their policies and procedures in clear and understandable language, [and]
ensure openness of information, public consultations and hearing whenever appropriate x x x,”
except when “otherwise provided by law or when required by the public interest.” In particular,
the law mandates free public access, at reasonable hours, to the annual performance reports of
offices and agencies of government and government-owned or controlled corporations; and the
statements of assets, liabilities and financial disclosures of all public officials and employees.

In general, writings coming into the hands of public officers in connection with their official
functions must be accessible to the public, consistent with the policy of transparency of
governmental affairs. This principle is aimed at affording the people an opportunity to
determine whether those to whom they have entrusted the affairs of the government are
honestly, faithfully and competently performing their functions as public servants. Undeniably,
the essence of democracy lies in the free-flow of thought; but thoughts and ideas must be well-
informed so that the public would gain a better perspective of vital issues confronting them
and, thus, be able to criticize as well as participate in the affairs of the government in a
responsible, reasonable and effective manner. Certainly, it is by ensuring an unfettered and
uninhibited exchange of ideas among a well-informed public that a government remains
responsive to the changes desired by the people. (Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998,
[Panganiban])

Recognized Restrictions to the Right of the People to Information on Matters of Public

Concern1) National security matters and intelligence information. This jurisdiction recognizes
the common law holding that there is a governmental privilege against public disclosure with
respect to state secrets regarding military, diplomatic and other national security matters.
Likewise, information on inter-government exchanges prior to the conclusion of treaties and
executive agreements may be subject to reasonable safeguards for the sake of national
interest;
2) Trade or industrial secrets (pursuant to the Intellectual Property Code [R.A. No. 8293,
approved on June 6, 1997] and other related laws) and banking transactions (pursuant to the
Secrecy of Bank Deposits Act [R.A. No. 1405, as amended]);

3) Criminal matters, such as those relating to the apprehension, the prosecution and the
detention of criminals, which courts may not inquire into prior to such arrest, detention and
prosecution;

4) Other confidential information. The Ethical Standards Act (R.A. No. 6713, enacted on
February 20, 1989) further prohibits public officials and employees from using or divulging
“confidential or classified information officially known to them by reason of their office and not
made available to the public.” (Sec. 7[c], ibid.) Other acknowledged limitations to information
access include diplomatic correspondence, closed door Cabinet meetings and executive
sessions of either house of Congress, as well as the internal deliberations of the Supreme Court.
(Chavez v. PCGG, 299 SCRA 744, Dec. 9, 1998, [Panganiban])

Re: Request for Copy of 2008 Statement of Assets, Liabilities and Networth (SALN) and Personal
Data Sheet or Curriculum Vitae of the Justices of the Supreme Court and Officers and
Employees of the Judiciary (A.M. No. 09-8-6-SC, June 13, 2012, En Banc [Mendoza])

Section 7 of Article III of the Constitution is relevant in the issue of public disclosure of SALN and
other documents of public officials.

Emphasizing the import and meaning of the foregoing constitutional provision, the Court, in the
landmark case of Valmonte v. Belmonte, Jr., elucidated that the right to information goes hand
in hand with the constitutional policies of full public disclosure and honesty in the public
service. It is meant to enhance the widening role of the citizenry in governmental decision-
making as well as in checking abuse in government. The importance of the said right was
pragmatically explicated that the incorporation of this right in the Constitution is a recognition
of the fundamental role of free exchange of information in a democracy. There can be no
realistic perception by the public of the nation’s problems nor a meaningful democratic
decision-making if they are denied access to information of general interest. Information is
needed to enable the members of society to cope with the exigencies of the times. However,
restrictions on access to certain records may be imposed by law.

Thus, while “public concern” like “public interest” eludes exact definition and has been said to
embrace a broad spectrum of subjects which the public may want to know, either because such
matters naturally arouse the interest of an ordinary citizen, the Constitution itself, under
Section 17, Article XI, has classified the information disclosed in the SALN as a matter of public
concern and interest. In other words, a “duty to disclose” sprang from the “right to know.” Both
of constitutional origin, the former is a command while the latter is a permission. Hence, there
is a duty on the part of members of the government to disclose their SALNs to the public in the
manner provided by law.

In the case at bar, the Court notes the valid concerns of the other magistrates regarding the
possible illicit motives of some individuals in their requests for access to such personal
information and their publication. However, custodians of public documents must not concern
themselves with the motives, reasons and objects of the persons seeking to access to the
records. The moral or material injury which their misuse might inflict on others is the
requestor’s responsibility and lookout. While public officers in the custody or control of public
records have the discretion to regulate the manner in which records may be inspected,
examined or copied by interested parties, such discretion does not carry with it the authority to
prohibit access, inspection, examination, or copying of the records. After all, public office is a
public trust.