POLITICAL & INTERNATIONAL LAW

Selected Recent Jurisprudence (2010-December 2017)1

By Atty. Alexis F. Medina2

PART I:

CONSTITUTIONAL LAW

STRUCTURE AND POWERS OF GOVERNMENT

STATE POLICIES AND PRINCIPLES

CIVILIAN SUPREMACY

A civilian President is the ceremonial, legal and administrative head of the

armed forces. As Commander-in-Chief, the President has the power to direct
military operations and determine military strategy.

[W]hile 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. (Kulayan v. Tan, G.R. No. 187298, July 03, 2012)

DUTY OF THE GOVERNMENT TO SERVE AND PROTECT THE PEOPLE

The 1987 Constitution has "vested the executive power in the President of the Republic
of the Philippines." While the vastness of the executive power that has been consolidated in the
person of the President cannot be expressed fully in one provision, the Constitution has stated
the prime duty of the government, of which the President is the head:

The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment thereof, all
citizens may be required, under conditions provided by law, to render personal military or civil
service.

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

2 AB Political Science, University of the Philippines (UP), Diliman; Order of the Purple Feather (OPF), UP, College of
Law; Valedictorian, San Sebastian College-Recoletos, Manila, College of Law; Philippine Representative to the World
Trade Organization (WTO) Trade Facilitation Preparatory Committee Meeting for Legal Review (Geneva, Switzerland,
2014); Litigation lawyer; formerly with the Ponce Enrile Reyes & Manlastas Law Offices (Pecabar); Professor of
Constitutional Law, San Sebastian College-Recoletos, Manila, College of Law, and Polytechnic University of the
Philippines (PUP), Manila, College of Law; former professor of Constitutional Law, New Ear University, College of Law,
Quezon City; Bar Review Lecturer, Recoletos Review Center, Manila; Transaction adviser on Public Private
Partnerships (PPPS); Partner, Libra Law
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 B. The duty to protect the territory and the citizens of the Philippines, the power to call
upon the people to defend the State, and the President as Commander-in-Chief

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 the 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, xxxx.

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. The
AFP's role is to secure the sovereignty of the State and the integrity of the national territory. In
addition, the Executive is constitutionally empowered to maintain peace and order; protect life,
liberty, and property; and promote the general welfare. (Saguisag v. Ochoa, G.R. No. 212426,
January 12, 2016)

SEPARATION OF CHURCH AND STATE

Why the holding of Catholic masses at the basement of any hall of justice
does not violate the principle of separation of Church and State: The State
recognizes the inherent right of the people to freely exercise their religion. Our
Constitution recognizes the religiosity of our people. The Roman Catholics express
their worship through the holy mass and to stop these would be tantamount to
repressing the right to the free exercise of their religion. Allowing religion to
flourish is not contrary to the principle of separation of Church and State.

The Court agrees with the findings and recommendation of the OCA and denies the
prayer of Valenciano that the holding of religious rituals of any of the world's religions in the QC
Hall of Justice or any halls of justice all over the country be prohibited.

The Holding of Religious Rituals in the Halls of Justice does not Amount to a Union of
Church and State

xxx Valenciano is against the holding of religious rituals in the halls of justice on the
ground that it violates the constitutional provision on the separation of Church and State and
the constitutional prohibition against the appropriation of public money or property for the
benefit of a sect, church, denomination, or any other system of religion. Indeed, Section 6,
Article II of the 1987 Constitution provides:

The separation of Church and State shall be inviolable.

The Court once pronounced that "our history, not to speak of the history of mankind, has
taught us that the union of church and state is prejudicial to both, for occasions might arise
when the state will use the church, and the church the state, as a weapon in the furtherance of
their respective ends and aims."

xxx

This, notwithstanding, the State still recognizes the inherent right of the people to have
some form of belief system, whether such may be belief in a Supreme Being, a certain way of life,
or even an outright rejection of religion. Our very own Constitution recognizes the heterogeneity
and religiosity of our people as reflected in lmbong v. Ochoa, as follows:

xxx The undisputed fact is that our people generally believe in a deity, whatever they
conceived Him to be, and to Whom they called for guidance and enlightenment in crafting our
fundamental law. xxx Thus, the preamble of the present Constitution reads:

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a
just and humane society, xxx

The Filipino people in "imploring the aid of Almighty God" manifested their spirituality
innate in our nature and consciousness as a people, shaped by tradition and historical
experience. As this is embodied in the preamble, it means that the State recognizes with respect
the influence of religion xxxx. Moreover, in recognition of the contributions of religion to
society, the 1935, 1973 and 1987 Constitutions contain benevolent and accommodating
provisions towards religions such as tax exemption of church property, salary of religious
officers in government institutions, and optional religious instructions in public schools.
[Emphases supplied]

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 xxx

Thus, the right to believe or not to believe has again been enshrined in Section 5, Article
III of the 1987 Constitution:

Section 5. xxx. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. xxx.

xxxx

Allowing religion to flourish is not contrary to the principle of separation of Church and
State. In fact, these two principles are in perfect harmony with each other.

xxx

As pointed out by Judge Lutero, "the Roman Catholics express their worship through the
holy mass and to stop these would be tantamount to repressing the right to the free exercise of
their religion. Our Muslim brethren, who are government employees, are allowed to worship
their Allah even during office hours inside their own offices. The Seventh Day Adventists are
exempted from rendering Saturday duty because their religion prohibits them from working on
a Saturday. Even Christians have been allowed to conduct their own bible studies in their own
offices. All these have been allowed in respect of the workers' right to the free exercise of their
religion. xxx"

Clearly, allowing the citizens to practice their religion is not equivalent to a fusion of
Church and State. (In re: Holding of Religious Rituals at the Hall of Justice Building in Quezon
City, A.M. No. 10-4-19-SC, March 7, 2017)

PROTECTING THE LIFE OF THE UNBORN

The intent of the Framers of the 1987 Constitution in protecting the life of the
unborn from conception was to prevent the Legislature from legalizing abortion. The RH
law is in line with this intent as it mandates that protection be afforded from the
moment of fertilization.

The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life
of the unborn from conception was to prevent the Legislature from enacting a measure legalizing
abortion.

xxx

A reading of the RH Law would show that it is in line with this intent and actually proscribes
abortion. While the Court has opted not to make any determination, at this stage, when life begins, it
finds that the RH Law itself clearly mandates that protection be afforded from the moment of
fertilization. x x x [T]he RH Law is replete with provisions that embody the policy of the law to
protect to the fertilized ovum and that it should be afforded safe travel to the uterus for implantation.

Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised
Penal Code, which penalizes the destruction or expulsion of the fertilized ovum. x x x

x x x [T]he RH Law mandates that protection must be afforded from the moment of
fertilization. By using the word" or," the RH Law prohibits not only drugs or devices that prevent
implantation, but also those that induce abortion and those that induce the destruction of a fetus
inside the mother's womb. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

The RH Law does not legalize abortion as it recognizes that: one, there is a need
to protect the fertilized ovum which already has life; and two, the fertilized ovum must
be protected the moment it becomes existent - all the way until it reaches and implants
in the mother's womb.

[T]he Court finds that the RH Law, consistent with the Constitution, recognizes that the
fertilized ovum already has life and that the State has a bounden duty to protect it. The conclusion
becomes clear because the RH Law, first, prohibits any drug or device that induces abortion (first
kind), which, x x x, refers to that which induces the killing or the destruction of the fertilized ovum,
and, second, prohibits any drug or device the fertilized ovum to reach and be implanted in the
mother's womb (third kind).

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 By expressly declaring that any drug or device that prevents the fertilized ovum to reach and
be implanted in the mother's womb is an abortifacient (third kind), the RH Law xxxx it recognizes
that: one, there is a need to protect the fertilized ovum which already has life, and two, the fertilized
ovum must be protected the moment it becomes existent - all the way until it reaches and implants in
the mother's womb.

x x x [I]nasmuch as it affords protection to the fertilized ovum, the RH Law does not sanction
abortion. To repeat, it is the Court's position that life begins at fertilization, not at implantation.
When a fertilized ovum is implanted in the uterine wall, its viability is sustained but that instance of
implantation is not the point of beginning of life. It started earlier. And as defined by the RH Law,
any drug or device that induces abortion, that is, which kills or destroys the fertilized ovum or
prevents the fertilized ovum to reach and be implanted in the mother's womb, is an abortifacient.
(Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

THE RIGHT AND DUTY OF PARENTS

IN THE REARING OF THE YOUTH

Right of parents to rear their children and the role of the State: Parents have the
natural and primary right and duty in rearing the youth for civic efficiency and the
development of moral character. However, when actions concerning the child have a
relation to the public welfare or the well-being of the child, the State may act to
promote these legitimate interests. State authority is therefore, not exclusive of, but
rather, complementary to parental supervision. As parens patriae, the State has the
inherent right and duty to aid parents in the moral development of their children. The
Curfew Ordinances are but examples of legal restrictions designed to aid parents in their
role of promoting their children's well-being.

Petitioners submit that the Curfew Ordinances are unconstitutional because they deprive
parents of their natural and primary right in the rearing of the youth without substantive due
process. In this regard, they assert that this right includes the right to determine whether minors
will be required to go home at a certain time or will be allowed to stay late outdoors. Given that
the right to impose curfews is primarily with parents and not with the State, the latter's interest
in imposing curfews cannot logically be compelling.

Petitioners' stance cannot be sustained.

Section 12, Article II of the 1987 Constitution articulates the State's policy relative to the
rights of parents in the rearing of their children:

Section 12. The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous social institution. It
shall equally protect the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents in the
rearing of the youth for civic efficiency and the development of moral
character shall receive the support of the Government. (Emphasis and
underscoring supplied.)

xxx [T]he rearing of children (i.e., referred to as the "youth") for civic efficiency and the
development of their moral character are characterized not only as parental rights, but also as
parental duties. xxx The duty aspect of this provision is a reflection of the State's independent
interest to ensure that the youth would eventually grow into free, independent, and well-
developed citizens of this nation. xxx

By history and tradition, "the parental role implies a substantial measure of authority
over one's children." In Ginsberg v. New York, the Supreme Court of the United States (US)
remarked that "constitutional interpretation has consistently recognized that the parents' claim
to authority in their own household to direct the rearing of their children is basic in the
structure of our society." As in our Constitution, the right and duty of parents to rear their
children is not only described as "natural," but also as "primary." The qualifier "primary"
connotes the parents' superior right over the State in the upbringing of their
children.

xxx

While parents have the primary role in child-rearing, it should be stressed that "when
actions concerning the child have a relation to the public welfare or the well-being
of the child, the [Sltate may act to promote these legitimate interests." Thus, "[i]n
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cases in which harm to the physical or mental health of the child or to public
safety, peace, order, or welfare is demonstrated, these legitimate state interests
may override the parents' qualified right to control the upbringing of their
children."

As our Constitution itself provides, the State is mandated to support parents in the
exercise of these rights and duties. State authority is therefore, not exclusive of, but
rather, complementary to parental supervision. In Nery v. Lorenzo, this Court
acknowledged the State's role as parens patriae in protecting minors, viz. :

[Where minors are involved, the State acts as parens patriae. xxxx in the
supreme power of every State, x x x." (Emphases and underscoring supplied)

As parens patriae, the State has the inherent right and duty to aid parents in
the moral development of their children, and, thus, assumes a supporting role for parents
to fulfill their parental obligations. xxx

The Curfew Ordinances are but examples of legal restrictions designed to aid parents in
their role of promoting their children's well-being. xxxx [T]hese ordinances further compelling
State interests (particularly, the promotion of juvenile safety and the prevention of juvenile
crime), which necessarily entail limitations on the primary right of parents to rear their children.
xxx

xxx [T]he Curfew Ordinances apply only when the minors are not - whether actually or
constructively (as will be later discussed) - accompanied by their parents. xxxx [T]he only
aspect of parenting that the Curfew Ordinances affects is the parents' prerogative
to allow minors to remain in public places without parental accompaniment
during the curfew hours. In this respect, the ordinances neither dictate an over-all
plan of discipline for the parents to apply to their minors nor force parents to
abdicate their authority to influence or control their minors' activities. As such, the
Curfew Ordinances only amount to a minimal - albeit reasonable - infringement upon a parent's
right to bring up his or her child.

Finally, it may be well to point out that the Curfew Ordinances positively influence
children to spend more time at home. xxxx

In fine, the Curfew Ordinances should not be declared unconstitutional for violating the
parents' right to rear their children. (Samahan ng mga Progresibong Kabataan v. Quezon City,
G.R. No. 225442, August 8, 2017)

SELF-RELIANT AND INDEPENDENT NATIONAL ECONOMY

EFFECTIVELY CONTROLLED BY FILIPINOS

Section 19, Article II of the 1987 Constitution declares as State policy the development of
a national economy "effectively controlled" by Filipinos:

Section 19. The State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos.

Fortifying the State policy of a Filipino-controlled economy, the Constitution decrees:

Section 10. The Congress shall, upon recommendation of the economic

and planning agency, when the national interest dictates, reserve to citizens of
the Philippines or to corporations or associations at least sixty per centum of
whose capital is owned by such citizens, or such higher percentage as Congress
may prescribe, certain areas of investments. The Congress shall enact measures
that will encourage the formation and operation of enterprises whose capital is
wholly owned by Filipinos.

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

economy and patrimony, the State shall give preference to qualified Filipinos.

The State shall regulate and exercise authority over foreign investments
within its national jurisdiction and in accordance with its national goals and
priorities.

Under Section 10, Article XII of the 1987 Constitution, Congress may "reserve to citizens
of the Philippines or to corporations or associations at least sixty per centum of whose capital is
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owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of
investments." Thus, in numerous laws Congress has reserved certain areas of investments to
Filipino citizens or to corporations at least sixty percent of the "capital" of which is owned by
Filipino citizens. xxxx

With respect to public utilities, the 1987 Constitution specifically ordains:

Section 11. No franchise, certificate, or any other form of

authorization for the operation of a public utility shall be granted
except to citizens of the Philippines or to corporations or associations
organized under the laws of the Philippines, at least sixty per
centum of whose capital is owned by such citizens; xxxx (Emphasis
supplied)

This provision, which mandates the Filipinization of public utilities, requires that any
form of authorization for the operation of public utilities shall be granted only to "citizens of the
Philippines or to corporations or associations organized under the laws of the Philippines at
least sixty per centum of whose capital is owned by such citizens." "The provision is [an
express] recognition of the sensitive and vital position of public utilities both in the
national economy and for national security."

The 1987 Constitution reserves the ownership and operation of public utilities
exclusively to (1) Filipino citizens, or (2) corporations or associations at least 60 percent of
whose "capital" is owned by Filipino citizens. Hence, in the case of individuals, only Filipino
citizens can validly own and operate a public utility. In the case of corporations or associations,
at least 60 percent of their "capital" must be owned by Filipino citizens. In other words,
under Section 11, Article XII of the 1987 Constitution, to own and operate a public
utility a corporation’s capital must at least be 60 percent owned by Philippine
nationals. (Gamboa v. Chan, G.R. No. 176579, October 9, 2012)

Definition of "Philippine National": the statutory definition of the term

"Philippine national" has been uniform and consistent: it means a Filipino citizen, or
a domestic corporation at least 60% of the voting stock is owned by Filipinos.

[F]rom the effectivity of the Investment Incentives Act of 1967 to the adoption of the
Omnibus Investments Code of 1981, to the enactment of the Omnibus Investments Code of
1987, and to the passage of the present Foreign Investments Act of 1991, or for more than
four decades, the statutory definition of the term "Philippine national" has been
uniform and consistent: it means a Filipino citizen, or a domestic corporation at
least 60% of the voting stock is owned by Filipinos. Likewise, these same statutes
have uniformly and consistently required that only "Philippine nationals" could
own and operate public utilities in the Philippines. (Gamboa v. Chan, G.R. No. 176579,
October 9, 2012)

The Constitution expressly declares as State policy the development of an

economy "effectively controlled" by Filipinos. Consistent with such State policy, the
Constitution explicitly reserves the ownership and operation of public utilities to
Philippine nationals, who are defined in the Foreign Investments Act of 1991 as
Filipino citizens, or corporations or associations at least 60 percent of whose
capital with voting rights belongs to Filipinos. The term "capital" in Section 11,
Article XII of the 1987 Constitution refers to shares with voting rights, as well as
with full beneficial ownership.

The Constitution expressly declares as State policy the development of an economy

"effectively controlled" by Filipinos. Consistent with such State policy, the Constitution
explicitly reserves the ownership and operation of public utilities to Philippine nationals, who
are defined in the Foreign Investments Act of 1991 as Filipino citizens, or corporations or
associations at least 60 percent of whose capital with voting rights belongs to Filipinos. The
FIA’s implementing rules explain that "[f]or stocks to be deemed owned and held by Philippine
citizens or Philippine nationals, mere legal title is not enough to meet the required Filipino
equity. Full beneficial ownership of the stocks, coupled with appropriate voting
rights is essential." In effect, the FIA clarifies, reiterates and confirms the interpretation that
the term "capital" in Section 11, Article XII of the 1987 Constitution refers to shares with
voting rights, as well as with full beneficial ownership. This is precisely because the

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right to vote in the election of directors, coupled with full beneficial ownership of stocks,
translates to effective control of a corporation.

Any other construction of the term "capital" in Section 11, Article XII of the Constitution
contravenes the letter and intent of the Constitution. Any other meaning of the term "capital"
openly invites alien domination of economic activities reserved exclusively to Philippine
nationals. Therefore, respondents’ interpretation will ultimately result in handing over effective
control of our national economy to foreigners in patent violation of the Constitution, making
Filipinos second-class citizens in their own country. (Gamboa v. Chan, G.R. No. 176579,
October 9, 2012)

The intent of the framers of the Constitution is to place in the hands of

Filipino citizens the control and management of public utilities. The right to vote in
the election of directors, coupled with full beneficial ownership of stocks, translates
to effective control of a corporation.

For a corporation to be granted authority to operate a public utility, at least 60 percent of

its "capital" must be owned by Filipino citizens. Considering that common shares have voting
rights which translate to control, as opposed to preferred shares which usually have no voting
rights, the term "capital" in Section 11, Article XII of the Constitution refers only to common
shares.

However, if the preferred shares also have the right to vote in the election of directors,
then the term "capital" shall include such preferred shares, because the right to participate in
the control or management of the corporation is exercised through the right to vote in the
election of directors. In short, the term "capital" in Section 11, Article XII of the Constitution
refers only to shares of stock that can vote in the election of directors.

This interpretation is consistent with the intent of the framers of the Constitution to
place in the hands of Filipino citizens the control and management of public utilities. The right
to vote in the election of directors, coupled with full beneficial ownership of stocks, translates to
effective control of a corporation.

xxx

The legal and beneficial ownership of 60 percent of the outstanding capital stock must
rest in the hands of Filipinos in accordance with the constitutional mandate. Full beneficial
ownership of 60 percent of the outstanding capital stock, coupled with 60 percent of the voting
rights, is constitutionally required for the State’s grant of authority to operate a public utility.
The undisputed fact that the PLDT preferred shares, 99.44% owned by Filipinos, are non-voting
and earn only 1/70 of the dividends that PLDT common shares earn, grossly violates the
constitutional requirement of 60 percent Filipino control and Filipino beneficial ownership of a
public utility. (Gamboa v. Teves, G.R. No. 176579, June 28, 2011)

The 60 percent Filipino ownership required by the Constitution to engage in

certain economic activities applies not only to voting control of the corporation,
but also to the beneficial ownership of the corporation.

The 28 June 2011 Decision declares that the 60 percent Filipino ownership required by
the Constitution to engage in certain economic activities applies not only to voting control of the
corporation, but also to the beneficial ownership of the corporation. To repeat, we held:

Mere legal title is insufficient to meet the 60 percent Filipino-owned

"capital" required in the Constitution. Full beneficial ownership of 60
percent of the outstanding capital stock, coupled with 60 percent of
the voting rights, is required. The legal and beneficial ownership of 60
percent of the outstanding capital stock must rest in the hands of Filipino
nationals in accordance with the constitutional mandate. Otherwise, the
corporation is "considered as non-Philippine national[s]." (Emphasis supplied)

This is consistent with Section 3 of the FIA which provides that where
100% of the capital stock is held by "a trustee of funds for pension or other
employee retirement or separation benefits," the trustee is a Philippine national if
"at least sixty percent (60%) of the fund will accrue to the benefit of Philippine
nationals." Likewise, Section 1(b) of the Implementing Rules of the FIA provides
that "for stocks to be deemed owned and held by Philippine citizens or Philippine

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 nationals, mere legal title is not enough to meet the required Filipino equity. Full
beneficial ownership of the stocks, coupled with appropriate voting
rights, is essential."

(Gamboa v. Chan, G.R. No. 176579, October 9, 2012)

The 60-40 ownership requirement in favor of Filipino citizens in Section 11,

Article XII of the Constitution must apply not only to shares with voting rights but
also to shares without voting rights. In short, the 60-40 ownership requirement in
favor of Filipino citizens must apply separately to each class of shares, whether
common, preferred non-voting, preferred voting or any other class of shares.

Since the constitutional requirement of at least 60 percent Filipino ownership applies

not only to voting control of the corporation but also to the beneficial ownership of the
corporation, it is therefore imperative that such requirement apply uniformly and across the
board to all classes of shares, regardless of nomenclature and category, comprising the capital of
a corporation. Under the Corporation Code, capital stock consists of all classes of shares issued
to stockholders, that is, common shares as well as preferred shares, which may have different
rights, privileges or restrictions as stated in the articles of incorporation.

The Corporation Code allows denial of the right to vote to preferred and redeemable
shares, but disallows denial of the right to vote in specific corporate matters. Thus, common
shares have the right to vote in the election of directors, while preferred shares may be denied
such right. Nonetheless, preferred shares, even if denied the right to vote in the election of
directors, are entitled to vote on the following corporate matters: (1) amendment of articles of
incorporation; (2) increase and decrease of capital stock; xxxx

xxx [T]he 60-40 ownership requirement in favor of Filipino citizens in Section 11, Article
XII of the Constitution must apply not only to shares with voting rights but also to shares
without voting rights. Preferred shares, denied the right to vote in the election of directors, are
anyway still entitled to vote on the eight specific corporate matters mentioned above. Thus, if a
corporation, engaged in a partially nationalized industry, issues a mixture of
common and preferred non-voting shares, at least 60 percent of the common
shares and at least 60 percent of the preferred non-voting shares must be owned
by Filipinos. Of course, if a corporation issues only a single class of shares, at least 60 percent
of such shares must necessarily be owned by Filipinos. In short, the 60-40 ownership
requirement in favor of Filipino citizens must apply separately to each class of
shares, whether common, preferred non-voting, preferred voting or any other
class of shares. This uniform application of the 60-40 ownership requirement in favor of
Filipino citizens clearly breathes life to the constitutional command that the ownership and
operation of public utilities shall be reserved exclusively to corporations at least 60 percent of
whose capital is Filipino-owned. Applying uniformly the 60-40 ownership requirement in favor
of Filipino citizens to each class of shares, regardless of differences in voting rights, privileges
and restrictions, guarantees effective Filipino control of public utilities, as mandated by the
Constitution. (Gamboa v. Chan, G.R. No. 176579, October 9, 2012)

For purposes of determining compliance with constitutional or statutory

ownership requirement, the required percentage of Filipino ownership shall be
applied to BOTH (a) the total number of outstanding shares of stock entitled to vote
in the election of directors; AND (b) the total number of outstanding shares of stock,
whether or not entitled to vote in the election of directors.

The relevant provision in the assailed SEC-MC No. 8 IS Section 2, which provides:

Section 2. All covered corporations shall, at all times, observe the

constitutional or statutory ownership requirement. For purposes of determining
compliance therewith, the required percentage of Filipino ownership shall be
applied to BOTH (a) the total number of outstanding shares of stock entitled to
vote in the election of directors; AND (b) the total number of outstanding shares
of stock, whether or not entitled to vote in the election of directors.

Section 2 of SEC-MC No. 8 clearly incorporates the Voting Control Test or

the controlling interest requirement. In fact, Section 2 goes beyond requiring a 60-
40 ratio in favor of Filipino nationals in the voting stocks; it moreover requires the
60-40 percentage ownership in the total number of outstanding shares of stock,
whether voting or not. The SEC formulated SEC-MC No. 8 to adhere to the Court's
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 unambiguous pronouncement that "[f]ull beneficial ownership of 60 percent of
the outstanding capital stock, coupled with 60 percent of the voting rights is
required." Clearly, SEC-MC No. 8 cannot be said to have been issued with grave
abuse of discretion.

A simple illustration involving Company X with three kinds of shares of stock, easily
shows how compliance with the requirements of SEC-MC No. 8 will necessarily result to full and
faithful compliance with the Gamboa Decision as well as the Gamboa Resolution.

The following is the composition of the outstanding capital stock of Company X:

100 common shares

100 Class A preferred shares (with right to elect directors)

100 Class B preferred shares (without right to elect directors)

SEC-MC No. 8 GAMBOA DECISION

(1) 60% (required percentage of "shares of stock entitled to vote in the

Filipino) applied to the total number of election of directors"80 (60% of the voting
outstanding shares of stock entitled to vote in rights)
the election of directors

If at least a total of 120 of common shares and Class A preferred shares (in any combination) are
owned and controlled by Filipinos, Company X is compliant with the 60% of the voting rights in
favor of Filipinos requirement of both SEC-MC No. 8 and the Gamboa Decision.

SEC-MC No. 8 GAMBOA DECISION/RESOLUTION

(2) 60% (required percentage of "Full beneficial ownership of 60

Filipino) applied to BOTH (a) the total number
of outstanding shares of stock, entitled to vote
in the election of directors; AND (b) the total
number of outstanding shares of stock,
whether or not entitled to vote in the election
of directors.
percent of the outstanding capital stock,
coupled with 60 percent of the voting
rights"81 or "Full beneficial ownership of the
stocks, coupled with appropriate voting rights
x x x shares with voting rights, as well as with
full beneficial ownership"

If at least a total of 180 shares of all the outstanding capital stock of Company X are
owned and controlled by Filipinos, provided that among those 180 shares a total of 120 of the
common shares and Class A preferred shares (in any combination) are owned and controlled by
Filipinos, then Company X is compliant with both requirements of voting rights and beneficial
ownership under SEC-MC No. 8 and the Gamboa Decision and Resolution.

From the foregoing illustration, SEC-MC No. 8 simply implemented, and is fully in
accordance with, the Gamboa Decision and Resolution. (Roy v. Herbosa, G.R. No. 207246,
November 22, 2016)

The full beneficial ownership test: For stocks to be deemed owned and held
by Philippine citizens or Philippine nationals, mere legal title is not enough. It is not
sufficient that a share is registered in the name of a Filipino citizen or national, i.e.,
he should also have full beneficial ownership of the share. This means the voting
right or the right to the dividends is not transferred or assigned to an alien.
Otherwise, that share is also to be excluded or not counted.

As defined in the [Securities Regulation Code-Implementing Rules and Regulations],

"[b]eneficial owner or beneficial ownership means any person who, directly or indirectly,
through any contract, arrangement, understanding, relationship or otherwise, has or shares
voting power (which includes the power to vote or direct the voting of such security) and/or
investment returns or power (which includes the power to dispose of, or direct the disposition of
such security) x x x."

9|Page
 While it is correct to state that beneficial ownership is that which may exist either
through voting power and/or investment returns, it does not follow, as espoused by the minority
opinion, that the SRC-IRR, in effect, recognizes a possible situation where voting power is not
commensurate to investment power. The "beneficial ownership" referred to in the definition,
while it may ultimately and indirectly refer to the overall ownership of the corporation, more
pertinently refers to the ownership of the share subject of the question: is it Filipino-owned or
not?

As noted earlier, the FIA-IRR states:

Compliance with the required Filipino ownership of a corporation shall be determined

on the basis of outstanding capital stock whether fully paid or not, but only such stocks which
are generally entitled to vote are considered.

For stocks to be deemed owned and held by Philippine citizens or Philippine nationals,
mere legal title is not enough to meet the required Filipino equity. Full beneficial ownership of
the stocks, coupled with appropriate voting rights is essential. Thus, stocks, the voting rights of
which have been assigned or transferred to aliens cannot be considered held by Philippine
citizens or Philippine nationals.

xxx

The term "full beneficial ownership" found in the FIA-IRR is to be understood in the
context of the entire paragraph defining the term "Philippine national". Mere legal title is not
enough to meet the required Filipino equity, which means that it is not sufficient that a share is
registered in the name of a Filipino citizen or national, i.e., he should also have full beneficial
ownership of the share. If the voting right of a share held in the name of a Filipino citizen or
national is assigned or transferred to an alien, that share is not to be counted in the
determination of the required Filipino equity. In the same vein, if the dividends and other fruits
and accessions of the share do not accrue to a Filipino citizen or national, then that share is also
to be excluded or not counted.

In this regard, it is worth reiterating the Court's pronouncement in the Gamboa

Decision, which is consistent with the FIA-IRR, viz:

Mere legal title is insufficient to meet the 60 percent Filipino-owned "capital" required in
the Constitution. Full beneficial ownership of 60 percent of the outstanding capital stock,
coupled with 60 percent of the voting rights, is required. x x x

xxxx

The legal and beneficial ownership of 60 percent of the outstanding capital stock must
rest in the hands of Filipinos in accordance with the constitutional mandate. Full beneficial
ownership of 60 percent of the outstanding capital stock, coupled with 60 percent of the voting
rights, is constitutionally required (for the State's grant of authority to operate a public utility. x
x x.

xxx

Given that beneficial ownership of the outstanding capital stock of the public utility
corporation has to be determined for purposes of compliance with the 60% Filipino ownership
requirement, the definition in the SRC-IRR can now be applied to resolve only the question of
who is the beneficial owner or who has beneficial ownership of each "specific stock" of the said
corporation. Thus, if a "specific stock" is owned by a Filipino in the books of the corporation, but
the stock's voting power or disposing power belongs to a foreigner, then that "specific stock" will
not be deemed as "beneficially owned" by a Filipino. (Roy v. Herbosa, G.R. No. 207246,
November 22, 2016)

Voting power or investment power must be present for beneficial ownership

to exist: If the Filipino has the "specific stock's" voting power (he can vote the stock
or direct another to vote for him), or the Filipino has the investment power over the
"specific stock" (he can dispose of the stock or direct another to dispose it for him),
or he has both, then such Filipino is the "beneficial owner" of that "specific stock"
and that "specific stock" is considered (or counted) as part of the 60% Filipino
ownership of the corporation.

Stated inversely, if the Filipino has the "specific stock's" voting power (he can vote the
stock or direct another to vote for him), or the Filipino has the investment power over the
"specific stock" (he can dispose of the stock or direct another to dispose it for him), or he has

10 | P a g e
both (he can vote and dispose of the "specific stock" or direct another to vote or dispose it for
him), then such Filipino is the "beneficial owner" of that "specific stock" and that "specific stock"
is considered (or counted) as part of the 60% Filipino ownership of the corporation. In the end,
all those "specific stocks" that are determined to be Filipino (per definition of "beneficial owner"
or "beneficial ownership") will be added together and their sum must be equivalent to at least
60% of the total outstanding shares of stock entitled to vote in the election of directors and at
least 60% of the total number of outstanding shares of stock, whether or not entitled to vote in
the election of directors. (Roy v. Herbosa, G.R. No. 207246, November 22, 2016)

Where the 60-40 Filipino-foreign equity ownership is in doubt, the

Grandfather Rule will apply. Thus, the combined totals in the Investing Corporation
and the Investee Corporation must be traced (i.e., "grandfathered") to determine
the total percentage of Filipino ownership. The ultimate Filipino ownership of the
shares must first be traced to the level of the Investing Corporation and added to
the shares directly owned in the Investee Corporation.

"Corporate layering" is admittedly allowed by the FIA; but if it is used to circumvent the
Constitution and pertinent laws, then it becomes illegal. x x x

xxx

x x x Sec. 2 [of Art. XII of the 1987 Constitution] which focuses on the State entering into
different types of agreements for the exploration, development, and utilization of natural
resources with entities who are deemed Filipino due to 60 percent ownership of capital is
pertinent to this case, since the issues are centered on the utilization of our country’s natural
resources or specifically, mining. Thus, there is a need to ascertain the nationality of petitioners
since, as the Constitution so provides, such agreements are only allowed corporations or
associations "at least 60 percent of such capital is owned by such citizens."

x x x It is apparent that it is the intention of the framers of the Constitution to apply the
grandfather rule in cases where corporate layering is present.

xxx

Under the above-quoted SEC Rules, there are two cases in determining the nationality of
the Investee Corporation. The first case is the ‘liberal rule’, later coined by the SEC as the
Control Test in its 30 May 1990 Opinion, and pertains to the portion in said Paragraph 7 of the
1967 SEC Rules which states, ‘(s)hares belonging to corporations or partnerships at least 60% of
the capital of which is owned by Filipino citizens shall be considered as of Philippine
nationality.’ Under the liberal Control Test, there is no need to further trace the ownership of the
60% (or more) Filipino stockholdings of the Investing Corporation since a corporation which is
at least 60% Filipino-owned is considered as Filipino.

The second case is the Strict Rule or the Grandfather Rule Proper and pertains to the
portion in said Paragraph 7 of the 1967 SEC Rules which states, "but if the percentage of Filipino
ownership in the corporation or partnership is less than 60%, only the number of shares
corresponding to such percentage shall be counted as of Philippine nationality." Under the Strict
Rule or Grandfather Rule Proper, the combined totals in the Investing Corporation and the
Investee Corporation must be traced (i.e., "grandfathered") to determine the total percentage of
Filipino ownership.

Moreover, the ultimate Filipino ownership of the shares must first be traced to the level
of the Investing Corporation and added to the shares directly owned in the Investee Corporation
x x x.

xxxx

In other words, based on the said SEC Rule and DOJ Opinion, the Grandfather Rule or
the second part of the SEC Rule applies only when the 60-40 Filipino-foreign equity ownership
is in doubt (i.e., in cases where the joint venture corporation with Filipino and foreign
stockholders with less than 60% Filipino stockholdings [or 59%] invests in other joint venture
corporation which is either 60-40% Filipino-alien or the 59% less Filipino). Stated differently,
where the 60-40 Filipino- foreign equity ownership is not in doubt, the Grandfather Rule will
not apply.

11 | P a g e
 After a scrutiny of the evidence extant on record, xxxx, doubt prevails and persists in the
corporate ownership of petitioners. Also, as found by the CA, doubt is present in the 60-40
Filipino equity ownership of petitioners Narra, McArthur and Tesoro, since their common
investor, the 100% Canadian corporation––MBMI, funded them. However, petitioners also
claim that there is "doubt" only when the stockholdings of Filipinos are less than 60%.

The assertion of petitioners that "doubt" only exists when the stockholdings are less than
60% fails to convince this Court. DOJ Opinion No. 20, which petitioners quoted in their
petition, only made an example of an instance where "doubt" as to the ownership of the
corporation exists. It would be ludicrous to limit the application of the said word only to the
instances where the stockholdings of non-Filipino stockholders are more than 40% of the total
stockholdings in a corporation. The corporations interested in circumventing our laws would
clearly strive to have "60% Filipino Ownership" at face value. xxxx

Obviously, the instant case presents a situation which exhibits a scheme employed by
stockholders to circumvent the law, creating a cloud of doubt in the Court’s mind. (Narra Nickel
Mining and Development Corp. v. Redmont Consolidated Mines Corp., G.R. No. 195580, April
21, 2014)

AUTONOMY OF LOCAL GOVERNMENTS

The policy of ensuring the autonomy of local governments was not intended
to create an imperium in imperio and install intra-sovereign political subdivisions
independent of the sovereign state. Local ordinances must be inconsistent with the
laws or policy of the State. Local governments are precluded from regulating
conduct already covered by a statute involving the same subject matter. Thus, an
ordinance that seeks to control and regulate the use of ground water within a City, a
power that pertains solely to the NWRB under the Water Code – is ultra vires and
void.

The policy of ensuring the autonomy of local governments was not intended to create
an imperium in imperio and install intra-sovereign political subdivisions independent of the
sovereign state. As agents of the state, local governments should· bear in mind that the police
power devolved to them by law must be, at all times, exercised in a manner consistent with the
will of their principal.

Xxx

On May 28, 2001, the Sangguniang Panlungsod [of Batangas City] enacted the Assailed
Ordinance which requires heavy industries operating along the portions of Batangas Bay within
the territorial jurisdiction of Batangas City to construct desalination plants to facilitate the use
of seawater as coolant for their industrial facilities.

Heavy industries subject of the Assailed Ordinance had until May 28, 2006 to comply
with its provisions. Among the facilities affected by the Assailed Ordinance is PSPC's Tabangao
Refinery.

xxx

Batangas City contends that it has the legal authority to enact ordinances in the exercise
of its police power for the purpose of promoting the general welfare of its inhabitants. Thus, it
asserts that it has the power to regulate PSPC's and SPEX's right to use ground water, as
continued use would be injurious to public interest.

Further, Batangas City insists that there is factual basis to justify the enactment of the
Assailed Ordinance. As testified to by barangay captains Joel Caaway and Calixto Villena, a
gradual change in the quality and quantity of ground water had taken place due to the increase
in the number of industrial plants along Batangas Bay. xxx

xxx

The Assailed Ordinance is void for being ultra vires, for being contrary to existing law,
and for lack of evidence showing the existence of factual basis for its enactment.

xxxx

12 | P a g e
 Batangas City claims that the enactment of the Assailed Ordinance constitutes a valid
exercise of its police power. This claim is erroneous.

xxxx

Since LGUs exercise delegated police power as agents of the State, it is incumbent upon
them to act in conformity to the will of their principal, the State. Necessarily, therefore,
ordinances enacted pursuant to the general welfare clause may not subvert the State's will by
contradicting national statutes. Thus, in Batangas CATV, Inc. v. Court of Appeals, the Court
struck down an ordinance enacted by Batangas City which granted the Sangguniang
Panlungsod the power to fix subscriber rates charged by CATV providers operating within the
former's territory, as this directly violated a general law which grants such power exclusively to
the National Telecommunications Commission. In so ruling, the Court stressed that
municipalities are precluded from regulating conduct already covered by a statute involving the
same subject matter, hence:
In De la Cruz vs. Paraz, we laid the general rule "that ordinances passed by virtue
of the implied power found in the general welfare clause must be reasonable, consonant
with the general powers and purposes of the corporation, and not inconsistent with the
laws or policy of the State."

xxxx

In this regard, it is appropriate to stress that where the state legislature has made
provision for the regulation of conduct, it has manifested its intention that the subject
matter shall be fully covered by the statute, and that a municipality, under its general
powers, cannot regulate the same conduct.xxxx

It is a fundamental principle that municipal ordinances are inferior in status and

subordinate to the laws of the state. An ordinance in conflict with a state law of general
character and statewide application is universally held to be invalid. xxx In every power to
pass ordinances given to a municipality, there is an implied restriction that the
ordinances shall be consistent with the general law.x x x (Emphasis and underscoring
supplied)

In this Petition, the Court is called upon to determine whether the control and regulation
of the use of water may be made subject of a city ordinance under the regime of the Water Code -
a national statute governing the same subject matter.

The Water Code governs the ownership, appropriation, utilization, exploitation,

development, conservation and protection of water resources. Under Article 3 thereof, water
resources are placed under the control and regulation of the government through the National
Water Resources Council, now the NWRB. In turn, the privilege to appropriate and use water is
one which is exclusively granted and regulated by the State through water permits issued by the
NWRB. xxx

Conversely, the power to modify, suspend, cancel or revoke water permits already issued
also rests with NWRB.

On the other hand, the avowed purpose of the Assailed Ordinance, as stated in its
whereas clauses, is the protection of local aquifers for the benefit of the inhabitants of Batangas
City. Accordingly, the Assailed Ordinance mandates all heavy industries operating along
Batangas Bay to use seawater in the operation of their respective facilities, and install
desalination plants for this purpose. Failure to comply with this mandatory requirement would
have the effect of precluding continuous operation, and exposing noncompliant parties to penal
and administrative sanctions.

There is no doubt, therefore, that the Assailed Ordinance effectively contravenes the
provisions of the Water Code as it arrogates unto Batangas City the power to control and
regulate the use of ground water which, by virtue of the provisions of the Water Code, pertains
solely to the NWRB. By enacting the Assailed Ordinance, Batangas City acted in excess of the
powers granted to it as an LGU, rendering the Assailed Ordinance ultra vires.

Being ultra vires, the Assailed Ordinance, in its entirety, is null and void. (City of
Batangas v. Pilipinas Shell, G.R. No. 195003, June 7, 2017)

Congress retains control of the local government units although in

significantly reduced degree now than under our previous Constitutions. True, there
are certain notable innovations in the Constitution, like the direct conferment on the

13 | P a g e
local government units of the power to tax, which cannot now be withdrawn by
mere statute. By and large, however, the national legislature is still the principal of
the local government units, which cannot defy its will or modify or violate it.

An ordinance must pass muster under the test of constitutionality and the test of
consistency with the prevailing laws. If not, it is void. xxxx As to conformity with existing
statutes, Batangas CATV, Inc. v. Court of Appeals has this to say:
It is a fundamental principle that municipal ordinances are inferior in status and
subordinate to the laws of the state. An ordinance in conflict with a state law of general
character and statewide application is universally held to be invalid. xxx In the language
of Justice Isagani Cruz (ret.), this Court, in Magtajas vs. Pryce Properties Corp., Inc.,
ruled that:

xxx

This basic relationship between the national legislature and the local government
units has not been enfeebled by the new provisions in the Constitution strengthening the
policy of local autonomy. xxx Congress retains control of the local government units
although in significantly reduced degree now than under our previous Constitutions. The
power to create still includes the power to destroy. The power to grant still includes the
power to withhold or recall. True, there are certain notable innovations in the
Constitution, like the direct conferment on the local government units of the power to tax,
which cannot now be withdrawn by mere statute. By and large, however, the national
legislature is still the principal of the local government units, which cannot defy its will or
modify or violate it.

xxx [T]he policy of ensuring the autonomy of local governments was never
intended by the drafters of the 1987 Constitution to create an imperium in imperio and
install an intra-sovereign political subdivision independent of a single sovereign state.
(Ferrer v. Bautista, G.R. No. 210551, June 30, 2015)

Consistent with the state policy of local autonomy as guaranteed by

the 1987 Constitution, the grant and release of the hospitalization and health
care insurance benefits given to local government officials and employees,
through an ordinance passed by petitioner’s Sangguniang Panlalawigan – is
valid – even without approval of the President. An LGU is only under the
President’s general supervision, not control.

In the present case, petitioner, through an approved Sangguniang

Panlalawigan resolution, granted and released the disbursement for the hospitalization
and health care insurance benefits of the province’s officials and employees without any
prior approval from the President. The COA disallowed the premium payment for such
benefits since petitioner disregarded AO 103 and RA 6758.

We disagree with the COA. From a close reading of the provisions of AO 103,
petitioner did not violate the rule of prior approval from the President since Section 2
states that the prohibition applies only to "government offices/agencies, including
government-owned and/or controlled corporations, as well as their respective
governing boards." Nowhere is it indicated in Section 2 that the prohibition also applies
to LGUs. The requirement then of prior approval from the President under AO 103 is
applicable only to departments, bureaus, offices and government-owned and controlled
corporations under the Executive branch. In other words, AO 103 must be observed by
government offices under the President’s control as mandated by Section 17, Article VII
of the Constitution which states:

Section 17. The President shall have control of

all executive departments, bureaus and offices. He shall ensure that
the laws be faithfully executed. (Emphasis supplied)

Being an LGU, petitioner is merely under the President’s general supervision

pursuant to Section 4, Article X of the Constitution:

Sec. 4. The President of the Philippines shall exercise

general supervision over local governments. Provinces with
respect to component cities and municipalities, and cities and
municipalities with respect to component barangays shall ensure that the
acts of their component units are within the scope of their prescribed
powers and functions. (Emphasis supplied)

14 | P a g e
 The President’s power of general supervision means the power of a superior
officer to see to it that subordinates perform their functions according to law. This is
distinguished from the President’s power of control which is the power to alter or modify
or set aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the President over that of the subordinate officer. The power
of control gives the President the power to revise or reverse the acts or decisions of a
subordinate officer involving the exercise of discretion.

Since LGUs are subject only to the power of general supervision of the President,
the President’s authority is limited to seeing to it that rules are followed and laws are
faithfully executed. The President may only point out that rules have not been followed
but the President cannot lay down the rules, neither does he have the discretion to
modify or replace the rules. Thus, the grant of additional compensation like
hospitalization and health care insurance benefits in the present case does not need the
approval of the President to be valid.

xxx

Thus, consistent with the state policy of local autonomy as guaranteed by the
1987 Constitution, under Section 25, Article II and Section 2, Article X, and the Local
Government Code of 1991, we declare that the grant and release of the hospitalization
and health care insurance benefits given to petitioner’s officials and employees were
validly enacted through an ordinance passed by petitioner’s Sangguniang
Panlalawigan.

In sum, since petitioner’s grant and release of the questioned disbursement

without the President’s approval did not violate the President’s directive in AO 103, the
COA then gravely abused its discretion in applying AO 103 to disallow the premium
payment for the hospitalization and health care insurance benefits of petitioner’s officials
and employees. (Province of Negros Occidental v. Commissioners, Commission on
Audit, G.R. No. 182574, September 28, 2010)

FULL PUBLIC DISCLOSURE OF ALL TRANSACTIONS

INVOLVING PUBLIC INTERESTS

The constitutional guarantee of the right to information on matters of public

concern enunciated in Section 7 of Article III of the 1987 Constitution complements
the State’s policy of full public disclosure in all transactions involving public interest
expressed in Section 28 of Article II of the 1987 Constitution. These provisions are
aimed at ensuring transparency in the Government.

On May 23, 2005, the [Committee on Trade Related Matteres], an office under the
National Economic Development Authority (NEDA), held a meeting in which it resolved to
recommend to President Gloria Macapagal-Arroyo the lifting of the suspension of the tariff
reduction schedule on petrochemicals and certain plastic products, thereby reducing the
Common Effective Preferential Tariff (CEPT) rates on products covered by Executive Order
(E.O.) No. 161 from 7% or 10% to 5% starting July 2005.

On June 9, 2005, Wilfredo A. Paras (Paras), then the Chairman of the Association of
Petrochemical Manufacturers of the Philippines (APMP), xxx wrote to the CTRM Secretariat xxx
to request a copy of the minutes of the meeting held on May 23, 2005.

Director Mendoza denied the request through her letter of June 20, 2005 xxx

xxx

[T]he issue is whether or not the CTRM may be compelled by mandamus to furnish the
petitioner with a copy of the minutes of the May 23, 2005 meeting based on the constitutional
right to information on matters of public concern and the State’s policy of full public disclosure.
The request for information was motivated by his desire to understand the basis for the CTRM’s
recommendation that allegedly caused tremendous losses to the petrochemical industry through
the issuance of E.O. No. 486.

xxx [T]he petitioner invokes the following provisions of the 1987 Constitution and R.A.
No. 6713, xxx:
Section 28 of Article II of the 1987 Constitution:

15 | P a g e
 Section 28. Subject to reasonable conditions prescribed by law, the State adopts
and implements a policy of full public disclosure of all its transactions involving public
interest.

Section 7 of Article III of the 1987 Constitution:

Section 7. The right of the people to information on matters of public concern

shall be recognized. Access to official records, and to documents, and papers pertaining
to official acts, transactions, or decisions, as well as to government research data used
as basis for policy development, shall be afforded the citizen, subject to such limitations
as may be provided by law.

Section 1 of Article XI of the 1987 Constitution:

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

Section 5 of R.A. No. 6713:

Section 5. Duties of Public Officials and Employees. – In the performance of

their duties, all public officials and employees are under obligation to:

xxxx

(e) Make documents accessible to the public. – All public documents must be
made accessible to, and readily available for inspection by, the public within reasonable
working hours.

xxx

The constitutional guarantee of the right to information on matters of public concern

enunciated in Section 7 of Article III of the 1987 Constitution complements the State’s policy of
full public disclosure in all transactions involving public interest expressed in Section 28 of
Article II of the 1987 Constitution. These provisions are aimed at ensuring transparency in
policy-making as well as in the operations of the Government, and at safeguarding the exercise
by the people of the freedom of expression. In a democratic society like ours, the free exchange
of information is necessary, and can be possible only if the people are provided the proper
information on matters that affect them. (Sereno v. Committee on Trade and Related Matters,
February 1, 2016, G.R. No. 175210)

The people’s right to information is not absolute. Two requisites must concur
before the right to information may be compelled by writ of mandamus: 1) the
information sought must be in relation to matters of public concern or public
interest; and 2) it must not be exempt by law from the operation of the
constitutional guarantee.

But the people’s right to information is not absolute. Xxx It is limited to matters of public
concern, and is subject to such limitations as may be provided by law. Likewise, the State’s
policy of full public disclosure is restricted to transactions involving public interest, and is
further subject to reasonable conditions prescribed by law.

Two requisites must concur before the right to information may be compelled by writ
of mandamus. Firstly, the information sought must be in relation to matters of public concern
or public interest. And, secondly, it must not be exempt by law from the operation of the
constitutional guarantee.

As to the first requisite, there is no rigid test in determining whether or not a particular
information is of public concern or public interest. Both terms cover a wide-range of issues that
the public may want to be familiar with either because the issues have a direct effect on them or
because the issues "naturally arouse the interest of an ordinary citizen." xxx

In his capacity as a citizen and as the Executive Director of the APMP, the petitioner has
sought to obtain official information dealing with the policy recommendation of the CTRM with
respect to the reduction of tariffs on petrochemical resins and plastic products. Xxx

xxx [T]he position of the petrochemical industry as an essential contributor to the overall
growth of our country’s economy easily makes the information sought a matter of public
concern or interest. (Sereno v. Committee on Trade and Related Matters, February 1, 2016,
G.R. No. 175210)

16 | P a g e
 The constitutional guarantee of the people’s right to information does not
cover national security matters and intelligence information, trade secrets and
banking transactions and criminal matters, diplomatic correspondence, closed-door
Cabinet meeting, executive sessions of either house of Congress, and internal
deliberations of the Supreme Court. Close-door Cabinet meetings are not covered in
order to allow the free exchange of ideas among Government officials.

The second requisite is that the information requested must not be excluded by law from
the constitutional guarantee. In that regard, the Court has already declared that the
constitutional guarantee of the people’s right to information does not cover national security
matters and intelligence information, trade secrets and banking transactions and criminal
matters. Equally excluded from coverage of the constitutional guarantee are diplomatic
correspondence, closed-door Cabinet meeting and executive sessions of either house of
Congress, as well as the internal deliberations of the Supreme Court. In Chavez v. Public Estates
Authority, the Court has ruled that the right to information does not extend to matters
acknowledged as "privileged information under the separation of powers," which include
"Presidential conversations, correspondences, or discussions during closed-door Cabinet
meetings." Likewise exempted from the right to information are "information on military and
diplomatic secrets, information affecting national security, and information on investigations of
crimes by law enforcement agencies before the prosecution of the accused."

The respondents claim exemption on the ground that the May 23, 2005 meeting was
classified as a closed-door Cabinet meeting by virtue of the committee’s composition and the
nature of its mandate dealing with matters of foreign affairs, trade and policy-making. They
assert that the information withheld was within the scope of the exemption from disclosure
because the CTRM meetings were directly related to the exercise of the sovereign prerogative of
the President as the Head of State in the conduct of foreign affairs and the regulation of trade, as
provided in Section 3 (a) of Rule IV of the Rules Implementing R.A. No. 6713.

The authority of the CTRM as the advisory body of the President and the NEDA is set
forth in E.O. No. 230, series of 1987 xxx

xxx

The respondents are correct. It is always necessary, given the highly important and
complex powers to fix tariff rates vested in the President, that the recommendations submitted
for the President’s consideration be well-thought out and well-deliberated. The Court has
expressly recognized in Chavez v. Public Estates Authority that "a frank exchange of exploratory
ideas and assessments, free from the glare of publicity and pressure by interested parties, is
essential to protect the independence of decision-making of those tasked to exercise
Presidential, Legislative and Judicial power." In Almonte v. Vasquez, the Court has stressed the
need for confidentiality and privacy, stating thus: "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." Without doubt, therefore,
ensuring and promoting the free exchange of ideas among the members of the committee tasked
to give tariff recommendations to the President were truly imperative.

Every claim of exemption, being a limitation on a right constitutionally granted to the

people, is liberally construed in favor of disclosure and strictly against the claim of
confidentiality. However, the claim of privilege as a cause for exemption from the obligation to
disclose information must be clearly asserted by specifying the grounds for the exemption. In
case of denial of access to the information, it is the government agency concerned that has the
burden of showing that the information sought to be obtained is not a matter of public concern,
or that the same is exempted from the coverage of the constitutional guarantee. We reiterate,
therefore, that the burden has been well discharged herein.

xxx

We cannot side with the petitioner.

In Senate of the Philippines v. Ermita, we have said that executive privilege is properly
invoked in relation to specific categories of information, not to categories of persons. As such,
the fact that some members of the committee were not part of the President’s Cabinet was of no
moment. What should determine whether or not information was within the ambit of the
exception from the people’s right to access to information was not the composition of the body,
but the nature of the information sought to be accessed. xxxx

17 | P a g e
 In case of conflict, there is a need to strike a balance between the right of the people and
the interest of the Government to be protected. Here, the need to ensure the protection of the
privilege of non-disclosure is necessary to allow the free exchange of ideas among Government
officials as well as to guarantee the well-considered recommendation free from interference of
the inquisitive public. (Sereno v. Committee on Trade and Related Matters, February 1, 2016,
G.R. No. 175210)

Information on on-going evaluation or review of bids or proposals being

undertaken by the bidding or review committee is not immediately accessible under
the right to information. While the evaluation or review is still on-going, there are
no "official acts, transactions, or decisions" on the bids or proposals. However, once
the committee makes its official recommendation, there arises a "definite
proposition" on the part of the government. From this moment, the public's right to
information attaches. The constitutional right to information includes official
information on on-going negotiations before a final contract.

DFA insists that we determine whether the evidence sought to be subpoenaed is covered
by the deliberative process privilege. DFA contends that the RTC erred in holding that the
deliberative process privilege is no longer applicable in this case. According to the RTC, based
on Chavez v. Public Estates Authority, "acts, transactions or decisions are privileged only before
a definite proposition is reached by the agency," and since, in this case, DFA not only made "a
definite proposition" but already entered into a contract then the evidence sought to be
produced is no longer privileged.

We have held in Chavez v. Public Estates Authority that:

Information, however, on on-going evaluation or review of bids or proposals
being undertaken by the bidding or review committee is not immediately accessible under
the right to information. While the evaluation or review is still on-going, there are no
"official acts, transactions, or decisions" on the bids or proposals. However, once the
committee makes its official recommendation, there arises a "definite proposition" on the
part of the government. From this moment, the public's right to information attaches,
and any citizen can access all the non-proprietary information leading to such definite
proposition.

xxxx

The right to information, however, does not extend to matters recognized as

privileged information under the separation of powers. The right does not also apply to
information on military and diplomatic secrets, information affecting national security,
and information on investigations of crimes by law enforcement agencies before the
prosecution of the accused, which courts have long recognized as confidential. The right
may also be subject to other limitations that Congress may impose by law.

There is no claim by PEA that the information demanded by petitioner is

privileged information rooted in the separation of powers. The information does not
cover Presidential conversations, correspondences, or discussions during closed-door
Cabinet meetings which, like internal deliberations of the Supreme Court and other
collegiate courts, or executive sessions of either house of Congress, are recognized as
confidential. This kind of information cannot be pried open by a co-equal branch of
government. A frank exchange of exploratory ideas and assessments, free from the glare
of publicity and pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and Judicial power.
This is not the situation in the instant case.

We rule, therefore, that the constitutional right to information includes official

information on on-going negotiations before a final contract. The information, however,
must constitute definite propositions by the government and should not cover recognized
exceptions like privileged information, military and diplomatic secrets and similar
matters affecting national security and public order. Congress has also prescribed other
limitations on the right to information in several legislations. (Emphasis supplied)

(Department of Foreign Affairs v. BCA International, June 29, 2016, G.R. No. 210858)

Privileged information is outside the scope of the constitutional right to

information, just like military and diplomatic secrets and similar matters affecting
national security and public order. The deliberative process privilege -- involving as
it does the deliberative process of reaching a decision -- is one kind of privileged
information. Deliberative process privilege protects from disclosure advisory
18 | P a g e
opinions, recommendations, and deliberations comprising part of a process by
which governmental decisions and policies are formulated.

Contrary to the RTC's ruling, there is nothing in our Chavez v. Public Estates Authority,
ruling which states that once a "definite proposition" is reached by an agency, the privileged
character of a document no longer exists. On the other hand, we hold that before a "definite
proposition" is reached by an agency, there are no "official acts, transactions, or decisions" yet
which can be accessed by the public under the right to information. Only when there is an
official recommendation can a "definite proposition" arise and, accordingly, the public's right to
information attaches. However, this right to information has certain limitations and does not
cover privileged information to protect the independence of decision-making by the
government.

Chavez v. Public Estates Authority expressly and unequivocally states that the right to
information "should not cover recognized exceptions like privileged information, military and
diplomatic secrets and similar matters affecting national security and public order." Clearly,
Chavez v. Public Estates Authority, expressly mandates that "privileged information" should be
outside the scope of the constitutional right to information, just like military and diplomatic
secrets and similar matters affecting national security and public order. In these exceptional
cases, even the occurrence of a "definite proposition" will not give rise to the public's right to
information.

Deliberative process privilege is one kind of privileged information, which is within the
exceptions of the constitutional right to information. In In Re: Production of Court Records and
Documents and the Attendance of Court Officials and Employees as Witnesses, we held that:
Court deliberations are traditionally recognized as privileged communication.
Section 2, Rule 10 of the IRSC provides:

Section 2. Confidentiality of court sessions. - Court sessions are executive in

character, with only the Members of the Court present. Court deliberations are
confidential and shall not be disclosed to outside parties, except as may be provided
herein or as authorized by the Court.

Justice Abad discussed the rationale for the rule in his concurring opinion to the
Court Resolution in Arroyo v. De Lima (TRO on Watch List Order case): the rules on
confidentiality will enable the Members of the Court to "freely discuss the issues without
fear of criticism for holding unpopular positions" or fear of humiliation for one's
comments. The privilege against disclosure of these kinds of information/communication
is known as deliberative process privilege, involving as it does the deliberative process of
reaching a decision. xxxx

The privilege is not exclusive to the Judiciary. We have in passing recognized the
claim of this privilege by the two other branches of government in Chavez v. Public
Estates Authority (speaking through J. Carpio) when the Court declared that -

[t]he information x x x like internal deliberations of the Supreme Court and other
collegiate courts, or executive sessions of either house of Congress, are recognized as
confidential. This kind of information cannot be pried open by a co-equal branch of
government. A frank exchange of exploratory ideas and assessments, free from the glare
of publicity and pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and Judicial power.
(Emphasis supplied)

In Akbayan v. Aquino, we adopted the ruling xxx that the deliberative process privilege
protects from disclosure "advisory opinions, recommendations, and deliberations comprising
part of a process by which governmental decisions and policies are formulated." We explained
that "[w]ritten advice from a variety of individuals is an important element of the government's
decision-making process and that the interchange of advice could be stifled if courts forced the
government to disclose those recommendations"; thus, the privilege is intended "to prevent the
'chilling' of deliberative communications."

The privileged character of the information does not end when an agency has adopted a
definite proposition or when a contract has been perfected or consummated; otherwise, the
purpose of the privilege will be defeated.

The deliberative process privilege applies if its purpose is served, that is, "to protect the
frank exchange of ideas and opinions critical to the government's decision[-]making process
where disclosure would discourage such discussion in the future." xxxx [C]ommunications have
not lost the privilege even when the decision that the documents preceded is finally made.
(Department of Foreign Affairs v. BCA International, June 29, 2016, G.R. No. 210858)

19 | P a g e
 Two fundamental requirements for the deliberative process privilege to be
invoked: First, the communication must be pre-decisional, i.e., "antecedent to the
adoption of an agency policy." Second, the communication must be deliberative, i.e.,
"a direct part of the deliberative process in that it makes recommendations or
expresses opinions on legal or policy matters." Records which are "predecisional"
and "deliberative" in nature - part of or related to the deliberative process, i.e.,
notes, drafts, research papers, internal discussions, internal memoranda, records of
internal deliberations, and similar papers - are protected and cannot be the subject
of a subpoena.

Traditionally, U.S. courts have established two fundamental requirements, both of which
must be met, for the deliberative process privilege to be invoked. First, the communication must
be predecisional, i.e., "antecedent to the adoption of an agency policy." Second, the
communication must be deliberative, i.e., "a direct part of the deliberative process in that it
makes recommendations or expresses opinions on legal or policy matters." It must reflect the
"give-and-take of the consultative process." xxxx

Finally, in addition to assessing whether the material is predecisional and deliberative,

and in order to determine if disclosure of the material is likely to adversely affect the purposes of
the privilege, courts inquire whether "the document is so candid or personal in nature that
public disclosure is likely in the future to stifle honest and frank communication within the
agency." As a consequence, the deliberative process privilege typically covers recommendations,
advisory opinions, draft documents, proposals, suggestions, and other subjective documents
that reflect the personal opinions of the writer rather than the policy of the agency.

Thus, "[t]he deliberative process privilege exempts materials that are 'predecisional' and
'deliberative,' but requires disclosure of policy statements and final opinions 'that have the force
of law or explain actions that an agency has already taken."’

xxx T]he meeting notes that reflect the exchange of opinions between agency personnel
or divisions of agency are covered by the deliberative process privilege because they "reflect the
agency's group thinking in the process of working out its policy" and are part of the deliberative
process in arriving at the final position. xxx

xxx [R]ecords which are "predecisional" and "deliberative" in nature - in particular,

documents and other communications which are part of or related to the deliberative process,
i.e., notes, drafts, research papers, internal discussions, internal memoranda, records of internal
deliberations, and similar papers - are protected and cannot be the subject of a subpoena if
judicial privilege is to be preserved. We further held that this privilege is not exclusive to the
Judiciary and cited our ruling in Chavez v. Public Estates Authority.

The deliberative process privilege can also be invoked in arbitration proceedings under
RA 9285. (Department of Foreign Affairs v. BCA International, June 29, 2016, G.R. No.
210858)

The reasons or bases for the deliberative process privilege: first, the privilege
protects candid discussions within an agency; second, it prevents public confusion
from premature disclosure of agency opinions before the agency establishes final
policy; and third, it protects the integrity of an agency's decision; the public should
not judge officials based on information they considered prior to issuing their final
decisions.

"Deliberative process privilege contains three policy bases: first, the privilege protects
candid discussions within an agency; second, it prevents public confusion from premature
disclosure of agency opinions before the agency establishes final policy; and third, it protects the
integrity of an agency's decision; the public should not judge officials based on information they
considered prior to issuing their final decisions." Stated differently, the privilege serves "to
assure that subordinates within an agency will feel free to provide the decision[-]maker with
their uninhibited opinions and recommendations without fear of later being subject to public
ridicule or criticism; to protect against premature disclosure of proposed policies before they
have been finally formulated or adopted; and to protect against confusing the issues and
misleading the public by dissemination of documents suggesting reasons and rationales for a
course of action which were not in fact the ultimate reasons for the agency's action."
(Department of Foreign Affairs v. BCA International, June 29, 2016, G.R. No. 210858)

20 | P a g e
 JUDICIAL REVIEW

Requisites for Judicial Review: (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.

The power of judicial review, like all powers granted by the Constitution, is subject to
certain limitations. Petitioner must comply with all the requisites for judicial review before this
court may take cognizance of the case. The requisites are:

(1) there must be an actual case or controversy calling for the exercise of judicial power;

(2) the person challenging the act must have the standing to question the validity of the
subject act or issuance; otherwise stated, he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a result of its enforcement;

(3) the question of constitutionality must be raised at the earliest opportunity; and

(4) the issue of constitutionality must be the very lis mota of the case. (In The Matter Of:
Save The Supreme Court Judicial Independence and Fiscal Autonomy Movements v. Abolition
of Judiciary Development Fund and Reduction of Fiscal Autonomy, UDK-15143, January 21,
2015)

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. (Samahan Ng Mga Progresibong
Kabataan v. Quezon City, August 8, 2017, G.R. No. 225442)

The requisites for the exercise of the power of judicial review are the following, namely:
(1) there must bean actual case or justiciable controversy before the Court; (2) the question
before the Court must be ripe for adjudication; (3) the person challenging the act must be a
proper party; and (4) the issue of constitutionality must be raised at the earliest opportunity and
must be the very litis mota of the case. (Araullo v. Aquino, G.R. No. 209287, July 1, 2014)

ACTUAL CASE OR CONTROVERSY REQUIREMENT

Actual case requirement: There must be 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. An actual case or
controversy involves a conflict of legal rights, an assertion of opposite legal claims
susceptible of judicial resolution. 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 and not a merely theoretical question or issue.

One of the requirements for this court to exercise its power of judicial review is the
existence of an actual controversy. This means that there must be "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." As emphasized by this court in
Information Technology Foundation of the Phils. v. Commission on Elections:

It is well-established in this jurisdiction that ". . . for a court to exercise its power
of adjudication, there must be an actual case or controversy — one which involves a
conflict of legal rights, an assertion of opposite legal claims susceptible of judicial
resolution; the case must not be moot or academic or based on extra-legal or other similar
considerations not cognizable by a court of justice. . . . [C]ourts do not sit to adjudicate

21 | P a g e
 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 and not a merely 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.

(In The Matter Of: Save The Supreme Court Judicial Independence and Fiscal
Autonomy Movements v. Abolition of Judiciary Development Fund and Reduction of Fiscal
Autonomy, UDK-15143, January 21, 2015)

Actual case: Pleadings before the court must show a violation of an existing
legal right or a controversy that is ripe for judicial determination. The Court cannot
render an advisory opinion. A policy that reduces the Court to an adviser for official
acts by the other departments that have not yet been done would unnecessarily tax
its resources. It is inconsistent with the Court’s role as final arbiter and adjudicator
and weakens the entire system of the Rule of Law.

For this court to rule on constitutional issues, there must first be a justiciable
controversy. Pleadings before this court must show a violation of an existing legal right or a
controversy that is ripe for judicial determination. In the concurring opinion in Belgica v.
Ochoa:

Basic in litigation raising constitutional issues is the requirement that

there must be an actual case or controversy. This Court cannot render an
advisory opinion. xxxx A policy that reduces this Court to an adviser for official
acts by the other departments that have not yet been done would unnecessarily
tax our resources. It is inconsistent with our role as final arbiter and adjudicator
and weakens the entire system of the Rule of Law. Our power of judicial review is
a duty to make a final and binding construction of law. xxx

(In The Matter Of: Save The Supreme Court Judicial Independence and Fiscal
Autonomy Movements v. Abolition of Judiciary Development Fund and Reduction of Fiscal
Autonomy, UDK-15143, January 21, 2015)

Judicial Review: There must be an actual case or controversy is one which

involves a conflict of legal rights, an assertion of opposite legal claims, susceptible
of judicial resolution. Moreover, the case must be ripe for adjudication, which means
the act being challenged has had a direct adverse effect on the individual
challenging it.

Basic in the exercise of judicial power - whether under the traditional or in the expanded
setting - is the presence of an actual case or controversy." "[A]n 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.' In
other words, 'there must be a contrariety of legal rights that can be interpreted and enforced on
the basis of existing law and jurisprudence." According to recent jurisprudence, in the Court's
exercise of its expanded jurisdiction under the 1987 Constitution, this requirement is simplified
"by merely requiring a prima facie showing of grave abuse of discretion in the assailed
governmental act."

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

ripeness. 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."

Applying these precepts, this Court finds that there exists an actual justiciable
controversy in this case given the evident clash of the parties' legal claims, particularly on
whether the Curfew Ordinances impair the minors' and parents' constitutional rights, and
whether the Manila Ordinance goes against the provisions of RA 9344. Based on their
22 | P a g e
asseverations, petitioners have - as will be gleaned from the substantive discussions below -
conveyed a prima facie case of grave abuse of discretion, which perforce impels this Court to
exercise its expanded jurisdiction. The case is likewise ripe for adjudication, considering that the
Curfew Ordinances were being implemented until the Court issued the TRO39 enjoining their
enforcement. The purported threat or incidence of injury is, therefore, not merely speculative or
hypothetical but rather, real and apparent. (Samahan Ng Mga Progresibong Kabataan v.
Quezon City, August 8, 2017, G.R. No. 225442)

The courts will decline to pass upon constitutional issues through advisory
opinions, bereft as they are of authority to resolve hypothetical or moot questions.
If there is a lack of a specific factual milieu from which a petition originates, any
pronouncement from the Court will be a purely advisory opinion and not a decision
binding on identified and definite parties and on a known set of facts. The Court is
barred from rendering a decision based on assumptions, speculations, conjectures
and hypothetical or fictional illustrations.

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 since the courts will decline to pass upon constitutional issues
through advisory opinions, bereft as they are of authority to resolve hypothetical or moot
questions. Related to the requirement of an actual case or controversy is the requirement of
"ripeness", and a question is ripe for adjudication when the act being challenged has a direct
adverse effect on the individual challenging it.

Petitioners have failed to show that there IS an actual case or controversy which is ripe
for adjudication.

The Petition and the Petition-in-Intervention identically allege:

xxx

Petitioners' hypothetical illustration as to how SEC-MC No. 8 "practically encourages

circumvention of the 60-40 ownership rule" is evidently speculative and fraught with
conjectures and assumptions. There is clearly wanting specific facts against which the veracity of
the conclusions purportedly following from the speculations and assumptions can be validated.
The lack of a specific factual milieu from which the petitions originated renders any
pronouncement from the Court as a purely advisory opinion and not a decision binding on
identified and definite parties and on a known set of facts.

xxx

The Court can only surmise or speculate on the situation or controversy that the
petitioners contemplate to present for judicial determination. Petitioners are likewise
conspicuously silent on the direct adverse impact to them of the implementation of SEC-MC No.
8. Thus, the petitions must fail because the Court is barred from rendering a decision based on
assumptions, speculations, conjectures and hypothetical or fictional illustrations, more so in the
present case which is not even ripe for decision. (Roy v. Herbosa, G.R. No. 207246, November
22, 2016)

A proposed bill does not present an actual justiciable controversy. The filing
of bills is within the legislative power of Congress and is not subject to judicial
restraint. Also, the judiciary cannot speculate on the constitutionality or
unconstitutionality of a bill that Congress may or may not pass.

Petitioner’s allegations show that he wants this court to strike down the proposed bills
abolishing the Judiciary Development Fund. x x x This court is not empowered to review
proposed bills because a bill is not a law.

[In] Montesclaros v. COMELEC x x x [t]his court held that:

Petitioners’ prayer to prevent Congress from enacting into law a proposed bill
lowering the membership age in the SK does not present an actual justiciable controversy.
A proposed bill is not subject to judicial review because it is not a law. A proposed bill
creates no right and imposes no duty legally enforceable by the Court. A proposed bill,
having no legal effect, violates no constitutional right or duty. The Court has no power to
declare a proposed bill constitutional or unconstitutional because that would be in the
nature of rendering an advisory opinion on a proposed act of Congress. x x x . . . . . . . . Thus,
23 | P a g e
 there can be no justiciable controversy involving the constitutionality of a proposed bill.
The Court can exercise its power of judicial review only after a law is enacted, not before.
Under the separation of powers, the Court cannot restrain Congress from passing any law,
or from setting into motion the legislative mill according to its internal rules. Thus, the
following acts of Congress in the exercise of its legislative powers are not subject to judicial
restraint: the filing of bills by members of Congress, the approval of bills by each chamber
of Congress, the reconciliation by the Bicameral Committee of approved bills, and the
eventual approval into law of the reconciled bills by each chamber of Congress. x x x

Similar to Montesclaros, petitioner is asking this court to stop Congress from passing
laws that will abolish the Judiciary Development Fund. This court has explained that the filing
of bills is within the legislative power of Congress and is “not subject to judicial restraint.” A
proposed bill produces no legal effects until it is passed into law. Under the Constitution, the
judiciary is mandated to interpret laws. It cannot speculate on the constitutionality or
unconstitutionality of a bill that Congress may or may not pass. It cannot rule on mere
speculations or issues that are not ripe for judicial determination. The petition, therefore, does
not present any actual case or controversy that is ripe for this court’s determination. (In The
Matter Of: Save The Supreme Court Judicial Independence and Fiscal Autonomy Movements
v. Abolition of Judiciary Development Fund and Reduction of Fiscal Autonomy, UDK-15143,
January 21, 2015)

An anticipatory petition must clearly show that the challenged prohibition

forbids the conduct or activity that a petitioner seeks to do. Otherwise, there is no
actual controversy. The possibility of abuse in the implementation of law does not
present an actual controversy. Allegations of abuse must be anchored on real events
before courts may step in to settle actual controversies.

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.

xxx

Prevailing American jurisprudence allows an adjudication on the merits when an

anticipatory petition clearly shows that the challenged prohibition forbids the conduct or activity
that a petitioner seeks to do, as there would then be a justiciable controversy.

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the
challenged provisions of RA 9372 forbid constitutionally protected conduct or activity that they
seek to do. No demonstrable threat has been established, much less a real and existing one.

Petitioners’ obscure allegations of sporadic surveillance and supposedly being tagged as

communist fronts in no way approximate a credible threat of prosecution. From these
allegations, the Court is being lured to render an advisory opinion, which is not its function.

Without any justiciable controversy, the petitions have become pleas for declaratory
relief, over which the Court has no original jurisdiction. Then again, declaratory actions
characterized by double contingency, where both the activity the petitioners intend to undertake
and the anticipated reaction to it of a public official are merely theorized, lie beyond judicial
review for lack of ripeness.

The possibility of abuse in the implementation of RA 9372 does not avail to take the
present petitions out of the realm of the surreal and merely imagined. xxx Allegations of abuse
must be anchored on real events before courts may step in to settle actual controversies
involving rights which are legally demandable and enforceable. (Southern Hemisphere
Engagement Network v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010)

Facial challenges and the actual controversy requirement: Distinguished from

an as-applied challenge which considers only extant facts affecting real litigants,
a facial invalidation is an examination of the entire law, 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 vagueness and overbreadth doctrines, as
grounds for a facial challenge, are not applicable to penal laws. A litigant cannot

24 | P a g e
thus successfully mount a facial challenge against a criminal statute on either
vagueness or overbreadth grounds.

Petitioners assail for being intrinsically vague and impermissibly broad the definition of
the crime of terrorism under RA 9372 xxxx, leaving law enforcement agencies with no standard
to measure the prohibited acts.

xxxx

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.

x x x x [T]he vagueness and overbreadth doctrines, as grounds for a facial challenge, are
not applicable to penal laws. A litigant cannot thus successfully mount
a facial challenge against a criminal statute on either vagueness or overbreadth
grounds. (Southern Hemisphere Engagement Network v. Anti-Terrorism Council, G.R. No.
178552, October 5, 2010)

Why facial challenges in free speech cases are allowed: The allowance of a
facial challenge in free speech cases is justified by the aim to avert the chilling
effect on protected speech. This rationale is inapplicable to plain penal statutes that
generally bear an in terrorem effect in deterring socially harmful conduct.

The allowance of a facial challenge in free speech cases is justified by the aim to avert the
chilling effect on protected speech x x x. As reflected earlier, this rationale is inapplicable to
plain penal statutes that generally bear an in terrorem effect in deterring socially harmful
conduct. xxxx

The Court x x x underscored that an on-its-face invalidation of penal statutes x x x may

not be allowed.

[T]he 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. The rationale is obvious.
If a facial challenge to a penal statute is permitted, the prosecution of crimes may be
hampered. No prosecution would be possible. A strong criticism against employing a facial
challenge in the case of penal statutes, if the same is allowed, would effectively go against
the grain of the doctrinal requirement of an existing and concrete controversy before
judicial power may be appropriately exercised. A facial challenge against a penal statute is,
at best, amorphous and speculative. It would, essentially, force the court to consider third
parties who are not before it. x x x

(Southern Hemisphere Engagement Network v. Anti-Terrorism Council, G.R. No. 178552,

October 5, 2010)

In overbreadth analysis, challenges to a statute are permitted to raise the

rights of third parties; and the court invalidates the entire statute "on its face," not
merely "as applied for." A particular litigant need not claim that a statute is
unconstitutional as applied to him or her. This is to remove the "chilling" or
deterrent effect of the overbroad statute on third parties.

It is settled, on the other hand, that the application of the overbreadth doctrine is limited
to a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable
only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of
invalidation in order to plot areas of protected speech, inevitably almost always under situations
not before the court, that are impermissibly swept by the substantially overbroad
regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially
overbroad if the court confines itself only to facts as applied to the litigants.

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
25 | P a g e
 litigant claims that a statute is unconstitutional as applied to him or her; if the litigant
prevails, the courts carve away the unconstitutional aspects of the law by invalidating its
improper applications on a case to case basis. 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 face," not merely "as
applied for" so that the overbroad 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
overbroad statute on third parties not courageous enough to bring suit. The Court assumes
that an overbroad laws "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.

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two
cases, observed that the US Supreme Court has not recognized an overbreadth doctrine outside
the limited context of the First Amendment, x x x. Attacks on overly broad statutes are justified
by the transcendent value to all society of constitutionally protected expression.

xxx

American jurisprudence instructs that vagueness challenges that do not involve the First
Amendment must be examined in light of the specific facts of the case at hand and not with
regard to the statute's facial validity.

xxx

As earlier reflected, petitioners have established neither an actual charge nor a credible
threat of prosecution under RA 9372. Even a limited vagueness analysis of the assailed
definition of terrorism is thus legally impermissible. The Court reminds litigants that judicial
power neither contemplates speculative counseling on a statutes future effect on hypothetical
scenarios nor allows the courts to be used as an extension of a failed legislative lobbying in
Congress. (Southern Hemisphere Engagement Network v. Anti-Terrorism Council, G.R. No.
178552, October 5, 2010)

Moot and academic principle and its exceptions: A case is moot and academic
if it ceases to present a justiciable controversy because of supervening events so
that a declaration thereon would be of no practical use or value. There are
recognized exceptions to this rule. This court has taken cognizance of moot and
academic cases when: (1) there was a grave violation of the Constitution; (2) the
case involved a situation of exceptional character and was of paramount public
interest; (3) the issues raised required the formulation of controlling principles to
guide the Bench, the Bar and the public; and (4) the case was capable of repetition
yet evading review.

A case is moot and academic if it "ceases to present a justiciable controversy because of

supervening events so that a declaration thereon would be of no practical use or value." When a
case is moot and academic, this court generally declines jurisdiction over it.

There are recognized exceptions to this rule. This court has taken cognizance of moot and
academic cases when:

(1) there was a grave violation of the Constitution; (2) the case involved a situation of
exceptional character and was of paramount public interest; (3) the issues raised required the
formulation of controlling principles to guide the Bench, the Bar and the public; and (4) the case
was capable of repetition yet evading review.

We may no longer act on petitioner’s prayer that his name be included in the certified list
of candidates and be printed on the ballots as a candidate for Member of the Sangguniang
Panlungsod. x x x [T]he May 13, 2013 elections had been concluded, with the winners already
proclaimed.

That this case is moot and academic, however, does not preclude us from setting forth
"controlling and authoritative doctrines" to be observed by respondent in motu proprio denying
due course to or cancelling certificates of candidacy of alleged nuisance candidates. This motu
proprio authority is always subject to the alleged nuisance candidate’s opportunity to be heard

26 | P a g e
— an essential element of procedural due process. (Timbol v. Comelec, G.R. No. 206004,
February 24, 2015)

Exceptions to the moot and academic principle: The constitutionality of the

Pork Barrel System involves a grave violation of the Constitution; presents a
situation of exceptional character as well as a matter of paramount public interest;
involves a compelling need to formulate controlling principles to guide the bench,
the bar, and the public on how public funds should be utilized; and is an issue
capable of repetition yet evading review.

Even on the assumption of mootness, jurisprudence, nevertheless, 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.

The applicability of the first exception is clear from the fundamental posture of
petitioners–they essentially allege grave violations of the Constitution with respect to, inter alia,
the principles of separation of powers, non-delegability of legislative power, checks and
balances, accountability and local autonomy.

The applicability of the second exception is also apparent from the nature of the
interests involved –the constitutionality of the very system within which significant amounts
of public funds have been and continue to be utilized and expended undoubtedly presents a
situation of exceptional character as well as a matter of paramount public interest. The
present petitions, in fact, have been lodged at a time when the system’s flaws have never before
been magnified. x x x

xxx

The Court also finds the third exception to be applicable largely due to the practical
need for a definitive ruling on the system’s constitutionality. As disclosed during the Oral
Arguments, the CoA Chairperson estimates that thousands of notices of disallowances will be
issued by her office in connection with the findings made in the CoA Report. x x x
Accordingly, there is a compelling need to formulate controlling principles relative to the issues
raised herein in order to guide the bench, the bar, and the public, not just for the
expeditious resolution of the anticipated disallowance cases, but more importantly, so
that the government may be guided on how public funds should be utilized in
accordance with constitutional principles.

Finally, the application of the fourth exception is called for by the recognition that the
preparation and passage of the national budget is, by constitutional imprimatur, an affair of
annual occurrence. The relevance of the issues before the Court does not cease with the passage
of a ―PDAF-free budget for 2014. (Belgica v. Honorable Executive Secretary Ochoa, G.R. No.
208566, November 19, 2013)

While the constitutionality of the concurrent holding of the two positions in

the Cabinet has become moot and academic, the Supreme Court may still resolve
the issue because all recognized exceptions obtain.

A moot and academic case is one that ceases to present a justiciable controversy by virtue
of supervening events, so that a declaration thereon would be of no practical use or value.
Although the controversy could have ceased due to the intervening appointment of and
assumption by Cadiz as the Solicitor General during the pendency of this suit, and such
cessation of the controversy seemingly rendered moot and academic the resolution of the issue
of the constitutionality of the concurrent holding of the two positions by Agra, the Court should
still go forward and resolve the issue and not abstain from exercising its power of judicial review
because this case comes under several of the well-recognized exceptions established in
jurisprudence. Verily, the Court did not desist from resolving an issue that a supervening event
meanwhile rendered moot and academic if any of the following recognized exceptions obtained,
namely: (1) there was a grave violation of the Constitution; (2) the case involved a situation of
exceptional character and was of paramount public interest; (3) the constitutional issue raised

27 | P a g e
required the formulation of controlling principles to guide the Bench, the Bar and the public;
and (4) the case was capable of repetition, yet evading review.

It is the same here. The constitutionality of the concurrent holding by Agra of the two
positions in the Cabinet, albeit in acting capacities, was an issue that comes under all the
recognized exceptions. (Funa v. Agra, G.R. No. 191644, February 19, 2013)

Even if the DAP program has already been terminated, the Court can still rule
on its constitutionality because all the exceptions to the moot and academic
principle are present.

A moot and academic case is one that ceases to present a justiciable controversy by virtue
of supervening events, so that a declaration thereon would be of no practical use or value.

The Court cannot agree that the termination of the DAP as a program was a supervening
event that effectively mooted these consolidated cases. Verily, the Court had in the past
exercised its power of judicial review despite the cases being rendered moot and academic by
supervening events, like: (1) when there was a grave violation of the Constitution; (2) when the
case involved a situation of exceptional character and was of paramount public interest; (3)
when the constitutional issue raised required the formulation of controlling principles to guide
the Bench, the Bar and the public; and (4) when the case was capable of repetition yet evading
review. Assuming that the petitioners’ several submissions against the DAP were ultimately
sustained by the Court here, these cases would definitely come under all the exceptions. Hence,
the Court should not abstain from exercising its power of judicial review. (Araullo v. Aquino,
G.R. No. 209287, July 1, 2014)

THE STANDING REQUIREMENT

Locus standi or legal standing is defined as a personal and substantial

interest in a case such that the party has sustained or will sustain direct injury as a
result of the challenged governmental act. A party will be allowed to litigate only
when he can demonstrate that (1) he has personally suffered some actual or
threatened injury because of the allegedly illegal conduct of the government; (2)
the injury is fairly traceable to the challenged action; and (3) the injury is likely to
be redressed by the remedy being sought.

Locus standi or legal standing is defined as a personal and substantial interest in a case
such that the party has sustained or will sustain direct injury as a result of the challenged
governmental act. It requires a personal stake in the outcome of the controversy as to assure the
concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions. With that definition, therefore, a
party will be allowed to litigate only when he can demonstrate that (1) he has personally suffered
some actual or threatened injury because of the allegedly illegal conduct of the government; (2)
the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed
by the remedy being sought. (Umali v. Judicial and Bar Council, July 25, 2017, G.R. No.
228628)

Legal standing as a citizen: When suing as a citizen, the interest of the

petitioner assailing the constitutionality of a statute must be direct and personal. He
must be able to show, not only that the law or any government act is invalid, but
also that he sustained or is in imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some indefinite
way.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a
statute must be direct and personal. He must be able to show, not only that the law or any
government act is invalid, but also that he sustained or is in imminent danger of sustaining
some direct injury as a result of its enforcement, and not merely that he suffers thereby in some
indefinite way. It must appear that the person complaining has been or is about to be denied
some right or privilege to which he is lawfully entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute or act complained of. In fine, when the proceeding
involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement
of personal interest. (Umali v. Judicial and Bar Council, July 25, 2017, G.R. No. 228628)

28 | P a g e
 Legal standing as a tax payer: In the case of a taxpayer, he is 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 there is a wastage of public
funds through the enforcement of an invalid or unconstitutional law.

In the case of a taxpayer, he is 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
there is a wastage of public funds through the enforcement of an invalid or unconstitutional law.
Before he can invoke the power of judicial review, however, he must specifically prove that he
has sufficient interest in preventing the illegal expenditure of money raised by taxation and that
he would sustain a direct injury as a result of the enforcement of the questioned statute or
contract. It is not sufficient that he has merely a general interest common to all members of the
public. (Umali v. Judicial and Bar Council, July 25, 2017, G.R. No. 228628)

Legal standing as a legislator: Each member of Congress has a legal standing

to sue even without an enabling resolution for that purpose so long as the
questioned acts invade the powers, prerogatives and privileges of Congress.
Otherwise stated, whenever the acts affect the powers, prerogatives and privileges
of Congress, anyone of its members may validly bring an action to challenge the
same to safeguard and maintain the sanctity thereof.

As for a legislator, he is allowed to sue to question the validity of any official action which
he claims infringes his prerogatives as a legislator. Indeed, a member of the House of
Representatives has standing to maintain inviolate the prerogatives, powers and privileges
vested by the Constitution in his office.

The legal standing of each member of Congress was also upheld in Philippine
Constitution Association v. Enriquez, where this Court pronounced that:

xxx
We rule that a member of the Senate, and of the House of Representatives
for that matter, has the legal standing to question the validity of a presidential
veto or a condition imposed on an item in an appropriation bill.

Where the veto is claimed to have been made without or in excess of the
authority vested on the President by the Constitution, the issue of an
impermissible intrusion of the Executive into the domain of the Legislature arises
(citation omitted).

To the extent the powers of Congress are impaired, so is the power of each
member thereof, since his office confers a right to participate in the exercise of
the powers of that institution (citation omitted).

An act of the Executive which injures the institution of Congress causes a

derivative but nonetheless substantial injury, which can be questioned by a
member of Congress (citation omitted). In such a case, any member of Congress
can have a resort to the courts.

Former Chief Justice Enrique M. Fernando, as Amicus Curiae, noted:

This is, then, the clearest case of the Senate as a whole or individual
Senators as such having a substantial interest in the question at issue. It could
likewise be said that there was the requisite injury to their rights as Senators. It
would then be futile to raise any locus standi issue. xxx

It is clear therefrom that each member of Congress has a legal standing to sue even
without an enabling resolution for that purpose so long as the questioned acts invade the
powers, prerogatives and privileges of Congress. Otherwise stated, whenever the acts affect the
powers, prerogatives and privileges of Congress, anyone of its members may validly bring an
action to challenge the same to safeguard and maintain the sanctity thereof.

With the foregoing, this Court sustains the petitioner's legal standing as Member of the
House of Representatives and as the Chairman of its Committee on Justice to assail the
alternate representation of Congress in the JBC, which arrangement led to the non-counting of
his votes in its En Banc deliberations last December 2 and 9, 2016, as it allegedly affects

29 | P a g e
adversely Congress' prerogative to be fully represented before the said body. (Umali v. Judicial
and Bar Council, July 25, 2017, G.R. No. 228628)

Locus Standi: The party must show that (1) he will personally suffer some
actual or threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged action; and (3) the
injury is likely to be redressed by a favorable action. If the asserted injury is more
imagined than real, or is merely superficial and insubstantial, an excursion into
constitutional adjudication by the courts is not warranted.

The personal and substantial interest that enables a party to have legal standing is one
that is both material, an interest in issue and to be affected by the government action, as
distinguished from mere interest in the issue involved, or a mere incidental interest, and real,
which means a present substantial interest, as distinguished from a mere expectancy or a future,
contingent, subordinate, or consequential interest.

As to injury, the party must show that (1) he will personally suffer some actual or
threatened injury because of the allegedly illegal conduct of the government; (2) the injury is
fairly traceable to the challenged action; and (3) the injury is likely to be redressed by a favorable
action. If the asserted injury is more imagined than real, or is merely superficial and
insubstantial, an excursion into constitutional adjudication by the courts is not warranted. (Roy
v. Herbosa, G.R. No. 207246, November 22, 2016)

Locus standi requisite is not met by the expedient invocation of one's

citizenship or membership in the bar who has an interest in ensuring that laws and
orders of the Philippine government are legally and validly issued as these supposed
interests are too general. Also, a taxpayer's suit is allowed only when the petitioner
has demonstrated the direct correlation of the act complained of and the
disbursement of public funds in contravention of law or the Constitution, or has
shown that the case involves the exercise of the spending or taxing power of
Congress.

The Court has previously emphasized that the locus standi requisite is not met by the
expedient invocation of one's citizenship or membership in the bar who has an interest in
ensuring that laws and orders of the Philippine government are legally and validly issued as
these supposed interests are too general, which are shared by other groups and by the whole
citizenry. Per their allegations, the personal interest invoked by petitioners as citizens and
members of the bar in the validity or invalidity of SEC-MC No. 8 is at best equivocal, and totally
insufficient.

Petitioners' status as taxpayers is also of no moment. As often reiterated by the Court, a

taxpayer's suit is allowed only when the petitioner has demonstrated the direct correlation of the
act complained of and the disbursement of public funds in contravention of law or the
Constitution, or has shown that the case involves the exercise of the spending or taxing power of
Congress. SEC-MC No. 8 does not involve an additional expenditure of public funds and the
taxing or spending power of Congress.

xxx

Petitioners' cursory incantation of "transcendental importance x x x of the rules on

foreign ownership of corporations or entities vested with public interest" does not automatically
justify the brushing aside of the strict observance of the requisites for the Court's exercise of
judicial review. An indiscriminate disregard of the requisites every time "transcendental or
paramount importance or significance" is invoked would result in an unacceptable corruption of
the settled doctrine of locus standi, as every worthy cause is an interest shared by the general
public.

In the present case, the general and equivocal allegations of petitioners on their legal
standing do not justify the relaxation of the locus standi rule. While the Court has taken an
increasingly liberal approach to the rule of locus standi, evolving from the stringent
requirements of personal injury to the broader transcendental importance doctrine, such
liberality is not to be abused. (Roy v. Herbosa, G.R. No. 207246, November 22, 2016)

30 | P a g e
 Locus standi: If the petition is anchored on a public right, such as the people’s
right to information on matters of public concern, any citizen can be the real party in
interest.

If the petition is anchored on the people’s right to information on matters of public

concern, any citizen can be the real party in interest. The requirement of personal interest is
satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general public
which possesses the right. There is no need to show any special interest in the result. It is
sufficient that petitioners are citizens and, as such, are interested in the faithful execution of the
laws. (Initiatives for Dialogue and Empowerment [IDEAL] v. Power Sector Liabilities and
Management Corporation [PSALM], G.R. No. 192088, October 9, 2012)

A facial challenge on grounds of overbreadth or vagueness is an exception to

the prohibition on third-party standing. A petitioner may mount a “facial” challenge
to the constitutionality of a statute even if he claims no violation of his own rights
under the assailed statute where it involves free speech on grounds of overbreadth
or vagueness of the statute. This is to counter the “chilling effect” on protected
speech.

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. x x x “[W]e 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.

But this rule admits of exceptions. A petitioner may for instance mount a “facial” challenge
to the constitutionality of a statute even if he claims no violation of his own rights under the
assailed statute where it involves free speech on grounds of overbreadth or vagueness of the
statute. The rationale for this exception is to counter the “chilling effect” on protected speech
that comes from statutes violating free speech. A person who does not know whether his speech
constitutes a crime under an overbroad or vague law may simply restrain himself from speaking
in order to avoid being charged of a crime. The overbroad or vague law thus chills him into
silence. (Disini v. Secretary of Justice, G.R. No. 203335, February 18, 2014)

Locus standi in environmental cases: The Rules of Procedure for Environmental

Cases allow for a "citizen suit," and permit any Filipino citizen, as a steward of
nature, to file an action before our courts for violations of our environmental laws;
this collapses the traditional rule on personal and direct interest, on the principle
that humans are stewards of nature.

[I]n our jurisdiction, locus standi in environmental cases has been given a more liberalized
approach. x x x

Recently, the Court passed the landmark Rules of Procedure for Environmental Cases,
which allow for a "citizen suit," and permit any Filipino citizen to file an action before our courts
for violations of our environmental laws:

SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or
generations yet unborn, may file an action to enforce rights or obligations under environmental
laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief
description of the cause of action and the reliefs prayed for, requiring all interested parties to
manifest their interest to intervene in the case within fifteen (15) days from notice thereof. The
plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or
furnish all affected barangays copies of said order.

xxx

31 | P a g e
 Explaining the rationale for this rule, the Court, in the Annotations to the Rules of
Procedure for Environmental Cases, commented:

Citizen suit. To further encourage the protection of the environment, the Rules
enable litigants enforcing environmental rights to file their cases as citizen suits. This
provision liberalizes standing for all cases filed enforcing environmental laws and collapses
the traditional rule on personal and direct interest, on the principle that humans are
stewards of nature. The terminology of the text reflects the doctrine first enunciated in
Oposa v. Factoran, insofar as it refers to minors and generations yet unborn.
(Underscoring supplied, citation omitted.)

xxx

Moreover, even before the Rules of Procedure for Environmental Cases became effective,
this Court had already taken a permissive position on the issue of locus standi in environmental
cases. In Oposa, we allowed the suit to be brought in the name of generations yet unborn "based
on the concept of intergenerational responsibility insofar as the right to a balanced and healthful
ecology is concerned." x x x

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 a
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, Ramos and Eisma-Osorio, 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. (Resident Marine Mammals of the
Protected Seascape of Tañon Strait v. Secretary Reyes, G.R. No. 180771, April 21, 2015)

Locus standi in environmental cases: There is a difference between a petition

for the issuance of a writ of kalikasan, wherein it is sufficient that the person filing
represents the inhabitants prejudiced by the environmental damage subject of the
writ; and a petition for the issuance of a writ of continuing mandamus, which is only
available to one who is personally aggrieved by the unlawful act or omission.

Citing Section 1, Rule 7 of the Rules of Procedure for Environmental Cases (RPEC),
respondents argue that the petitioners failed to show that they have the requisite standing to file
the petition, being representatives of a rather amorphous sector of society and without a
concrete interest or injury. Petitioners counter that they filed the suit as citizens, taxpayers, and
representatives; that the rules on standing had been relaxed following the decision in Oposa v.
Factoran; and that, in any event, legal standing is a procedural technicality which the Court may
set aside in its discretion.

The Court agrees with the petitioners' position. The RPEC did liberalize the requirements
on standing, allowing the filing of citizen's suit for the enforcement of rights and obligations
under environmental laws. This has been confirmed by this Court's rulings in Arigo v.
Swift, and International Service for the Acquisition of Agri-BioTech Applications, Inc. v.
Greenpeace Southeast Asia (Philippines). However, it bears noting that there is a difference
between a petition for the issuance of a writ of kalikasan, wherein it is sufficient that the person
filing represents the inhabitants prejudiced by the environmental damage subject of the
writ; and a petition for the issuance of a writ of continuing mandamus, which is only available to
one who is personally aggrieved by the unlawful act or omission. (Segovia v. Climate Change
Commission, G.R. No. 211010, March 7, 2017)

POLITICAL QUESTIONS

A question is political, and not judicial, if it is a matter which is to be

exercised by the people in their primary political capacity, or that it has been
specifically delegated to some other department or particular officer of the
government, with discretionary power to act. The size limitation on election
campaign banner and its reasonableness are not political questions because the
existence of constitutionally imposed limits on regulations on free speech justifies
subjecting the official actions of the Comelec to review of the Court.

32 | P a g e
 Respondents argue further that the size limitation [on election campaign propaganda]
and its reasonableness is a political question, hence not within the ambit of this court’s power of
review. x x x

This case concerns the right of petitioners, who are non-candidates, to post the tarpaulin
in their private property, as an exercise of their right of free expression. Despite the invocation
of the political question doctrine by respondents, this court is not proscribed from deciding on
the merits of this case.

In Tañada v. Cuenco, this court previously elaborated on the concept of what constitutes
a political question:

What is generally meant, when it is said that a question is political, and not judicial,
is that it is a matter which is to be exercised by the people in their primary political
capacity, or that it has been specifically delegated to some other department or particular
officer of the government, with discretionary power to act. (Emphasis omitted)

xxx

The case before this court does not call for the exercise of prudence or modesty. There is
no political question. It can be acted upon by this court through the expanded jurisdiction
granted to this court through Article VIII, Section 1 of the Constitution. (The Diocese of Bacolod
v. Commission on Elections, G.R. No. 205728, January 21, 2015)

When political questions are involved, the Constitution limits the

determination to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official whose action is
being questioned.

A political question arises in constitutional issues relating to the powers or competence

of different agencies and departments of the executive or those of the legislature. The political
question doctrine is used as a defense when the petition asks this court to nullify certain acts
that are exclusively within the domain of their respective competencies, as provided by the
Constitution or the law. In such situation, presumptively, this court should act with deference.
It will decline to void an act unless the exercise of that power was so capricious and arbitrary so
as to amount to grave abuse of discretion.

The concept of a political question, however, never precludes judicial review when the
act of a constitutional organ infringes upon a fundamental individual or collective right. Even
assuming arguendo that the COMELEC did have the discretion to choose the manner of
regulation of the tarpaulin in question, it cannot do so by abridging the fundamental right to
expression.

Marcos v. Manglapus limited the use of the political question doctrine:

When political questions are involved, the Constitution limits the determination to
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being questioned. If grave abuse is not
established, the Court will not substitute its judgment for that of the official concerned and
decide a matter which by its nature or by law is for the latter alone to decide.

xxx

As stated in Francisco, a political question will not be considered justiciable if there are
no constitutionally imposed limits on powers or functions conferred upon political bodies.
Hence, the existence of constitutionally imposed limits justifies subjecting the official actions of
the body to the scrutiny and review of this court. (The Diocese of Bacolod v. Commission on
Elections, G.R. No. 205728, January 21, 2015)

Political questions: The Court may not pass upon questions of wisdom, justice
or expediency of a law. It may do so where an attendant unconstitutionality or
grave abuse of discretion results.

[W]hile the Court may not pass upon questions of wisdom, justice or expediency of the
RH Law, it may do so where an attendant unconstitutionality or grave abuse of discretion
results. x x x

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 x x x The Court may pass upon the constitutionality of acts of the legislative and the
executive branches, since its duty is not to review their collective wisdom but, rather, to make
sure that they have acted in consonance with their respective authorities and rights as mandated
of them by the Constitution. x x x.

xxx

x x x Where an action of the legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the
dispute. “The question thus posed is judicial rather than political. The duty (to adjudicate)
remains to assure that the supremacy of the Constitution is upheld." Once a "controversy as to
the application or interpretation of constitutional provision is raised before this Court (as in the
instant case), it becomes a legal issue which the Court is bound by constitutional mandate to
decide. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

Foreign relations matters as political questions: The conduct of the foreign

relations is committed by the Constitution to the executive and legislative
departments. The Executive Department has the exclusive prerogative to determine
whether to espouse Filipino citizens’ claims against Japan.

Petitioners argue that the general waiver of claims made by the Philippine government in
the Treaty of Peace with Japan is void. They claim that the comfort women system established
by Japan, and the brutal rape and enslavement of petitioners constituted a crime against
humanity, sexual slavery, and torture. They allege that the prohibition against these
international crimes is jus cogens norms from which no derogation is possible; as such, in
waiving the claims of Filipina comfort women and failing to espouse their complaints against
Japan, the Philippine government is in breach of its legal obligation not to afford impunity for
crimes against humanity. x x x

xxx

Stripped down to its essentials, the issue in this case is whether the Executive
Department committed grave abuse of discretion in not espousing petitioners’ claims for official
apology and other forms of reparations against Japan.

The petition lacks merit.

From a Domestic Law Perspective, the Executive Department has the exclusive
prerogative to determine whether to espouse petitioners’ claims against Japan.

xxx

Certain types of cases often have been found to present political questions. One such
category involves questions of foreign relations.

The conduct of the foreign relations of our government is committed by the Constitution
to the executive and legislative--'the political'--departments of the government, and the
propriety of what may be done in the exercise of this political power is not subject to judicial
inquiry or decision

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. (Vinuya v.
Executive Secretary, G.R. No. 162230, 28 April 2010)

Sufficiency of form and substance of an impeachment complaint as a political

question: The determination of whether a narration of facts in an impeachment
complaint constitutes an impeachable offense is purely a political question.

34 | P a g e
 Petitioner further claims that public respondent [House Committee on Justice] failed to
ascertain the sufficiency of form and substance of the complaints on the basis of the standards
set by the Constitution and its own Impeachment Rules.

The claim fails.

The determination of sufficiency of form and substance of an impeachment complaint is

an exponent of the express constitutional grant of rule-making powers of the House of
Representatives which committed such determinative function to public respondent. In the
discharge of that power and in the exercise of its discretion, the House has formulated
determinable standards as to the form and substance of an impeachment complaint. Prudential
considerations behoove the Court to respect the compliance by the House of its duty to
effectively carry out the constitutional purpose, absent any contravention of the minimum
constitutional guidelines.

xxx

Petitioner urges the Court to look into the narration of facts constitutive of the offenses
vis-à-vis her submissions disclaiming the allegations in the complaints.

This the Court cannot do.

Francisco instructs that this issue would "require the Court to make a determination of
what constitutes an impeachable offense. Such a determination is a purely political question
which the Constitution has left to the sound discretion of the legislature. Such an intent is clear
from the deliberations of the Constitutional Commission. xxxx Clearly, the issue calls upon this
court to decide a non-justiciable political question which is beyond the scope of its judicial
power." (Gutierrez v. House of Representatives, G.R. No. 193459, February 15, 2011)

The Supreme Court cannot review the sufficiency of the substance of

impeachment complaints. Impeachment is a political process. the decision to
impeach lies exclusively on Congress.

[T]he Court cannot review the sufficiency of the substance of the impeachment
complaints. The sufficiency of the substance will delve into the merits of the impeachment
complaints over which this Court has no jurisdiction. The Court can only rule on whether there
is a gross violation of the Constitution in filing the impeachment complaint, in particular,
whether the complaint was filed in violation of the one-year ban. The Court cannot review the
decision of the Committee on Justice to impeach. The Court ruled in Francisco:

The first issue goes into the merits of the second impeachment complaint over which this
Court has no jurisdiction. More importantly, any discussion of this issue would require this
Court to make a determination of what constitutes an impeachable offense. Such a
determination is a purely political question which the Constitution has left to the sound
discretion of the legislation. Such an intent is clear from the deliberations of the Constitutional
Commission.

Impeachment is a political process. Thus, the decision to impeach lies exclusively on

Congress. The most important thing in an impeachment proceeding is the vote by the House
Plenary. Section 10 of the Rules of Procedure states that "[a] vote of at least one-third (⅓) of all
Members of the House is necessary for the approval of the resolution setting forth the Articles of
Impeachment. If the resolution is approved by the required vote, it shall then be endorsed to the
Senate for its trial." The Rule is based on Section 3 (4), Article XI of the 1987 Constitution xxx.

The Constitution is clear. After the vote of one-third of all the Members of the House is
achieved, the Articles of Impeachment will automatically be forwarded to the Senate for trial.
The Constitution only requires the vote of one-third of all the Members of the House for the
Articles of Impeachment to be forwarded to the Senate whether or not the complaint is
sufficient in form and substance. (Concurring Opinion, Carpio, Gutierrez v. House of
Representatives, G.R. No. 193459, February 15, 2011)

The validity of the Pork Barrel System is not a political question because it is
not an issue dependent upon the wisdom of the political branches of government
but rather a legal one which the Constitution itself has commanded the Court to act
upon.

35 | P a g e
 The intrinsic constitutionality of the "Pork Barrel System" is not an issue dependent
upon the wisdom of the political branches of government but rather a legal one which the
Constitution itself has commanded the Court to act upon. Scrutinizing the contours of the
system along constitutional lines is a task that the political branches of government are
incapable of rendering precisely because it is an exercise of judicial power. (Belgica v. Executive
Secretary Ochoa, G.R. No. 208566, November 19, 2013)

DOCTRINE OF OPERATIVE FACT

Under the doctrine of operative fact, in the interest of fair play, the actions
previous to the declaration of unconstitutionality are legally recognized. This is
because the existence of a law or executive act prior to its invalidation is an
operative fact. It provides an exception to the general rule that a void or
unconstitutional law produces no effect.

Under the doctrine of operative fact, in the interest of fair play, the actions previous to
the declaration of unconstitutionality are legally recognized. It nullifies the effects of an
unconstitutional law by recognizing that the existence of a statute prior to a determination of
unconstitutionality is an operative fact and may have consequences which cannot always be
ignored. Thus, acts of the Judicial and Bar Council, before its composition was declared
unconstitutional, are valid. (Chavez v. Judicial and Bar Council, G.R. No. 202242, July 17,
2012)

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. 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. It is resorted to only as a matter of equity and fair play. The Court can apply the
operative fact doctrine to acts and consequences that resulted from the reliance not only on a
law or executive act which is quasi-legislative in nature but also on decisions or orders of the
executive branch which were later nullified.

The adoption and the implementation of the DAP and its related issuances were
executive acts. In that context, the doctrine of operative fact can apply only to the PAPs that can
no longer be undone, and whose beneficiaries relied in good faith on the validity of the DAP, but
cannot apply to the authors, proponents and implementors of the DAP, unless there are
concrete findings of good faith in their favor by the proper tribunals determining their criminal,
civil, administrative and other liabilities. (Araullo v. Aquino, G.R. No. 209287, July 1, 2014)

As a general rule, the nullification of an unconstitutional law or act carries

with it the illegality of its effects. However, in cases where nullification of the
effects will result in inequity and injustice, the operative fact doctrine may apply.
Bearing in mind the disastrous impact of nullifying P 144.378 Billion worth of
projects by virtue alone of the invalidation of certain acts under the DAP, the Court
has upheld the efficacy of such DAP-funded projects by applying the operative fact
doctrine.

The petitioners in G.R. No. 209442 pray for the partial reconsideration of the decision
on the ground that the Court thereby:
FAILED TO DECLARE AS UNCONSTITUTIONAL AND ILLEGAL ALL MONEYS UNDER
THE DISBURSEMENT ACCELERATION PROGRAM (DAP) USED FOR ALLEGED
AUGMENTATION OF APPROPRIATION ITEMS THAT DID NOT HAVE ACTUAL DEFICIENCIES

They submit that augmentation of items beyond the maximum amounts recommended
by the President for the programs, activities and projects (PAPs) contained in the budget
submitted to Congress should be declared unconstitutional.

xxx

As a general rule, the nullification of an unconstitutional law or act carries with it the
illegality of its effects. However, in cases where nullification of the effects will result in inequity
and injustice, the operative fact doctrine may apply. In so ruling, the Court has essentially
recognized the impact on the beneficiaries and the country as a whole if its ruling would pave
the way for the nullification of the P144.378 Billion worth of infrastructure projects, social and
economic services funded through the DAP. Bearing in mind the disastrous impact of nullifying
36 | P a g e
these projects by virtue alone of the invalidation of certain acts and practices under the DAP, the
Court has upheld the efficacy of such DAP-funded projects by applying the operative fact
doctrine. (Araullo v. Aquino, G.R. No. 209287, February 3, 2015)

THE LEGISLATIVE BRANCH

Why PDAF/Pork Barrel System is void

The PDAF/”Pork Barrel System” violates the principle of separation of

powers, as it authorizes legislators to participate in the post-enactment phases of
project implementation, such as project identification, fund release and fund
realignment, thus allowing legislators to intervene and/or assume duties that
properly belong to the sphere of budget execution.

Broadly speaking, there is a violation of the separation of powers principle when one
branch of government unduly encroaches on the domain of another. x x x [T]here is a violation
of the principle when there is impermissible (a) interference with and/or (b) assumption of
another department‘s functions.

The enforcement of the national budget, as primarily contained in the GAA, is

indisputably a function both constitutionally assigned and properly entrusted to the Executive
branch of government. x x x Thus, unless the Constitution provides otherwise, the Executive
department should exclusively exercise all roles and prerogatives which go into the
implementation of the national budget as provided under the GAA as well as any other
appropriation law.

[T]he Legislative branch of government, much more any of its members, should not
cross over the field of implementing the national budget since, as earlier stated, the same is
properly the domain of the Executive. x x x Upon approval and passage of the GAA, Congress‘
law-making role necessarily comes to an end and from there the Executive‘s role of
implementing the national budget begins.

xxx

[T]he defining feature of all forms of Congressional Pork Barrel would be the authority of
legislators to participate in the post-enactment phases of project implementation.

At its core, legislators – may it be through project lists, prior consultations or program
menus – have been consistently accorded post-enactment authority to identify the projects they
desire to be funded through various Congressional Pork Barrel allocations. x x x

Aside from the area of project identification, legislators have also been accorded post-
enactment authority in the areas of fund release and realignment. x x x

Clearly, these post-enactment measures which govern the areas of project identification,
fund release and fund realignment are not related to functions of congressional oversight and,
hence, allow legislators to intervene and/or assume duties that properly belong to the sphere of
budget execution. x x x The fundamental rule [is] – from the moment the law becomes effective,
any provision of law that empowers Congress or any of its members to play any role in the
implementation or enforcement of the law violates the principle of separation of powers and is
thus unconstitutional. (Belgica v. Executive Secretary, G.R. No. 208566, November 19, 2013)

The PDAF/”Pork Barrel System” violates the principle of non-delegation of

legislative power considering that an individual legislator is given the authority to
dictate (a) how much fund would go to (b) a specific project or beneficiary that he
himself also determines, two (2) acts that comprise the exercise of the power of
appropriation, which is lodged in Congress.

[O]nly Congress, acting as a bicameral body, and the people, through the process of
initiative and referendum, may constitutionally wield legislative power and no other. This
premise embodies the principle of non-delegability of legislative power, and the only recognized
exceptions thereto would be: (a) delegated legislative power to local governments which, by
immemorial practice, are allowed to legislate on purely local matters; and (b) constitutionally-
grafted exceptions such as the authority of the President to, by law, exercise powers necessary
and proper to carry out a declared national policy in times of war or other national emergency,
or fix within specified limits, and subject to such limitations and restrictions as Congress may
37 | P a g e
impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the national development program of the Government.

xxx

[T]he 2013 PDAF Article, insofar as it confers post-enactment identification authority to

individual legislators, violates the principle of non-delegability since said legislators are
effectively allowed to individually exercise the power of appropriation, which – as settled in
Philconsa – is lodged in Congress. That the power to appropriate must be exercised only
through legislation is clear from Section 29(1), Article VI of the 1987 Constitution which states
that: "No money shall be paid out of the Treasury except in pursuance of an appropriation made
by law." x x x [T]he Court, in Bengzon v. Secretary of Justice and Insular Auditor (Bengzon),
held that the power of appropriation involves (a) the setting apart by law of a certain sum from
the public revenue for (b) a specified purpose. Essentially, under the 2013 PDAF Article,
individual legislators are given a personal lump-sum fund from which they are able to dictate (a)
how much from such fund would go to (b) a specific project or beneficiary that they themselves
also determine. As these two (2) acts comprise the exercise of the power of appropriation as
described in Bengzon, and given that the 2013 PDAF Article authorizes individual legislators to
perform the same, undoubtedly, said legislators have been conferred the power to legislate
which the Constitution does not, however, allow. (Belgica v. Executive Secretary, G.R. No.
208566, November 19, 2013)

The PDAF/”Pork Barrel System” undermines the system of checks and

balance by impairing the President’s item veto power. For the President to exercise
his item-veto power, there must be a proper "item" which may be the object of the
veto. Because PDAF is a lump-sum appropriation, the actual items of PDAF
appropriation would not have been written into the General Appropriations Bill and
thus effectuated without veto consideration. The legislator’s identification of the
projects after the passage of the GAA denies the President the chance to veto that
item later on.

A prime example of a constitutional check and balance would be the President’s power to
veto an item written into an appropriation, revenue or tariff bill submitted to him by Congress
for approval through a process known as "bill presentment." The President‘s item-veto power is
found in Section 27(2), Article VI of the 1987 Constitution which reads as follows:
Sec. 27. x x x.

xxxx

(2) The President shall have the power to veto any particular item or items in an
appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not
object.

xxx

For the President to exercise his item-veto power, it necessarily follows that there exists
a proper "item" which may be the object of the veto. An item, as defined in the field of
appropriations, pertains to "the particulars, the details, the distinct and severable parts of the
appropriation or of the bill." In the case of Bengzon v. Secretary of Justice of the Philippine
Islands, the US Supreme Court characterized an item of appropriation as follows:
An item of an appropriation bill obviously means an item which, in itself, is a
specific appropriation of money, not some general provision of law which happens to be put
into an appropriation bill.

On this premise, it may be concluded that an appropriation bill, to ensure that the
President may be able to exercise his power of item veto, must contain "specific appropriations
of money" and not only "general provisions" which provide for parameters of appropriation.

Further, it is significant to point out that an item of appropriation must be an item

characterized by singular correspondence – meaning an allocation of a specified singular
amount for a specified singular purpose, otherwise known as a "line-item.

xxx

In these cases, petitioners claim that "in the current x x x system where the PDAF is a
lump-sum appropriation, the legislator‘s identification of the projects after the passage of the
GAA denies the President the chance to veto that item later on." x x x

38 | P a g e
 xxx

The Court agrees with petitioners.

Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a collective
allocation limit since the said amount would be further divided among individual legislators
who would then receive personal lump-sum allocations and could, after the GAA is passed,
effectively appropriate PDAF funds based on their own discretion. As these intermediate
appropriations are made by legislators only after the GAA is passed and hence, outside of the
law, it necessarily means that the actual items of PDAF appropriation would not have been
written into the General Appropriations Bill and thus effectuated without veto consideration.
This kind of lump-sum/post-enactment legislative identification budgeting system x x x impairs
the President‘s power of item veto. As petitioners aptly point out, the above-described system
forces the President to decide between (a) accepting the entire P24.79 Billion PDAF allocation
without knowing the specific projects of the legislators, which may or may not be consistent with
his national agenda and (b) rejecting the whole PDAF to the detriment of all other legislators
with legitimate projects. (Belgica v. Executive Secretary Ochoa, G.R. No. 208566, November
19, 2013)

The PDAF/”Pork Barrel System” undermines public accountability by

impairing Congress’ oversight functions considering that legislators would, in effect,
be checking on activities in which they themselves participate. It also violates the
constitutional prohibition on legislators’ intervention on matters where he may be
called upon to act.

Petitioners further relate that the system under which various forms of Congressional
Pork Barrel operate defies public accountability as it renders Congress incapable of checking
itself or its Members. In particular, they point out that the Congressional Pork Barrel "gives each
legislator a direct, financial interest in the smooth, speedy passing of the yearly budget" which
turns them "from fiscalizers" into "financially-interested partners." x x x

xxx

The Court agrees with petitioners that certain features embedded in some forms of
Congressional Pork Barrel, among others the 2013 PDAF Article, has an effect on congressional
oversight. The fact that individual legislators are given post-enactment roles in the
implementation of the budget makes it difficult for them to become disinterested "observers"
when scrutinizing, investigating or monitoring the implementation of the appropriation law. To
a certain extent, the conduct of oversight would be tainted as said legislators, who are vested
with post-enactment authority, would, in effect, be checking on activities in which they
themselves participate. Also, it must be pointed out that this very same concept of post-
enactment authorization runs afoul of Section 14, Article VI of the 1987 Constitution which
provides that:
Sec. 14. No Senator or Member of the House of Representatives may personally
appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-
judicial and other administrative bodies. Neither shall he, directly or indirectly, be
interested financially in any contract with, or in any franchise or special privilege granted
by the Government, or any subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation, or its subsidiary, during his term of office.
He shall not intervene in any matter before any office of the Government for his pecuniary
benefit or where he may be called upon to act on account of his office. (Emphasis supplied)

Clearly, allowing legislators to intervene in the various phases of project implementation

– a matter before another office of government – renders them susceptible to taking undue
advantage of their own office. (Belgica v. Executive Secretary Ochoa, G.R. No. 208566,
November 19, 2013)

The PDAF/”Pork Barrel System” violates the constitutional principles on local

autonomy as it allows district representatives who are national officers to substitute
the judgement of local officials on use of public funds for local development. A
Congressman can simply bypass the local development council and initiate projects
on his own.

[P]etitioners contend that the Congressional Pork Barrel goes against the constitutional
principles on local autonomy since it allows district representatives, who are national officers, to

39 | P a g e
substitute their judgments in utilizing public funds for local development. The Court agrees with
petitioners.

xxx

With PDAF, a Congressman can simply bypass the local development council and initiate
projects on his own, and even take sole credit for its execution. Indeed, this type of personality-
driven project identification has not only contributed little to the overall development of the
district, but has even contributed to "further weakening infrastructure planning and
coordination efforts of the government."

Thus, insofar as individual legislators are authorized to intervene in purely local matters
and thereby subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar
forms of Congressional Pork Barrel is deemed unconstitutional.

Thus, insofar as individual legislators are authorized to intervene in purely local matters
and thereby subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar
forms of Congressional Pork Barrel is deemed unconstitutional. (Belgica v. Executive Secretary
Ochoa, G.R. No. 208566, November 19, 2013)

IMPEACHMENT PROCESS IN CONGRESS

Impeachment process in Congress: The one-year bar starts from “initiation”

of impeachment complaint, which takes place by the act of filing and referral or
endorsement of the impeachment complaint to the House Committee on Justice or,
by the filing by at least one-third of the members of the House of Representatives
with the Secretary General of the House.

Article XI, Section 3, paragraph (5) of the Constitution reads: "No

impeachment proceedings shall be initiated against the same official more than once within a
period of one year."

Petitioner reckons the start of the one-year bar from the filing of the first impeachment
complaint against her on July 22, 2010 or four days before the opening on July 26, 2010 of the
15th Congress. She posits that within one year from July 22, 2010, no second impeachment
complaint may be accepted and referred to public respondent.

xxx

Contrary to petitioner’s asseveration, Francisco states that the term "initiate" means to
file the complaint and take initial action on it. The initiation starts with the filing of the
complaint which must be accompanied with an action to set the complaint moving. It refers to
the filing of the impeachment complaint coupled with Congress’ taking initial action of said
complaint. The initial action taken by the House on the complaint is the referral of the
complaint to the Committee on Justice.

xxx

From the records of the Constitutional Commission, to the amicus curiae briefs of two
former Constitutional Commissioners, it is without a doubt that the term "to initiate" refers
to the filing of the impeachment complaint coupled with Congress' taking initial action of said
complaint.

Having concluded that the initiation takes place by the act of filing and referral or
endorsement of the impeachment complaint to the House Committee on Justice or, by the filing
by at least one-third of the members of the House of Representatives with the Secretary General
of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment
complaint has been initiated, another impeachment complaint may not be filed against the same
official within a one-year period. (Gutierrez v. House of Representatives, G.R. No. 193459,
February 15, 2011)

MARTIAL LAW AND THE ROLE OF CONGRESS

Under Article VII, Section 18 of the 1987 Constitution, in the event that the
President proclaims a state of martial law and/or suspends the privilege of the writ

40 | P a g e
of habeas corpus in the Philippines or any part thereof, Congress is not
constitutionally mandated to convene in joint session, except to vote jointly to
revoke the President's declaration or suspension. The provision in Article VII,
Section 18 of the 1987 Constitution requiring the Congress to vote jointly in a joint
session is specifically for the purpose of revocation of the President's proclamation
of martial law and/or suspension of the privilege of the writ of habeas corpus.

These consolidated petitions under consideration essentially assail the failure and/or
refusal of respondent Congress of the Philippines (the Congress), composed of the Senate and
the House of Representatives, to convene in joint session and therein deliberate on
Proclamation No. 216 issued on May 23, 201 7 by President Rodrigo Roa Duterte (President
Duterte). Through Proclamation No. 216, President Duterte declared a state of martial law and
suspended the privilege of the writ of habeas corpus in the whole of Mindanao for a period not
exceeding sixty (60) days effective from the date of the proclamation's issuance.

xxxx

We now come to the crux of the present petitions - the issue of whether or not under
Article VII, Section 18 of the 1987 Constitution, it is mandatory for the Congress to
automatically convene in joint session in the event that the President proclaims a state of
martial law and/or suspends the privilege of the writ of habeas corpus in the Philippines or any
part thereof.

The Court answers in the negative. The Congress is not constitutionally mandated to
convene in joint session except to vote jointly to revoke the President's declaration or
suspension.

By the language of Article VII, Section 18of the 1987 Constitution, the Congress is only required
to vote jointly to revoke the President's proclamation of martial law
and/or suspension of the privilege of the writ of habeas corpus.

xxxx

Outside explicit constitutional limitations, the Commander-in-Chief clause in Article VII,

Section 18 of the 1987 Constitution vests on the President, as Commander-in-Chief, absolute
authority over the persons and actions of the members of the armed forces, in recognition that
the President, as Chief Executive, has the general responsibility to promote public peace, and as
Commander-in-Chief, the more specific duty to prevent and suppress rebellion and lawless
violence. However, to safeguard against possible abuse by the President of the exercise of his
power to proclaim martial law and/or suspend the privilege of the writ of habeas corpus, the
1987 Constitution, through the same provision, institutionalized checks and balances on the
President's power through the two other co-equal and independent branches of
government, i.e., the Congress and the Judiciary. In particular, Article VII, Section 18 of the
1987 Constitution requires the President to submit a report to the Congress after his
proclamation of martial law and/or suspension of the privilege of the writ of habeas corpus and
grants the Congress the power to revoke, as well as extend, the proclamation and/or suspension;
and vests upon the Judiciary the power to review the sufficiency of the factual basis for such
proclamation and/or suspension.

There are four provisions in Article VII, Section 18 of the 1987 Constitution specifically
pertaining to the role of the Congress when the President proclaims martial law and/or
suspends the privilege of the writ of habeas corpus, viz.:

a. Within forty-eight (48) hours from the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus, the President shall submit a report in person or in
writing to the Congress;

b. The Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which revocation shall
not be set aside by the President;

c. Upon the initiative of the_ President, the Congress may, in the same manner. extend
such proclamation or suspension for a period to be determined by the Congress, if the invasion
or rebellion shall persist; and

d. The Congress, if not in session, shall within twenty-four hours (24) following such
proclamation or suspension, convene in accordance with its rules without need of call.

xxx

41 | P a g e
 xxxx The petitions at bar involve the initial proclamation of martial law and suspension
of the privilege of the writ of habeas corpus, and not their extension; and the 17th Congress was
still in session when President Duterte issued Proclamation No. 216 on May 23, 2017.

It is the second provision that is under judicial scrutiny herein: "The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation shall not be set aside by the
President."

xxxxx

xxx [T]he plain language of the subject constitutional provision does not support the
petitioners' argument that it is obligatory for the Congress to convene in joint session following
the President's proclamation of martial law and/or suspension of the privilege of the writ
of habeas corpus, under all circumstances.

The deliberations of the 1986 ConCom reveal the framers' specific intentions to (a)
remove the requirement of prior concurrence of the Congress for the effectivity of the
President's proclamation of martial law and/or suspension of the privilege of the writ of habeas
corpus; and (b) grant to the Congress the discretionary power to revoke the President's
proclamation and/or suspension by a vote of at least a majority of its Members, voting jointly.

xxxx

Based on the ConCom deliberations, xxxx the underlying reason for the requirement that
the two Houses of the Congress will vote jointly is to avoid the possibility of a deadlock and to
facilitate the process of revocation of the President's proclamation of martial law and/or
suspension of the privilege of the writ of habeas corpus:

xxxx

There was no obligation on the part of the Congress herein to convene in joint session as
the provision on revocation under Article VII, Section 18 of the 1987 Constitution did not even
come into operation in light of the resolutions, separately adopted by the two Houses of the
Congress in accordance with their respective rules of procedure, expressing support for
President Duterte's Proclamation No. 216.

The provision in Article VII, Section 18 of the 1987 Constitution requiring the Congress
to vote jointly in a joint session is specifically for the purpose of revocation of the President's
proclamation of martial law and/or suspension of the privilege of the writ of habeas corpus. In
the petitions at bar, the Senate and House of Representatives already separately adopted
resolutions expressing support for President Duterte's Proclamation No. 216. Given the express
support of both Houses of the Congress for Proclamation No. 216, and their already evident lack
of intent to revoke the same, the provision in Article VII, Section 18 of the 1987 Constitution on
revocation did not even come into operation and, therefore, there is no obligation on the part of
the Congress to convene in joint session.

xxxx

xxx It will be a completely different scenario if either of the Senate or the House of
Representatives, or if both Houses of the Congress, resolve/s to revoke the
President's proclamation of martial law and/or suspension of the privilege of the
writ of habeas corpus, in which case, Article VII, Section 18 of the 1987 Constitution shall
apply and the Congress must convene in joint session to vote jointly on the revocation of the
proclamation and/or suspension. Given the foregoing parameters in applying Article VII,
Section 18 of the 1987 Constitution, Justice Leonen's concern, expressed in his Concurring and
Dissenting Opinion, that a deadlock may result in the future, is completely groundless. (Padilla
v. Congress of the Philippines, G.R. No. 231671, July 25, 2017)

The Congress did not violate the right of the public to information when it did
not convene in joint session. Each House has the discretion over the manner by
which Congressional proceedings are to be conducted. Verily, sessions are generally
open to the public, but each House may decide to hold an executive session due to
the confidential nature of the subject matter to be discussed and deliberated upon.

Petitioners contend that the Constitution requires a public deliberation process on the
proclamation of martial law: one that is conducted via a joint session and by a single body. They
insist that the Congress must be transparent, such that there is an "open and robust debate,"

42 | P a g e
where the evaluation of the proclamation's factual bases and subsequent implementation shall
be openly discussed and where each member's position on the issue is heard and made known to
the public.

The petitioners' insistence on the conduct of a "joint session" contemplates a mandatory

joint Congressional session where public viewing is allowed.

However, based on their internal rules, each House has the discretion over the manner
by which Congressional proceedings are to be conducted. Verily, sessions are generally open to
the public, but each House may decide to hold an executive session due to the confidential
nature of the subject matter to be discussed and deliberated upon.

xxxx

From afore-quoted rules, it is clear that matters affecting the security of the state are
considered confidential and must be discussed and deliberated upon in an executive session,
excluding the public therefrom.

That these matters are considered confidential is in accordance with settled

jurisprudence that, in the exercise of their right to information, the government may withhold
certain types of information from the public such as state secrets regarding military, diplomatic,
and other national security matters. (Padilla v. Congress of the Philippines, G.R. No. 231671,
July 25, 2017)

THE EXECUTIVE BRANCH

EXECUTIVE AND COMMANDER-IN-CHIEF POWERS

The President has the duty to protect the State and its people. 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.

The 1987 Constitution has "vested the executive power in the President of the Republic
of the Philippines." While the vastness of the executive power that has been consolidated in the
person of the President cannot be expressed fully in one provision, the Constitution has stated
the prime duty of the government, of which the President is the head:

The prime duty of the Government is to serve and protect the

people. The Government may call upon the people to defend the State and, in
the fulfillment thereof, all citizens may be required, under conditions provided by
law, to render personal military or civil service. (Emphases supplied)

B. The duty to protect the territory and the citizens of the Philippines, the power to call
upon the people to defend the State, and the President as Commander-in-Chief

The duty to protect the State and its people must be carried out earnestly and effectively
throughout the whole territory of the Philippines xxx. 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 it has
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. xxxx
In addition, the Executive is constitutionally empowered to maintain peace and order; protect
life, liberty, and property; and promote the general welfare. (Saguisag v. Executive Secretary
Ochoa, G.R. No. 212426, January 12, 2016)

Duty to faithfully execute the law and defend the State: The duty to faithfully
execute the laws of the land is inherent in executive power. The role of the
President as the executor of the law includes the duty to defend the State, for which
purpose he may use that power in the conduct of foreign relations. In light of this
constitutional duty, it is the President's prerogative to do whatever is legal and
necessary for Philippine defense interests.

43 | P a g e
 The role of the President as the executor of the law includes the duty to defend the State,
for which purpose he may use that power in the conduct of foreign relations.

xxxx One of the principal functions of the supreme executive is the responsibility for the
faithful execution of the laws as embodied by the oath of office. The oath of the President
prescribed by the 1987 Constitution reads thus:

I do solemnly swear (or affirm) that I will faithfully and

conscientiously fulfill my duties as President (or Vice-President or Acting
President) of the Philippines, preserve and defend its Constitution, execute its
laws, do justice to every man, and consecrate myself to the service of the Nation.
So help me God. (In case of affirmation, last sentence will be
omitted.) (Emphases supplied)

This Court has interpreted the faithful execution clause as an obligation imposed on the
President, and not a separate grant of power. Section 1 7, 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, viz:

The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed.

xxxx

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. These functions include the faithful
execution of the law in autonomous regions; the right to prosecute crimes; the implementation
of transportation projects; the duty to ensure compliance with treaties, executive agreements
and executive orders; the authority to deport undesirable aliens; the conferment of national
awards under the President's jurisdiction; and the overall administration and control of the
executive department.

xxx

In light of this constitutional duty, it is the President's prerogative to do whatever is legal

and necessary for Philippine defense interests. It is 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 lawlesss 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. (Saguisag v. Executive Secretary Ochoa, G.R. No. 212426, January 12, 2016)

Constitutional limits on the President’s power as Commander-in-Chief

To be sure, this power is limited by the Constitution itself. To illustrate, the President
may call out the AFP to prevent or suppress instances of lawless violence, invasion or
rebellion, but not suspend the privilege of the writ of habeas corpus for a period exceeding 60
days, or place the Philippines or any part thereof under martial law exceeding that same span. In
the exercise of these powers, the President is also duty-bound to submit a report to Congress, in
person or in writing, within 48 hours from the proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus; and Congress may in turn revoke the proclamation or
suspension. The same provision provides for the Supreme Court's review of the factual basis for
the proclamation or suspension, as well as the promulgation of the decision within 30 days from
filing. (Saguisag v. Executive Secretary Ochoa, G.R. No. 212426, January 12, 2016)

The duty to faithfully execute the laws is inherent in executive power and is
intimately related to the other executive functions.

By 1987, executive power was codified not only in the Constitution, but also in the
Administrative Code:

44 | P a g e
 SECTION 1. Power of Control. - The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure that the laws be faithfully
executed. (Emphasis supplied)

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. These functions include the faithful
execution of the law in autonomous regions; the right to prosecute crimes; the implementation
of transportation projects; the duty to ensure compliance with treaties, executive agreements
and executive orders; the authority to deport undesirable aliens; the conferment of national
awards under the President's jurisdiction; and the overall administration and control of the
executive department.

xxx

More important, this mandate is self-executory by virtue of its being inherently executive
in nature. (Saguisag v. Executive Secretary Ochoa, G.R. No. 212426, January 12, 2016)

JUDICIAL REVIEW OF THE PRESIDENT’S EXERCISE OF

THE POWER TO DECLARE MARTIAL LAW

Supreme Court review of the proclamation of martial law and citizen’s right to
challenge the proclamation as safeguards against the possible abuse: The
Constitution specifically grants authority to the Supreme Court to determine the
sufficiency of the factual basis of the proclamation of martial law or suspension of
the privilege of the writ of habeas corpus. The factual basis of the declaration of
martial law or the suspension of the privilege of the writ of habeas corpus is not a
political question but precisely within the ambit of judicial review. Moreover, the
Constitution also relaxed the rule on standing by allowing any citizen to question
before this Court the sufficiency of the factual basis of such proclamation or
suspension.

All three petitions beseech the cognizance of this Court based on the third paragraph of
Section 18, Article VII (Executive Department) of the 1987 Constitution which provides:

The Supreme Court may review, in an appropriate proceeding filed by any

citizen, the sufficiency of the factual basis of the proclamation of martial law or
the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.

xxx [P]he petitioners theorized that the jurisdiction of this Court under the third
paragraph of Section 18, Article VII is sui generis. It is a special and specific jurisdiction of the
Supreme Court different from those enumerated in Sections 1 and 5 of Article VIII.

The Court agrees.

xxxxx

xxx Section 18, Article VII xxx specifically grants authority to the Court to determine the
sufficiency of the factual basis of the proclamation of martial law or suspension of the privilege
of the writ of habeas corpus.

b) "In an appropriate proceeding" does not refer to a petition for certiorari filed under
Section 1 or 5 of Article VIII

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

c) Purpose/significance of Section 18, Article VII is to constitutionalize the pre-Marcos

martial law ruling in In the Matter of the Petition for Habeas Corpus of Lansang.

45 | P a g e
 The third paragraph of Section 18, Article VII was inserted by the framers of the 1987
Constitution to constitutionalize the pre-Marcos martial law ruling of this Court in In the Matter
of the Petition for Habeas Corpus of Lansang to wit: that the factual basis of the declaration of
martial law or the suspension of the privilege of the writ of habeas corpus is not a political
question but precisely within the ambit of judicial review.

d) Purpose of Section 18, Article VII is to provide additional safeguard against possible
abuse by the President on the exercise of the extraordinary powers.

Section 18, Article VII is meant to provide additional safeguard against possible abuse by
the President in the exercise of his power to declare martial law or suspend the privilege of the
writ of habeas corpus.

xxx

To give more teeth to this additional safeguard, the framers of the 1987 Constitution not
only placed the President's proclamation of martial law or suspension of the privilege of the writ
of habeas corpus within the ambit of judicial review, it also relaxed the rule on standing by
allowing any citizen to question before this Court the sufficiency of the factual basis of such
proclamation or suspension. Moreover, the third paragraph of Section 18, Article VII veritably
conferred upon any citizen a demandable right to challenge the sufficiency of the factual basis of
said proclamation or suspension. It further designated this Court as the reviewing tribunal to
examine, in an appropriate proceeding, the sufficiency of the factual basis and to render its
decision thereon within a limited period of 30 days from date of filing.

e) Purpose of Section 18, Article VII is to curtail the extent of

the powers of the President.

The most important objective, however, of Section 18, Article VII is the curtailment of
the extent of the powers of the Commander-in-Chief. This is the primary reason why the
provision was not placed in Article VIII or the Judicial Department but remained under Article
VII or the Executive Department. (Lagman v. Medialdea, July 4, 2017, G.R. No. 231658)

The power to review by the Court and the power to revoke by Congress are
totally different and independent from each other although concededly, they have
the same trajectory, which is, the nullification of the presidential proclamation. The
Court can simultaneously exercise its power of review with, and independently
from, the power to revoke by Congress. Corollary, any perceived inaction or default
on the part of Congress does not deprive or deny the Court of its power to review.

The framers of the 1987 Constitution reformulated the scope of the extraordinary powers
of the President as Commander-in-Chief and the review of the said presidential action. In
particular, the President's extraordinary powers of suspending the privilege of the writ of habeas
corpus and imposing martial law are subject to the veto powers of the Court and Congress.

a) The judicial power to review versus the congressional power to revoke.

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

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

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

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

46 | P a g e
power of the Court to review can be exercised independently from the power of revocation of
Congress.

b) The framers of the 1987 Constitution intended the judicial power to review to be
exercised independently from the congressional power to revoke.

xxxx

Considering the above discussion, the Court finds it imperative to re-examine,

reconsider, and set aside its pronouncement in Fortun v. President Macapagal-Arroyo to the
effect that:

xxxx

By the above pronouncement, the Court willingly but unwittingly clipped its own power
and surrendered the same to Congress as well as: abdicated from its bounden duty to review.
Worse, the Court considered' itself just on stand-by, waiting and willing to act as a substitute in
case Congress "defaults." It is an aberration, a stray declaration, which must be rectified and set
aside in this proceeding.

We, therefore, hold that the Court can simultaneously exercise its power of review with,
and independently from, the power to revoke by Congress. Corollary, any perceived inaction or
default on the part of Congress does not deprive or deny the Court of its power to review.
(Lagman v. Medialdea, July 4, 2017, G.R. No. 231658)

The power and prerogative to determine whether the situation warrants a

mere exercise of the calling out power; or whether the situation demands
suspension of the privilege of the writ of habeas corpus; or whether it calls for the
declaration of martial law, lies, at least initially, with the President. The power to
choose, initially, which among these extraordinary powers to wield in a given set of
conditions is a judgment call on the part of the President. The power of judicial
review does not extend to calibrating the President's decision pertaining to which
extraordinary power to avail given a set of facts or conditions. To do so would be
tantamount to an incursion into the exclusive domain of the Executive and an
infringement on the prerogative that solely, at least initially, lies with the President.

The President as the Commander-in-Chief wields the extraordinary powers of: a) calling
out the armed forces; b) suspending the privilege of the writ of habeas corpus; and c) declaring
martial law. These powers may be resorted to only under specified conditions.

The framers of the 1987 Constitution reformulated the powers of the Commander-in-
Chief by revising the "grounds for the activation of emergency powers, the manner of activating
them, the scope of the powers, and review of presidential action."

a) Extraordinary powers of the President distinguished.

Among the three extraordinary powers, the calling out power is the most benign and
involves ordinary police action. The President may resort to this extraordinary power whenever
it becomes necessary to prevent or suppress lawless violence, invasion, or rebellion. "[T]he
power to call is fully discretionary to the President;" the only limitations being that he acts
within permissible constitutional boundaries or in a manner not constituting grave abuse of
discretion. In fact, "the actual use to which the President puts the armed forces is x x x not
subject to judicial review."

The extraordinary powers of suspending the privilege of the writ of habeas

corpus and/or declaring martial law may be exercised only when there is actual invasion or
rebellion, and public safety requires it. The 1987 Constitution imposed the following limits in
the exercise of these powers: "(1) a time limit of sixty days; (2) review and possible revocation by
Congress; [and] (3) review and possible nullification by the Supreme Court."

The framers of the 1987 Constitution eliminated insurrection, and the phrase "imminent
danger thereof' as grounds for the suspension of the privilege of the writ of habeas corpus or
declaration of martial law. They perceived the phrase "imminent danger" to be "fraught with
possibilities of abuse;" besides, the calling out power of the President "is sufficient for handling
imminent danger."

The powers to declare martial law and to suspend the privilege of the writ of habeas
corpus involve curtailment and suppression of civil rights and individual freedom. Thus, the

47 | P a g e
declaration of martial law serves as a warning to citizens that the Executive Department has
called upon the military to assist in the maintenance of law and order, and while the emergency
remains, the citizens must, under pain of arrest and punishment, not act in a manner that will
render it more difficult to restore order and enforce the law. As such, their exercise requires
more stringent safeguards by the Congress, and review by the Court.

xxxx

c) "Graduation" of powers refers to hierarchy based on scope and effect; it does not
refer to a sequence, order, or arrangement by which the Commander-in-Chief must adhere to.

Indeed, the 1987 Constitution gives the "President, as Commander-in- Chief, a 'sequence'
of 'graduated power[s]'. From the most to the least benign, these are: the calling out power, the
power to suspend the privilege of the writ of habeas corpus, and the power to declare martial
law." It must be stressed, however, that the graduation refers only to hierarchy based on scope
and effect. It does not in any manner refer to a sequence, arrangement, or order which the
Commander-in-Chief must follow. This so-called "graduation of powers" does not dictate or
restrict the manner by which the President decides which power to choose.

These extraordinary powers are conferred by the Constitution with the President as
Commander-in-Chief; it therefore necessarily follows that the power and prerogative to
determine whether the situation warrants a mere exercise of the calling out power; or whether
the situation demands suspension of the privilege of the writ of habeas corpus; or whether it
calls for the declaration of martial law, also lies, at least initially, with the President. The power
to choose, initially, which among these extraordinary powers to wield in a given set of conditions
is a judgment call on the part of the President. As Commander-in-Chief, his powers are broad
enough to include his prerogative to address exigencies or threats that endanger the
government, and the very integrity of the State.

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

d) The framers of the 1987 Constitution intended the Congress not to interfere a priori
in the decision-making process of the President.

The elimination by the framers of the 1987 Constitution of the requirement of prior
concurrence of the Congress in the initial imposition of martial law or suspension of the
privilege of the writ of habeas corpus further supports the conclusion that judicial review does
not include the calibration of the President's decision of which of his graduated powers will be
availed of in a given situation. Voting 28 to 12, the framers of the 1987 Constitution removed the
requirement of congressional concurrence in the first imposition of martial law and suspension
of the privilege.

xxx

e) The Court must similarly and necessarily refrain from calibrating the President's
decision of which among his extraordinary powers to avail given a certain situation or
condition.

It cannot be overemphasized that time is paramount in situations necessitating the

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

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

j) The recommendation of the Defense Secretary is not a condition for the declaration of
martial law or suspension of the privilege of the writ of habeas corpus.

Even the recommendation of, or consultation with, the Secretary of National Defense, or
other high-ranking military officials, is not a condition for the President to declare martial law.
48 | P a g e
A plain reading of Section 18, Article VII of the Constitution shows that the President's power to
declare martial law is not subject to any condition except for the requirements of actual invasion
or rebellion and that public safety requires it. Besides, it would be contrary to common sense if
the decision of the President is made dependent on the recommendation of his mere alter ego.
Rightly so, it is only on the President and no other that the exercise of the powers of the
Commander-in-Chief under Section 18, Article VII of the Constitution is bestowed.

g) In any event, the President initially employed the most benign action - the calling out
power -before he declared martial law and suspended the privilege of the writ of habeas
corpus.

At this juncture, it must be stressed that prior to Proclamation No. 216 or the declaration
of martial law on May 23, 201 7, the President had already issued Proclamation No. 55 on
September 4, 2016, declaring a state of national emergency on account of lawless violence in
Mindanao. This, in fact, is extant in the first Whereas Clause of Proclamation No. 216. Based on
the foregoing presidential actions, it can be gleaned that although there is no obligation or
requirement on his part to use his extraordinary powers on a graduated or sequential basis, still
the President made the conscious and deliberate effort to first employ the most benign from
among his extraordinary powers. As the initial and preliminary step towards suppressing and
preventing the armed hostilities in Mindanao, the President decided to use his calling out power
first. Unfortunately, the situation did not improve; on the contrary, it only worsened. Thus,
exercising his sole and exclusive prerogative, the President decided to impose martial law and
suspend the privilege of the writ of habeas corpus on the belief that the armed hostilities in
Mindanao already amount to actual rebellion and public safety requires it. (Lagman v.
Medialdea, July 4, 2017, G.R. No. 231658)

Facial review of the proclamation of martial law on the grounds of vagueness

is unwarranted. The proclamation does not regulate speech, religious freedom, and
other fundamental rights that may be facially challenged. What it seeks to penalize
is conduct, not speech.

V. Whether or not Proclamation No. 216 may be considered vague and thus void
because of (a) its inclusion of "other rebel groups"; and (b) the absence of any guideline
specifying its actual operational parameters within the entire Mindanao region.

Proclamation No. 216 is being facially challenged on the ground of "vagueness" by the
insertion of the phrase "other rebel groups" in its Whereas Clause and for lack of available
guidelines specifying its actual operational parameters within the entire Mindanao region,
making the proclamation susceptible to broad interpretation, misinterpretation, or confusion.

This argument lacks legal basis.

a) Void-for-vagueness doctrine.

The void-for-vagueness doctrine holds that a law is facially invalid if "men of common
intelligence must necessarily guess at its meaning and differ as to its application." "[A] statute or
act may be said to be vague when it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ in its application. [In such instance,
the statute] is repugnant to the Constitution in two respects: (1) it violates due process for failure
to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and
(2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle."

b) Vagueness doctrine applies only in free speech cases.

The vagueness doctrine is an analytical tool developed for testing "on their faces"
statutes in free speech cases or, as they are called in American law, First Amendment cases. 142 A
facial challenge is allowed to be made to a vague statute and also to one which is overbroad
because of possible "'chilling effect' on protected speech that comes from statutes violating free
speech. A person who does not know whether his speech constitutes a crime under an overbroad
or vague law may simply restrain himself from speaking in order to avoid being charged of a
crime. The overbroad or vague law thus chills him into silence."

It is best to stress that the vagueness doctrine has a special application only to free-
speech cases. They are not appropriate for testing the validity of penal statutes. Justice Mendoza
explained the reason as follows:

49 | P a g e
 A facial challenge is allowed to be made to a vague statute and to one
which is overbroad because of possible 'chilling effect' upon protected speech.
The theory is that ' [w]hen statutes regulate or proscribe speech and no readily
apparent construction suggests itself as a vehicle for rehabilitating the statutes in
a single prosecution, the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks on overly broad
statutes with no requirement that the person making the attack demonstrate that
his own conduct could not be regulated by a statute drawn with narrow
specificity.' xxx

This rationale does not apply to penal statutes. 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.

xxxx

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are

analytical tools developed for testing 'on their faces' statutes in free speech cases
or, as they are called in American law, First Amendment cases. They cannot be
made to do service when what is involved is a criminal statute. With respect to
such statute, the established rule is that ‘one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground that impliedly
it might also be taken as applying to other persons or other situations in which its
application might be unconstitutional.' As has been pointed out, 'vagueness
challenges in the First Amendment context, like overbreadth challenges typically
produce facial invalidation, while statutes found vague as a matter of due process
typically are invalidated [only] 'as applied' to a particular defendant.' x x x

xxxx

c) Proclamation No. 216 cannot be facially challenged using the vagueness doctrine.

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

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

As held by the Court in David v. President Macapagal-Arroyo, the facial review of

Proclamation No. 1017, issued by then President Gloria Macapagal-Arroyo declaring a state of
national emergency, on ground o vagueness is uncalled for since a plain reading of Proclamation
No. 10171 shows that it is not primarily directed at speech or even speech-related-conduct. It is
actually a call upon the Armed Forces of the Philippines (AFP) to prevent or suppress all forms
of lawless violence. Like Proclamation No. 1017, Proclamation No. 216 pertains to a spectrum of
conduct, not free speech, which is manifestly subject to state regulation.

e) Lack of guidelines/ operational parameters does not make Proclamation No. 216
vague.

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

Clearly, therefore, there is no need for the Court to determine the constitutionality of the
implementing and/or operational guidelines, general orders, arrest orders and other orders
issued after the proclamation for being irrelevant to its review. (Lagman v. Medialdea, July 4,
2017, G.R. No. 231658)

The calling out power is in a different category from the power to declare
martial law and the power to suspend the privilege of the writ of habeas corpus.
Nullification of a proclamation of martial law declaration will not affect a
proclamation in the exercise of calling out powers. The President may exercise the
power to call out the Armed Forces independently of the power to suspend the
50 | P a g e
privilege of the writ of habeas corpus and to declare martial law, although, of
course, it may also be a prelude to a possible future exercise of the latter powers, as
in this case. Even so, the Court's review of the President's declaration of martial law
and his calling out the Armed Forces necessarily entails separate
proceedings instituted for that particular purpose.
VI. Whether or not nullifying Proclamation No. 216 will (a) have the effect of recalling
Proclamation No. 55; or (b) also nullify the acts of the President in calling out the armed forces
to quell lawless violence in Marawi and other parts of the Mindanao region.

a) The calling out power is in a different category from the power to declare martial
law and the power to suspend the privilege of the writ of habeas corpus; nullification of
Proclamation No. 216 will not affect Proclamation No. 55.

The Court's ruling in these cases will not, in any way, affect the President's declaration of
a state of national emergency on account of lawless violence in Mindanao through Proclamation
No. 55 dated September 4, 2016, where he called upon the Armed Forces and the Philippine
National 1 Police (PNP) to undertake such measures to suppress any and all forms of lawless
violence in the Mindanao region, and to prevent such lawless violence from spreading and
escalating elsewhere in the Philippines.

In Kulayan v. Tan, the Court ruled that the President's calling out power is in a different
category from the power to suspend the privilege of the writ of habeas corpus and the power to
declare martial law:

x x x Congress may revoke such proclamation or suspension and the Court

may review the sufficiency of the factual basis thereof. However, there is no such
equivalent provision dealing with the revocation or review of the President's
action to call out the armed forces. The distinction places the calling out power in
a different category from the power to declare martial law and the power to
suspend the privilege of the writ of habeas corpus, otherwise, the framers of the
Constitution would have simply lumped together the three powers and provided
for their revocation and review without any qualification.

In other words, the President may exercise the power to call out the Armed Forces
independently of the power to suspend the privilege of the writ of habeas corpus and to declare
martial law, although, of course, it may also be a prelude to a possible future exercise of the
latter powers, as in this case.

Even so, the Court's review of the President's declaration of martial law and his calling
out the Armed Forces necessarily entails separate proceedings instituted for that particular
purpose.

As explained in Integrated Bar of the Philippines v. Zamora, the President's exercise of

his power to call out the armed forces to prevent or suppress lawless violence, invasion or
rebellion may only be examined by the Court as to whether such power was exercised within
permissible constitutional limits or in a manner constituting grave abuse of discretion.

xxxx

But, even assuming arguendo that the Court finds no sufficient basis for the declaration
of martial law in this case, such ruling could not affect the President's exercise of his calling out
power through Proclamation No. 55. (Lagman v. Medialdea, July 4, 2017, G.R. No. 231658)

Scope of judicial review of martial law: The phrase "sufficiency of factual

basis" in Section 18, Article VII of the Constitution should be understood as the only
test for judicial review of the President's power to declare martial law and suspend
the privilege of the writ of habeas corpus under Section 18, Article VII of the
Constitution. The Court does not need to satisfy itself that the President's decision is
correct, rather it only needs to determine whether the President's decision had
sufficient factual bases.

VII. The Scope of the Power to Review.

a) The scope of the power of review under the 1987 Constitution

refers only to the determination of the sufficiency of the factual basis of the declaration of
martial law and suspension of the privilege of habeas corpus.

51 | P a g e
 To recall, the Court, in the case of In the Matter of the Petition for Habeas Corpus of
Lansang, which was decided under the 1935 Constitution, held that it can inquire into, within
proper bounds, whether there has been adherence to or compliance with the constitutionally-
imposed limitations on the Presidential power to suspend the privilege of the writ of habeas
corpus. "Lansang limited the review function of the Court to a very prudentially narrow test of
arbitrariness." Fr. Bernas described the "proper bounds" in Lansang as follows:
What, however, are these 'proper bounds' on the power of the courts? The Court
first gave the general answer that its power was 'merely to check - not to supplant - the
Executive, or to ascertain merely whether he has gone beyond the constitutional limits of
his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his
act. More specifically, the Court said that its power was not 'even comparable with its
power over civil or criminal cases elevated thereto by appeal...in which cases the appellate
court has all the powers of the courtof origin,' nor to its power of quasi-judicial
administrative decisions where the Court is limited to asking whether 'there is
some evidentiary basis' for the administrative finding. Instead, the Court accepted the
Solicitor General's suggestion that it 'go no further than to satisfy [itself] not that the
President's decision is correct and that public safety was endangered by the rebellion and
justified the suspension of the writ, but that in suspending the writ, the President did not
act arbitrarily.

Lansang, however, was decided under the 1935 Constitution. The 1987 Constitution, by
providing only for judicial review based on the determination of the sufficiency of the factual
bases, has in fact done away with the test of arbitrariness as provided in Lansang.

b) The "sufficiency of factual basis test".

xxxxx Thus, the phrase "sufficiency of factual basis" in Section 18, Article VII of the
Constitution should be understood as the only test for judicial review of the President's power to
declare martial law and suspend the privilege of the writ of habeas corpus under Section 18,
Article VII of the Constitution. The Court does not need to satisfy itself that the President's
decision is correct, rather it only needs to determine whether the President's decision had
sufficient factual bases.

We conclude, therefore, that Section 18, Article VII limits the scope of judicial review by
the introduction of the "sufficiency of the factual basis" test. (Lagman v. Medialdea, July 4,
2017, G.R. No. 231658)

Since the exercise of these powers is a judgment call of the President, the
determination of the Supreme Court as to whether there is sufficient factual basis
for the exercise of such, must be based only on facts or information known by or
available to the President at the time he made the declaration or suspension, which
facts or information are found in the proclamation as well as the written Report
submitted by him to Congress. The Supreme Court's review is confined to the
sufficiency, not accuracy, of the information at hand during the declaration or
suspension; subsequent events do not have any bearing insofar as the Court's
review is concerned. Falsities of and/or inaccuracies in some of the facts stated in
the proclamation and the written report are not enough reasons for the Court to
invalidate the declaration and/or suspension as long as there are other facts in the
proclamation and the written Report that support the conclusion that there is an
actual invasion or rebellion and that public safety requires the declaration and/or
suspension. The court’s review would be limited to whether the facts in his
possession prior to and at the time of the declaration or suspension are sufficient for
him to declare martial law or suspend the privilege of the writ of habeas corpus.

As Commander-in-Chief, the President has the sole discretion to declare martial law
and/or to suspend the privilege of the writ of habeas corpus, subject to the revocation of
Congress and the review of this Court. Since the exercise of these powers is a judgment call of
the President, the determination of this Court as to whether there is sufficient factual basis for
the exercise of such, must be based only on facts or information known by or available to the
President at the time he made the declaration or suspension, which facts or information are
found in the proclamation as well as the written Report submitted by him to Congress. These
may be based on the situation existing at the time the declaration was made or past events. As to
how far the past events should be from the present depends on the President.

xxxx

52 | P a g e
 As to what facts must be stated in the proclamation and the written Report is up to the
President. As Commander-in-Chief, he has sole discretion to determine what to include and
what not to include in the proclamation and the written Report taking into account the urgency
of the situation as well as national security. He cannot be forced to divulge intelligence reports
and confidential information that may prejudice the operations and the safety of the military.

Similarly, events that happened after the issuance of the proclamation, which are
included in the written report, cannot be considered in determining the sufficiency of the factual
basis of the declaration of martial law and/or the suspension of the privilege of the writ
of habeas corpus since these happened after the President had already issued the proclamation.
xxxx

xxxx Neither should the Court expect absolute correctness of the facts stated in the
proclamation and in the written Report as the President could not be expected to verify the
accuracy and veracity of all facts reported to him due to the urgency of the situation. To require
precision in the President's appreciation of facts would unduly burden him and therefore
impede the process of his decision-making. Such a requirement will practically necessitate the
President to be on the ground to confirm the correctness of the reports submitted to him within
a period that only the circumstances obtaining would be able to dictate. Such a scenario, of
course, would not only place the President in peril but would also defeat the very purpose of the
grant of emergency powers upon him, that is, to borrow the words of Justice Antonio T. Carpio
in Fortun, to "immediately put an end to the root cause of the emergency". xxx

Besides, the framers of the 1987 Constitution considered intelligence reports of military
officers as credible evidence that the President can appraise and to which he can anchor his
judgment, as appears to be the case here.

xxxx

Certainly, the President cannot be expected to risk being too late before declaring martial
law or suspending the writ of habeas corpus. The Constitution, as couched, does not require
precision in establishing the fact of rebellion. The President is called to act as public safety
requires.

Corollary, as the President is expected to decide quickly on whether there is a need to

proclaim martial law even only on the basis of intelligence reports, it is irrelevant, for purposes
of the Court's review, if subsequent events prove that the situation had not been accurately
reported to him.

After all, the Court's review is confined to the sufficiency, not accuracy, of the
information at hand during the declaration or suspension; subsequent events do not have any
bearing insofar as the Court's review is concerned. In any event, safeguards under Section 18,
Article VII of the Constitution are in place to cover such a situation, e.g., the martial law period
is good only for 60 days; Congress may choose to revoke it even immediately after the
proclamation is made; and, this Court may investigate the factual background of the declaration.

Hence, the maxim falsus in uno, falsus in omnibus finds no application in this case.
Falsities of and/or inaccuracies in some of the facts stated in the proclamation and the written
report are not enough reasons for the Court to invalidate the declaration and/or suspension as
long as there are other facts in the proclamation and the written Report that support the
conclusion that there is an actual invasion or rebellion and that public safety requires the
declaration and/or suspension.

In sum, the Court's power to review is limited to the determination of whether the
President in declaring martial law and suspending the privilege of the writ of habeas corpus had
sufficient factual basis. Thus, our review would be limited to an examination on whether the
President acted within the bounds set by the Constitution, i.e., whether the facts in his
possession prior to and at the time of the declaration or suspension are sufficient for him to
declare martial law or suspend the privilege of the writ of habeas corpus.

VIII. The parameters for determining the sufficiency of the/actual basis/or the
declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus.

a) Actual invasion or rebellion, and public safety requirement.

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

53 | P a g e
declaration of martial law and/or suspension of the privilege of the writ of habeas corpus must
be struck down.

xxxx

Thus, rebellion as mentioned in the Constitution could only refer to rebellion as defined
under Article 134 of the RPC. xx

xxx

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

b) Probable cause is the allowable standard of proof for the President.

In determining the existence of rebellion, the President only needs to convince himself
that there is probable cause or evidence showing that more likely than not a rebellion was
committed or is being committed. To require him to satisfy a higher standard of proof would
restrict the exercise of his emergency powers. Along this line, Justice Carpio, in his Dissent
in Fortun v. President Macapagal-Arroyo, concluded that the President needs only to satisfy
probable cause as the standard of proof in determining the existence of either invasion or
rebellion for purposes of declaring martial law, and that probable cause is the most reasonable,
most practical and most expedient standard by which the President can fully ascertain the
existence or non-existence of rebellion necessary for a declaration of martial law or suspension
of the writ. This is because unlike other standards of proof, which, in order to be met, would
require much from the President and therefore unduly restrain his exercise of emergency
powers, the requirement of probable cause is much simpler. It merely necessitates an "average
man [to weigh] the facts and circumstances without resorting to the calibration of the rules of
evidence of which he has no technical knowledge. He [merely] relies on common sense [and] x x
x needs only to rest on evidence showing that, more likely than not, a crime has been committed
x x x by the accused."

To summarize, the parameters for determining the sufficiency of factual basis are as
follows: l) actual rebellion or invasion; 2) public safety requires it; the first two requirements
must concur; and 3) there is probable cause for the President to believe that there is actual
rebellion or invasion. (Lagman v. Medialdea, July 4, 2017, G.R. No. 231658)

The purpose of judicial review is not the determination of accuracy or veracity

of the facts upon which the President anchored his declaration of martial law or
suspension of the privilege of the writ of habeas corpus; rather, only the sufficiency
of the factual basis as to convince the President that there is probable cause that
rebellion exists. The allegation in the Lagman Petition that the facts stated in
Proclamation No. 216 and the Report are false, inaccurate, simulated, and/or
hyperbolic, does not persuade. The Supreme Court is not concerned about absolute
correctness, accuracy, or precision of the facts because to do so would unduly tie
the hands of the President in responding to an urgent situation.

IX. There is sufficient factual basis for the declaration of martial law and the
suspension of the writ of habeas corpus.

At this juncture, it bears to emphasize that the purpose of judicial review is not the
determination of accuracy or veracity of the facts upon which the President anchored his
declaration of martial law or suspension of the privilege of the writ of habeas corpus; rather,
only the sufficiency of the factual basis as to convince the President that there is probable cause
that rebellion exists. It must also be reiterated that martial law is a matter of urgency and much
leeway and flexibility should be accorded the President. As such, he is not expected to
completely validate all the information he received before declaring martial law or suspending
the privilege of the writ of habeas corpus.

xxxx

c) Inaccuracies, simulations, falsities, and hyperboles.

54 | P a g e
 The allegation in the Lagman Petition that the facts stated in Proclamation No. 216 and
the Report are false, inaccurate, simulated, and/or hyperbolic, does not persuade. As
mentioned, the Court is not concerned about absolute correctness, accuracy, or precision of the
facts because to do so would unduly tie the hands of the President in responding to an urgent
situation.

For a declaration of martial law or suspension of the privilege of the writ

of habeas corpus to be valid, there must be a concurrence of actual rebellion or
invasion and the public safety requirement.

X. Public safety requires the declaration of martial law and the suspension of the
privilege of the writ of habeas corpus in the whole of Mindanao.

Invasion or rebellion alone may justify resort to the calling out power but definitely not
the declaration of martial law or suspension of the privilege of the writ of habeas corpus. For a
declaration of martial law or suspension of the privilege of the writ of habeas corpus to be valid,
there must be a concurrence of actual rebellion or invasion and the public safety requirement. In
his Report, the President noted that the acts of violence perpetrated by the ASG and the Maute
Group were directed not only against government forces or establishments but likewise against
civilians and their properties. In addition and in relation to the armed hostilities, bomb threats
were issued; road blockades and checkpoints were set up; schools and churches were
burned; civilian hostages were taken and killed; non-Muslims or Christians were targeted;
young male Muslims were forced to join their group; medical services and delivery of basic
services were hampered; reinforcements of government troops and civilian movement were
hindered; and the security of the entire Mindanao Island was compromised.

These particular scenarios convinced the President that the atrocities had already
escalated to a level that risked public safety and thus impelled him to declare martial law and
suspend the privilege of the writ of habeas corpus. xxxx

xxxx

Based on the foregoing, we hold that the parameters for the declaration of martial law
and suspension of the privilege of the writ 0f habeas corpus have been properly and fully
complied with. Proclamation No. 216 has sufficient factual basis there being probable cause to
believe that rebellion exists and that public safety requires the martial law declaration and the
suspension of the privilege of the writ of habeas corpus. (Lagman v. Medialdea, July 4, 2017,
G.R. No. 231658)

The overriding and paramount concern of martial law is the protection of the
security of the nation and the good and safety of the public. Rebellion alone does
not justify the declaration of martial law or suspension of the privilege of the writ
of habeas corpus; the public safety requirement must likewise be present.

a) The overriding and paramount concern of martial law is the protection of the
security of the nation and the good and safety of the public.

xxx

Indeed, martial law and the suspension of the privilege of the writ of habeas corpus are
necessary for the protection of the security of the nation; suspension of the privilege of the writ
of habeas corpus is "precautionary, and although it might [curtail] certain rights of individuals,
[it] is for the purpose of defending and protecting the security of the state or the entire country
and our sovereign people". Commissioner Ople referred to the suspension of the privilege of the
writ of habeas corpus as a "form of immobilization" or "as a means of immobilizing potential
internal enemies" "especially in areas like Mindanao."

Aside from protecting the security of the country, martial law also guarantees and
promotes public safety. It is worthy of mention that rebellion alone does not justify the
declaration of martial law or suspension of the privilege of the writ of habeas corpus; the public
safety requirement must likewise be present. (Lagman v. Medialdea, July 4, 2017, G.R. No.
231658)

The determination by the Supreme Court of the sufficiency of factual basis

must be limited only to the facts and information mentioned in the Report and

55 | P a g e
Proclamation. The Supreme Court cannot "undertake an independent investigation
beyond the pleadings."

b) As Commander-in-Chief, the President receives vital, relevant, classified, and live

information which equip and assist him in making decisions.

xxx

It is beyond cavil that the President can rely on intelligence reports and classified
documents. xxx Significantly, respect to these so-called classified documents is accorded even
"when [the] authors of or witnesses to these documents may not be revealed."

In fine, not only does the President have a wide array of information before him, he also
has the right, prerogative, and the means to access vital, relevant, and confidential data,
concomitant with his position as Commander-in-Chief of the Armed Forces.

c) The Court has no machinery or tool equal to that of the Commander-in-Chief to ably
and properly assess the ground conditions.

In contrast, the Court does not have the same resources available to the President.
However, this should not be considered as a constitutional lapse. On the contrary, this is in line
with the function of the Court, particularly in this instance, to determine the sufficiency of
factual basis of Proclamation No. 216. As thoroughly discussed in Part VIII, the determination
by the Court of the sufficiency of factual basis must be limited only to the facts and information
mentioned in the Report and Proclamation. In fact, the Court, in David v. President
Macapagal-Arroyo, cautioned not to "undertake an independent investigation beyond the
pleadings." In this regard, "the Court will have to rely on the fact-finding capabilities of the
[E]xecutive [D]epartment;" in turn, the Executive Department will have to open its findings to
the Court, which it did during the closed-door session last June 15, 2017. (Lagman v.
Medialdea, July 4, 2017, G.R. No. 231658)

The Constitution grants to the President the discretion to determine the

territorial coverage of martial law and the suspension of the privilege of the writ
of habeas corpus. He may put the entire Philippines or only a part thereof under
martial law.

d) The 1987 Constitution grants to the President, as Commander-in-Chief, the

discretion to determine the territorial coverage or application of martial law or suspension of
the privilege of the writ of habeas corpus.

Section 18, Article VII of the Constitution states that "[i]n case of invasion or rebellion,
when the public safety requires it, [the President] may x x x suspend the privilege of writ
of habeas corpus or place the Philippines or any part thereof under martial law." Clearly,
the Constitution grants to the President the discretion to determine the territorial coverage of
martial law and the suspension of the privilege of the writ of habeas corpus. He may put the
entire Philippines or only a part thereof under martial law.

This is both an acknowledgement and a recognition that it is the Executive Department,

particularly the President as Commander-in-Chief, who is the repository of vital, classified, and
live information necessary for and relevant in calibrating the territorial application of martial
law and the suspension of the privilege of the writ of habeas corpus. It, too, is a concession that
the President has the tactical and military support, and thus has a more informed understanding
of what is happening on the ground. Thus, the Constitution imposed a limitation on the period
of application, which is 60 days, unless sooner nullified, revoked or extended, but not on the
territorial scope or area of coverage; it merely stated "the Philippines or any part thereof,"
depending on the assessment of the President. (Lagman v. Medialdea, July 4, 2017, G.R. No.
231658)

POWERS THAT MAY ONLY BE EXERCISED BY THE PRESIDENT IN PERSON

Executive power: Executive power is granted only to the President. It is only

the President, as Executive, who is authorized to exercise emergency powers as
provided under Section 23, Article VI, of the Constitution, as well as the calling-out
powers under Section 7, Article VII thereof.

56 | P a g e
 On 31 March 2009, Governor Tan issued Proclamation 1-09, declaring a state of
emergency in the province of Sulu. It cited the kidnapping incident [of three members from the
International Committee of the Red Cross] as a ground for the said declaration x x x.

In the same Proclamation, respondent Tan called upon the PNP and the CEF to set up
checkpoints and chokepoints, conduct general search and seizures including arrests, and other
actions necessary to ensure public safety. xxx

xxx

On 16 April 2009, [petitioners] filed the present Petition for Certiorari and Prohibition,
claiming that Proclamation 1-09 was issued with grave abuse of discretion amounting to lack or
excess of jurisdiction, as it threatened fundamental freedoms guaranteed under Article III of the
1987 Constitution.

i. One executive, one commander-in-chief

[I]t 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.

xxx

Corollarily, it is only the President, as 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 7, Article VII thereof. (Kulayan v. Tan,
G.R. No. 187298, July 03, 2012)

There are certain acts which, by their very nature, may only be performed by
the president as the Head of the State. One of these acts or prerogatives is the
bundle of Commander-in-Chief powers. These powers must be exercised by him in
person. Thus, the provincial governor does not possess the same calling-out powers
as the President. The calling-out powers contemplated under the Constitution is
exclusive to the President.

ii. The exceptional character of Commander-in-Chief powers dictate that they are
exercised by one president

Springing from the well-entrenched constitutional precept of One President is the notion
that there are certain acts which, by their very nature, may only be performed by the president
as the Head of the State. One of these acts or prerogatives is the bundle of Commander-in-Chief
powers to which the "calling-out" powers constitutes a portion. x x x

xxx

xxx As noted in Villena, "(t)here are certain constitutional powers and prerogatives of the
Chief Executive of the Nation which must be exercised by him in person and no amount of
approval or ratification will validate the exercise of any of those powers by any other person.
Such, for instance, is his power to suspend the writ of habeas corpus and proclaim martial law x
x x.

xxx

In the case of Integrated Bar of the Philippines v. Zamora, the Court had occasion to
rule that the calling-out powers belong solely to the President as commander-in-chief:
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. xxxx 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.

xxx

In the more recent case of Constantino, Jr. v. Cuisia, the Court characterized these
powers as exclusive to the President, precisely because they are of exceptional import:

57 | P a g e
 x x x The declaration of martial law, the suspension of the writ of habeas corpus,
and the exercise of the pardoning power, notwithstanding the judicial determination of
guilt of the accused, all fall within this special class that demands the exclusive exercise by
the President of the constitutionally vested power. The list is by no means exclusive, but
there must be a showing that the executive power in question is of similar gravitas and
exceptional import.

xxx

[R]espondent provincial governor is not endowed with the power to call upon the armed
forces at his own bidding. In issuing the assailed proclamation, Governor Tan exceeded his
authority when he declared a state of emergency and called upon the Armed Forces, the police,
and his own Civilian Emergency Force. The calling-out powers contemplated under the
Constitution is exclusive to the President. An exercise by another official, even if he is the local
chief executive, is ultra vires x x x. (Kulayan v. Tan, G.R. No. 187298, July 03, 2012)

DIPLOMATIC POWERS

The President is the sole organ in the conduct of foreign relations. The
presidential role in foreign affairs is dominant and the President is traditionally
accorded a wider degree of discretion in the conduct of foreign affairs.

C. 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.

The conduct of foreign relations is full of complexities and consequences xxx. It can only
be entrusted to that department of government which can act on the basis of the best available
information and can decide with decisiveness. x x x In fine, the presidential role in foreign
affairs is dominant and the President is traditionally accorded a wider degree of discretion in the
conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged under less
stringent standards, lest their judicial repudiation lead to breach of an international obligation,
rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of
other problems with equally undesirable consequences.

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. In specific provisions, the President's power is also limited, or at least shared, as
in Section 2 of Article II on the conduct of war; Sections 20 and 21 of Article VII on foreign
loans, treaties, and international agreements; Sections 4(2) and 5(2)(a) of Article VIII on the
judicial review of executive acts; Sections 4 and 25 of Article XVIII on treaties and international
agreements entered into prior to the Constitution and on the presence of foreign military troops,
bases, or facilities. (Saguisag v. Executive Secretary Ochoa, G.R. No. 212426, January 12,
2016)

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. The responsibility of
the President when it comes to treaties and international agreements under the
present Constitution is therefore shared with the Senate

D. The relationship between the two major presidential functions and the role of the
Senate

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

xxx

58 | P a g e
 The responsibility of the President when it comes to treaties and international
agreements under the present Constitution is therefore shared with the Senate. (Saguisag v.
Executive Secretary Ochoa, G.R. No. 212426, January 12, 2016)

The constitutional restriction on foreign military bases, troops, or facilities in

the Philippines refers solely to the initial entry of the foreign military bases, troops,
or facilities. Once entry is authorized, the subsequent acts are thereafter subject
only to the limitations provided by the rest of the Constitution and Philippine law,
and not to the Section 25 requirement of validity through a treaty.

2. The plain meaning of the Constitution prohibits the entry of foreign military bases,
troops or facilities, except by way of a treaty concurred in by the Senate - a clear limitation on
the President's dual role as defender of the State and as sole authority in foreign relations.

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: "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."
The specific limitation is given by Section 25 of the Transitory Provisions, the full text of which
reads as follows:
SECTION 25. 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.

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
function in matters of defense and foreign relations. (Saguisag v. Executive Secretary Ochoa,
G.R. No. 212426, January 12, 2016)

The President may enter into an executive agreement on foreign military

bases, troops, or facilities, if (a) it is not the instrument that allows the presence of
foreign military bases, troops, or facilities; or (b) it merely aims to implement an
existing law or treaty. The EDCA can be in the form of an executive agreement, since
it merely involves "adjustments in detail" in the implementation of the MDT and the
VFA.

3. The President, however, may enter into an executive agreement on foreign military
bases, troops, or facilities, if (a) it is not the instrument that allows the presence of foreign
military bases, troops, or facilities; or (b) it merely aims to implement an existing law or
treaty.

xxx [P]etitioners argue that EDCA must be in the form of a "treaty" duly concurred in by
the Senate. They stress that the Constitution is unambigous in mandating the transmission to
the Senate of all international agreements concluded after the expiration of the MBA in 1991 -
agreements that concern the presence of foreign military bases, troops, or facilities in the
country. Accordingly, petitioners maintain that the Executive Department is not given the choice
to conclude agreements like EDCA in the form of an executive agreement.

xxx

[A] plain textual reading of Article XIII, Section 25, inevitably leads to the conclusion
that it applies only to a proposed agreement between our government and a foreign government,
whereby military bases, troops, or facilities of such foreign government would be "allowed" or
would "gain entry" Philippine territory.

[T]he constitutionally restricted authority pertains to the entry of the bases, troops, or
facilities, and not to the activities to be done after entry.

xxx

It is evident that the constitutional restriction refers solely to the initial entry of the
foreign military bases, troops, or facilities. Once entry is authorized, the subsequent acts are
59 | P a g e
thereafter subject only to the limitations provided by the rest of the Constitution and Philippine
law, and not to the Section 25 requirement of validity through a treaty.

The VFA has already allowed the entry of troops in the Philippines. This Court stated
in Lim v. Executive Secretary:
xxx As conceived, the joint exercises may include training on new techniques of
patrol and surveillance to protect the nation's marine resources, sea search-and-rescue
operations to assist vessels in distress, disaster relief operations, civic action projects such
as the building of school houses, medical and humanitarian missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises.
It is only logical to assume that "Balikatan 02-1," a "mutual anti- terrorism advising,
assisting and training exercise," falls under the umbrella of sanctioned or allowable
activities in the context of the agreement. Both the history and intent of the Mutual
Defense Treaty and the VFA support the conclusion that combat-related activities -as
opposed to combat itself-such as the one subject of the instant petition, are indeed
authorized. (Emphasis supplied)

Moreover, the Court indicated that the Constitution continues to govern the conduct of
foreign military troops in the Philippines, readily implying the legality of their initial entry into
the country.

The OSG emphasizes that EDCA can be in the form of an executive agreement, since it
merely involves "adjustments in detail" in the implementation of the MDT and the VFA. It
points out that there are existing treaties between the Philippines and the U.S. that have already
been concurred in by the Philippine Senate and have thereby met the requirements of the
Constitution under Section 25. Because of the status of these prior agreements, respondent
emphasizes that EDCA need not be transmitted to the Senate. (Saguisag v. Executive Secretary
Ochoa, G.R. No. 212426, January 12, 2016)

As the sole organ of our foreign relations, the President may generally enter
into executive agreements subject to limitations defined by the Constitution and
may be in furtherance of a treaty already concurred in by the Senate.

4. The President may generally enter into executive agreements subject to limitations
defined by the Constitution and may be in furtherance of a treaty already concurred in by the
Senate.

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. They cover a wide array of subjects with
varying scopes and purposes, including those that involve the presence of foreign military forces
in the country.

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.

xxx [T]his constitutional mandate emanates from the inherent power of the President to
enter into agreements with other states, 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. (Saguisag v. Executive Secretary Ochoa, G.R. No. 212426, January
12, 2016)

Executive agreements are international agreements embodying adjustments

of detail carrying out well-established national policies and traditions and those
involving arrangements of a more or less temporary nature. These can cover a wide
array of subjects that have various scopes and purposes.

[E]xecutive agreements are defined as "international agreements embodying

adjustments of detail carrying out well-established national policies and traditions and those

60 | P a g e
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. xxx The Court thoroughly discussed this matter in the following
manner:
The categorization of subject matters that may be covered by
international agreements mentioned in Eastern Sea Trading is not cast in
stone. x x x.

As may be noted, almost half a century has elapsed since the Court
rendered its decision in Eastern Sea Trading. Since then, the conduct of foreign
affairs has become more complex and the domain of international law wider,
as to include such subjects as human rights, the environment, and the sea. In fact, in the
US alone, the executive agreements executed by its President from 1980 to 2000 covered
subjects such as defense, trade, scientific cooperation, aviation, atomic energy,
environmental cooperation, peace corps, arms limitation, and nuclear
safety, among others. Surely, the enumeration in Eastern Sea Trading cannot
circumscribe the option of each state on the matter of which the international
agreement format would be convenient to serve its best interest.

(Saguisag v. Executive Secretary Ochoa, G.R. No. 212426, January 12, 2016)

Treaties are formal documents which require ratification with the approval of
two-thirds of the Senate. Executive agreements become binding through executive
action without the need of a vote by the Senate or by Congress.

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), viz:
Treaties are formal documents which require ratification with the
approval of two-thirds of the Senate. Executive agreements become binding
through executive action without the need of a vote by the Senate or by
Congress.

xxxx

[T]he right of the Executive to enter into binding

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

Xxx

The inapplicability to executive agreements of the requirements under Section 21 was

again recognized in Bayan v. Zamora and in Bayan Muna v. Romulo. These cases, both decided
xxx that executive agreements are valid and binding even without the concurrence of the Senate.

Executive agreements may dispense with the requirement of Senate concurrence because
of the legal mandate with which they are concluded. xxxx [E]xecutive agreements merely involve
arrangements on the implementation of existing policies, rules, laws, or agreements. They are
concluded (1) to adjust the details of a treaty; (2) pursuant to or upon confirmation by an act of
the Legislature; or (3) in the exercise of the President's independent powers under the
Constitution. The raison d'etre of executive agreements hinges on prior constitutional or
legislative authorizations. (Saguisag v. Executive Secretary Ochoa, G.R. No. 212426, January
12, 2016)

An international agreement may take different forms: treaty, act, protocol,

agreement, concordat, compromis d'arbitrage, convention, covenant, declaration,
exchange of notes, statute, pact, charter, agreed minute, memorandum of
agreement, modus vivendi, or some other form. Under international law, the
distinction between a treaty and an international agreement or even an executive
agreement is irrelevant for purposes of determining international rights and
obligations.

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 International practice has accepted the use of various forms and designations of
international agreements, ranging from the traditional notion of a treaty - which connotes a
formal, solemn instrument - to engagements concluded in modem, simplified forms that no
longer necessitate ratification. An international agreement may take different forms: treaty, act,
protocol, agreement, concordat, compromis d'arbitrage, convention, covenant, declaration,
exchange of notes, statute, pact, charter, agreed minute, memorandum of agreement, modus
vivendi, or some other form. Consequently, under international law, the distinction between a
treaty and an international agreement or even an executive agreement is irrelevant for purposes
of determining international rights and obligations. (Saguisag v. Executive Secretary Ochoa,
G.R. No. 212426, January 12, 2016)

Distinctions between executive agreements and treaties: Executive

agreements must remain traceable to an express or implied authorization under the
Constitution, statutes, or treaties. Treaties are, by their very nature, considered
superior to executive agreements. Treaties are products of the acts of the Executive
and the Senate unlike executive agreements, which are solely executive actions.

There remain two very important features that distinguish treaties from executive
agreements and translate them into terms of art in the domestic setting.

First, executive agreements must remain traceable to an express or implied

authorization under the Constitution, statutes, or treaties. The absence of these precedents puts
the validity and effectivity of executive agreements under serious question for the main function
of the Executive is to enforce the Constitution and the laws enacted by the Legislature, not to
defeat or interfere in the performance of these rules. In turn, executive agreements cannot
create new international obligations that are not expressly allowed or reasonably implied in the
law they purport to implement.

Second, treaties are, by their very nature, considered superior to executive agreements.
Treaties are products of the acts of the Executive and the Senate unlike executive agreements,
which are solely executive actions. Because of legislative participation through the Senate, a
treaty is regarded as being on the same level as a statute. If there is an irreconcilable conflict, a
later law or treaty takes precedence over one that is prior. An executive agreement is treated
differently. Executive agreements that are inconsistent with either a law or a treaty are
considered ineffective. Both types of international agreement are nevertheless subject to the
supremacy of the Constitution. (Saguisag v. Executive Secretary Ochoa, G.R. No. 212426,
January 12, 2016)

Constitutional limitations on the President's prerogative in concluding

international agreements.

This rule does not imply, though, that the President is given carte blanche to exercise
this discretion. Although the Chief Executive wields the exclusive authority to conduct our
foreign relations, this power must still be exercised within the context and the parameters set by
the Constitution, as well as by existing domestic and international laws. There are constitutional
provisions that restrict or limit the President's prerogative in concluding international
agreements, such as those that involve the following:

a. The policy of freedom from nuclear weapons within Philippine territory

b. The fixing of tariff rates, import and export quotas, tonnage and wharfage dues, and
other duties or imposts, which must be pursuant to the authority granted by Congress

c. The grant of any tax exemption, which must be pursuant to a law concurred in by a
majority of all the Members of Congress

d. The contracting or guaranteeing, on behalf of the Philippines, of foreign loans that

must be previously concurred in by the Monetary Board

e. The authorization of the presence of foreign military bases, troops, or facilities in the
country must be in the form of a treaty duly concurred in by the Senate.

f. For agreements that do not fall under paragraph 5, the concurrence of the Senate is
required, should the form of the government chosen be a treaty. (Saguisag v. Executive
Secretary Ochoa, G.R. No. 212426, January 12, 2016)

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 The President has the choice to enter into an international agreement by way
of an executive agreement or a treaty. The Court does not look into whether an
international agreement should be in the form of a treaty or an executive
agreement, save in cases in which the Constitution or a statute requires otherwise.
In view of the vast constitutional powers and prerogatives of the President in
foreign affairs, the task of the Court is to determine whether the international
agreement is consistent with the applicable limitations.

5. The President had the choice to enter into EDCA by way of an executive agreement or
a treaty.

No court can tell the President to desist from choosing an executive agreement over a
treaty to embody an international agreement, unless the case falls squarely within Article VIII,
Section 25.

xxx

What we can glean from the discussions of the Constitutional Commissioners is that they
understood the following realities:

1. Treaties, international agreements, and executive agreements are all constitutional

manifestations of the conduct of foreign affairs with their distinct legal characteristics.

a. Treaties are formal contracts between the Philippines and other States-parties, which
are in the nature of international agreements, and also of municipal laws in the sense of their
binding nature.

b. International agreements are similar instruments, the provisions of which may require
the ratification of a designated number of parties thereto. These agreements involving political
issues or changes in national policy, as well as those involving international agreements of a
permanent character, usually take the form of treaties. They may also include commercial
agreements, which are executive agreements essentially, but which proceed from previous
authorization by Congress, thus dispensing with the requirement of concurrence by the Senate.

c. Executive agreements are generally intended to implement a treaty already enforced or

to determine the details of the implementation thereof that do not affect the sovereignty of the
State.

2. Treaties and international agreements that cannot be mere executive agreements

must, by constitutional decree, be concurred in by at least two-thirds of the Senate.

3. However, an agreement - the subject of which is the entry of foreign military troops,
bases, or facilities - is particularly restricted. The requirements are that it be in the form of a
treaty concurred in by the Senate; that when Congress so requires, it be ratified by a majority of
the votes cast by the people in a national referendum held for that purpose; and that it be
recognized as a treaty by the other contracting State.

4. Thus, executive agreements can continue to exist as a species of international

agreements.

That is why our Court has ruled the way it has in several cases.

In Bayan Muna v. Romulo, we ruled that the President acted within the scope of her
constitutional authority and discretion when she chose to enter into the RP-U.S. Non-Surrender
Agreement in the form of an executive agreement, instead of a treaty, and in ratifying the
agreement without Senate concurrence. The Court en banc discussed this intrinsic presidential
prerogative as follows:

xxx
The categorization of subject matters that may be covered by international
agreements mentioned in Eastern Sea Trading is not cast in stone. There are no hard
and fast rules on the propriety of entering, on a given subject, into a treaty or an
executive agreement as an instrument of international relations. The primary
consideration in the choice of the form of agreement is the parties' intent and
desire to craft an international agreement in the form they so wish to further
their respective interests. xxxx

xxxx

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 But over and above the foregoing considerations is the fact that - save for the
situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution - when a
treaty is required, the Constitution does not classify any subject, like that
involving political issues, to be in the form of, and ratified as, a treaty. What
the Constitution merely prescribes is that treaties need the concurrence of the Senate by a
vote defined therein to complete the ratification process.

xxxx

x x x. As the President wields vast powers and influence, her conduct in the
external affairs of the nation is, as Bayan would put it, "executive altogether." The right
of the President to enter into or ratify binding executive agreements has been
confirmed by long practice.

In thus agreeing to conclude the Agreement thru E/N BF0-028-03, then

President Gloria Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted
within the scope of the authority and discretion vested in her by the
Constitution. At the end of the day, the President - by ratifying, thru her
deputies, the non-surrender agreement - did nothing more than discharge a
constitutional duty and exercise a prerogative that pertains to her
office. (Emphases supplied)

Indeed, in the field of external affairs, the President must be given a larger measure of
authority and wider discretion, subject only to the least amount of checks and restrictions under
the Constitution. xxxx

xxxx

Accordingly, in the exercise of its power of judicial review, the Court does not look into
whether an international agreement should be in the form of a treaty or an executive agreement,
save in cases in which the Constitution or a statute requires otherwise. Rather, in view of the
vast constitutional powers and prerogatives granted to the President in the field of foreign
affairs, the task of the Court is to determine whether the international agreement is consistent
with the applicable limitations. (Saguisag v. Executive Secretary Ochoa, G.R. No. 212426,
January 12, 2016)

Executive agreements may cover the matter of foreign military forces if it

merely involves detail adjustments.

6. Executive agreements may cover the matter of foreign military forces if it merely
involves detail adjustments.

The practice of resorting to executive agreements in adjusting the details of a law or a

treaty that already deals with the presence of foreign military forces is not at all unusual in this
jurisdiction. In fact, the Court has already implicitly acknowledged this practice in Lim v.
Executive Secretary. In that case, the Court was asked to scrutinize the constitutionality of the
Terms of Reference of the Balikatan 02-1 joint military exercises, which sought to implement
the VFA. Concluded in the form of an executive agreement, the Terms of Reference detailed the
coverage of the term "activities" mentioned in the treaty and settled the matters pertaining to
the construction of temporary structures for the U.S. troops during the activities; the duration
and location of the exercises; the number of participants; and the extent of and limitations on
the activities of the U.S. forces. The Court upheld the Terms of Reference as being consistent
with the VFA. It no longer took issue with the fact that the Balikatan Terms of Reference was
not in the form of a treaty concurred in by the Senate, even if it dealt with the regulation of the
activities of foreign military forces on Philippine territory.

In Nicolas v. Romulo, the Court again impliedly affirmed the use of an executive
agreement in an attempt to adjust the details of a provision of the VFA. (Saguisag v. Executive
Secretary Ochoa, G.R. No. 212426, January 12, 2016)

Basic requirements for the validity executive agreement

[W]e reiterate the following pronouncements xxx:

1. Section 25, Article XVIII of the Constitution, contains stringent requirements that
must be fulfilled by the international agreement allowing the presence of foreign military bases,
troops, or facilities in the Philippines: (a) the agreement must be in the form of a treaty, and (b)
it must be duly concurred in by the Senate.

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 2. If the agreement is not covered by the above situation, then the President may choose
the form of the agreement (i.e., either an executive agreement or a treaty), provided that the
agreement dealing with foreign military bases, troops, or facilities is not the principal agreement
that first allows their entry or presence in the Philippines.

3. The executive agreement must not go beyond the parameters, limitations, and
standards set by the law and/or treaty that the former purports to implement; and must not
unduly expand the international obligation expressly mentioned or necessarily implied in the
law or treaty.

4. The executive agreement must be consistent with the Constitution, as well as with
existing laws and treaties. (Saguisag v. Executive Secretary Ochoa, G.R. No. 212426, January
12, 2016)

POWER TO TRANSFER APPROPRIATIONS

Constitutional requisites for a valid transfer of appropriated funds: 1) law

authorizing the transfer; 2) savings; and 3) transfer is to augment an item in the
general appropriations law for their respective offices.

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

(1) There is a law authorizing the President, the President of the Senate, the Speaker of
the House of Representatives, the Chief Justice of the Supreme Court, and the heads of the
Constitutional Commissions to transfer funds within their respective offices;

(2) The funds to be transferred are savings generated from the appropriations for their
respective offices; and

(3) The purpose of the transfer is to augment an item in the general appropriations law
for their respective offices. (Araullo v. Aquino, G.R. No. 209287, July 1, 2014)

Why the transfer of funds under DAP is invalid

The transfer of funds under the Disbursement Acceleration Program (DAP) is

invalid for lack of a valid law authorizing the transfer. The GAAs of 2011 and 2012
authorized the transfers "to augment any item in this Act", and the effect was that
the 2011 and 2012 GAAs allowed the transfer of funds to augment any item in the
GAAs even if the item belonged to an office outside the Executive, contravention of
the Constitution.

[Section 59 of the 2011 GAA and Section 53 of the 2012 GAA] were textually unfaithful to
the Constitution for not carrying the phrase "for their respective offices" contained in Section
25(5). The impact of the phrase "for their respective offices" was to authorize only transfers of
funds within their offices (i.e., in the case of the President, the transfer was to an item of
appropriation within the Executive). The provisions carried a different phrase ("to augment any
item in this Act"), and the effect was that the 2011 and 2012 GAAs thereby literally allowed the
transfer of funds from savings to augment any item in the GAAs even if the item belonged to an
office outside the Executive. To that extent did the 2011 and 2012 GAAs contravene the
Constitution. At the very least, the aforequoted provisions cannot be used to claim authority to
transfer appropriations from the Executive to another branch, or to a constitutional
commission. (Araullo v. Aquino, G.R. No. 209287, July 1, 2014)

The transfer of funds under DAP is invalid because DAP funds were not
necessarily “savings.” Savings are realized only when the purpose for which the
funds had been allocated were already satisfied, or the need for such funds had
ceased to exist. Funds described as “unreleased or unallotted” are not necessarily
savings.

[T]he power to augment was to be used only when the purpose for which the funds had
been allocated were already satisfied, or the need for such funds had ceased to exist, for only

65 | P a g e
then could savings be properly realized. This interpretation prevents the Executive from unduly
transgressing Congress’ power of the purse.

The definition of "savings" in the GAAs, particularly for 2011, 2012 and 2013, reflected
this interpretation and made it operational, viz:

xxx

The three instances listed in the GAAs’ aforequoted definition were a sure indication that
savings could be generated only upon the purpose of the appropriation being fulfilled, or upon
the need for the appropriation being no longer existent.

xxx

The fact alone that the appropriations are unreleased or unallotted is a mere description
of the status of the items as unallotted or unreleased. They have not yet ripened into categories
of items from which savings can be generated. (Araullo v. Aquino, G.R. No. 209287, July 1,
2014)

The transfer of funds under DAP is invalid because DAP funds were not
transferred to augment existing items in the GAA. There must be an existing item,
project or activity, purpose or object of expenditure with an appropriation to which
savings may be transferred for the purpose of augmentation. The power to augment
cannot be used to fund non-existent items in the GAA.

The third requisite for a valid transfer of funds is that the purpose of the transfer should
be "to augment an item in the general appropriations law for the respective offices." The term
"augment" means to enlarge or increase in size, amount, or degree.

The GAAs for 2011, 2012 and 2013 set as a condition for augmentation that the
appropriation for the PAP item to be augmented must be deficient.

xxx

In other words, an appropriation for any PAP must first be determined to be deficient
before it could be augmented from savings. x x x

xxx

Upon careful review of the documents contained in the seven evidence packets, we
conclude that the "savings" pooled under the DAP were allocated to PAPs that were not covered
by any appropriations in the pertinent GAAs.

xxx

[T]he failure of the GAAs to set aside any amounts for an expense category sufficiently
indicated that Congress purposely did not see fit to fund, much less implement, the PAP
concerned. This indication becomes clearer when even the President himself did not
recommend in the NEP to fund the PAP. The consequence was that any PAP requiring
expenditure that did not receive any appropriation under the GAAs could only be a new PAP,
any funding for which would go beyond the authority laid down by Congress in enacting the
GAAs. That happened in some instances under the DAP. (Araullo v. Aquino, G.R. No. 209287,
July 1, 2014)

The power to augment cannot be used to fund non-existent provisions in the GAA.

xxx

[T]here must be an existing item, project or activity, purpose or object of expenditure

with an appropriation to which savings may be transferred for the purpose of augmentation.
Accordingly, so long as there is an item in the GAA for which Congress had set aside a specified
amount of public fund, savings may be transferred thereto for augmentation purposes. x x x

xxx

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 [O]nly DAP projects found in the appropriate GAAs may be the subject of augmentation
by legally accumulated savings. (Araullo v. Aquino, G.R. No. 209287, February 3, 2015)

The transfer of funds under DAP is invalid for because some of the transfers
of appropriation were not made to their respective offices. Cross-border transfers,
whether as augmentation, or as aid, are prohibited.

[T]he phrase "respective offices" used in Section 25(5), supra, refers to the entire
Executive, with respect to the President; the Senate, with respect to the Senate President; the
House of Representatives, with respect to the Speaker; the Judiciary, with respect to the Chief
Justice; the Constitutional Commissions, with respect to their respective Chairpersons.

Did any cross-border transfers or augmentations transpire?

xxx

The records show, indeed, that funds amounting to P143,700,000.00 and

P250,000,000.00 were transferred under the DAP respectively to the COA and the House of
Representatives. Those transfers of funds, which constituted cross-border augmentations for
being from the Executive to the COA and the House of Representatives x x x.

xxx

Regardless of the variant characterizations of the cross-border transfers of funds, the

plain text of Section 25(5), supra, disallowing cross border transfers was disobeyed. Cross-
border transfers, whether as augmentation, or as aid, were prohibited under Section 25(5),
supra. (Araullo v. Aquino, G.R. No. 209287, July 1, 2014)

DAP in Summary: Violation of Section 25(5), Article VI of the 1987

Constitution and the doctrine of separation of powers

[T]he following acts and practices under the Disbursement Acceleration Program,
National Budget Circular No. 541 and related executive issuances [are] unconstitutional for
being in violation of Section 25(5), Article VI of the 1987 Constitution and the doctrine of
separation of powers, namely:

(a) The withdrawal of unobligated allotments from the implementing agencies, and the
declaration of the withdrawn unobligated allotments and unreleased appropriations as savings
prior to the end of the fiscal year and without complying with the statutory definition of savings
contained in the General Appropriations Acts;

(b) The cross-border transfers of the savings of the Executive to augment the
appropriations of other offices outside the Executive; and

(c) The funding of projects, activities and programs that were not covered by any
appropriation in the General Appropriations Act. (Araullo v. Aquino, G.R. No. 209287, July 1,
2014)

POWER TO CREATE EXECUTIVE OFFICES

OR REORGANIZE THE GOVERNMENT

Presidential power to create investigating bodies: Pursuant to his duty to

faithfully execute the law, the President has the power to conduct investigations
and create an ad hoc investigating body.

The power of control is entirely different from the power to create public offices. The
former is inherent in the Executive, while the latter finds basis from either a valid delegation
from Congress, or his inherent duty to faithfully execute the laws.

The creation of the Philippine Truth Commission finds justification under Section 17,
Article VII of the Constitution, imposing upon the President the duty to ensure that the laws are
faithfully executed. The President’s power to conduct investigations to aid him in ensuring the
faithful execution of laws – in this case, fundamental laws on public accountability and
transparency – is inherent in the President’s powers as the Chief Executive. That the authority of

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the President to conduct investigations and to create bodies to execute this power is not
explicitly mentioned in the Constitution or in statutes does not mean that he is bereft of such
authority. As explained in the landmark case of Marcos v. Manglapus, the powers of the
President cannot be said to be limited only to the specific powers enumerated in the
Constitution. (Biraogo v. Philippine Truth Commission, G.R. No. 192935, December 7, 2010)

Reorganization of the government: The President does not have continuing

authority to reorganize the national government.

Is there a valid delegation of power from Congress, empowering the President to create a
public office? According to the OSG, the power to create a truth commission pursuant to the
above provision finds statutory basis under P.D. 1416, as amended by P.D. No. 1772. The said
law granted the President the continuing authority to reorganize the national government,
including the power to group, consolidate bureaus and agencies, to abolish offices, to transfer
functions, to create and classify functions, services and activities, transfer appropriations, and to
standardize salaries and materials.

The Court, however, declines to recognize P.D. No. 1416 as a justification for the
President to create a public office. Said decree is already stale, anachronistic and inoperable.
P.D. No. 1416 was a delegation to then President Marcos of the authority to reorganize the
administrative structure of the national government including the power to create offices and
transfer appropriations pursuant to one of the purposes of the decree. Clearly, as it was only for
the purpose of providing manageability and resiliency during the interim, P.D. No. 1416, as
amended by P.D. No. 1772, became functus oficio upon the convening of the First Congress, as
expressly provided in Section 6, Article XVIII of the 1987 Constitution. (Biraogo v. Philippine
Truth Commission, G.R. No. 192935, December 7, 2010)

PARDONING POWER

The pardoning power of the President cannot be limited by legislative action.

This doctrine of non-diminution or non-impairment of the President’s power of
pardon by acts of Congress was strongly adhered to by the framers of the 1987
Constitution. Articles 36 and 41 of the Revised Penal Code cannot abridge or
diminish the exclusive power and prerogative of the President to pardon persons
convicted of violating penal statutes.

[T]he petition for disqualification filed by Risos-Vidal against former President Estrada,
docketed as SPA No. 13-211 (DC), was anchored on Section 40 of the LGC, in relation to Section
12 of the OEC, that is, having been convicted of a crime punishable by imprisonment of one year
or more, and involving moral turpitude, former President Estrada must be disqualified to run
for and hold public elective office notwithstanding the fact that he is a grantee of a pardon that
includes a statement expressing "[h]e is hereby restored to his civil and political rights." Risos-
Vidal theorizes that former President Estrada is disqualified from running for Mayor of Manila
in the May 13, 2013 Elections, and remains disqualified to hold any local elective post despite
the presidential pardon extended to him in 2007 by former President Arroyo for the reason that
it (pardon) did not expressly provide for the remission of the penalty of perpetual absolute
disqualification, particularly the restoration of his (former President Estrada) right to vote and
be voted upon for public office. She invokes Articles 36 and 41 of the Revised Penal Code as the
foundations of her theory.

xxx

The pardoning power of the President cannot be limited by legislative action.

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, to wit:

Section 19. Except in cases of impeachment, or as otherwise provided in this

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

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

68 | P a g e
 xxxx

Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of

election laws, rules, and regulations shall be granted by the President without the favorable
recommendation of the Commission.

It is apparent from the foregoing constitutional provisions that the only instances in
which the President may not extend pardon remain to be in: (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.

In Cristobal v. Labrador and Pelobello v. Palatino, x x x, the Court then unequivocally

declared that "subject to the limitations imposed by the Constitution, the pardoning power
cannot be restricted or controlled by legislative action." The Court reiterated this
pronouncement in Monsanto v. Factoran, Jr. thereby establishing that, under the present
Constitution, "a pardon, being a presidential prerogative, should not be circumscribed by
legislative action." Thus, 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 x x x

xxx

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 statutes. (Risos-Vidal v.
Commission on Elections, G.R. No. 206666, January 21, 2015)

Effect of presidential pardon: A presidential pardon restoring to a person his

civil and political rights, includes the restoration of the right to seek public elective
office, which is a political right.

A close scrutiny of the text of the pardon extended 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

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.

xxx

The disqualification of former President Estrada under Section 40 of the LGC in relation
to Section 12 of the OEC was removed by his acceptance of the absolute pardon granted to him.
(Risos-Vidal v. Commission on Elections, G.R. No. 206666, January 21, 2015)

69 | P a g e
 POWER OF GENERAL SUPERVISION OVER LOCAL GOVERNMENTS

Since LGUs are subject only to the power of general supervision of the
President, the President’s authority is limited to seeing to it that rules are followed
and laws are faithfully executed. The President may only point out that rules have
not been followed but the President cannot lay down the rules, neither does he have
the discretion to modify or replace the rules. Thus, the grant of additional
compensation like hospitalization and health care insurance benefits by the LGU to
its officials and employees does not need the approval of the President to be valid.

Section 17, Article VII of the Constitution xxx states:

Section 17. The President shall have control of

all executive departments, bureaus and offices. He shall ensure that
the laws be faithfully executed. (Emphasis supplied)

Being an LGU, petitioner is merely under the President’s general supervision pursuant to
Section 4, Article X of the Constitution:

Sec. 4. The President of the Philippines shall exercise

general supervision over local governments. Provinces with
respect to component cities and municipalities, and cities and
municipalities with respect to component barangays shall ensure that the
acts of their component units are within the scope of their prescribed
powers and functions. (Emphasis supplied)

The President’s power of general supervision means the power of a superior officer to see
to it that subordinates perform their functions according to law. This is distinguished from the
President’s power of control which is the power to alter or modify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment of
the President over that of the subordinate officer. The power of control gives the President the
power to revise or reverse the acts or decisions of a subordinate officer involving the exercise of
discretion.

Since LGUs are subject only to the power of general supervision of the President, the
President’s authority is limited to seeing to it that rules are followed and laws are faithfully
executed. The President may only point out that rules have not been followed but the President
cannot lay down the rules, neither does he have the discretion to modify or replace the rules.
Thus, the grant of additional compensation like hospitalization and health care insurance
benefits in the present case does not need the approval of the President to be valid. (Province of
Negros Occidental v. Commissioners, Commission on Audit, G.R. No. 182574, September 28,
2010)

PRESIDENTIAL IMMUNITY FROM SUIT

Presidential immunity from suit: A non-sitting President does not enjoy

immunity from suit, even for acts committed during the latter’s tenure. Hence,
former President Arroyo cannot use the presidential immunity from suit to shield
herself from judicial scrutiny, within the context of amparo proceedings, to
determine if she was responsible or accountable for the abduction of a person.

In Estrada v. Desierto, we clarified the doctrine that a non-sitting President does not
enjoy immunity from suit, even for acts committed during the latter’s tenure. x x x

xxx

Further, in our Resolution in Estrada v. Desierto, we reiterated that the presidential

immunity from suit exists only in concurrence with the president’s incumbency:

x x x given the intent of the 1987 Constitution to breathe life to the

policy that a public office is a public trust, the petitioner, as a non-sitting

70 | P a g e
 President, cannot claim executive immunity for his alleged criminal acts
committed while a sitting President. x x x

Applying the foregoing rationale to the case at bar, it is clear that former President Arroyo
cannot use the presidential immunity from suit to shield herself from judicial scrutiny that would
assess whether, within the context of amparo proceedings, she was responsible or accountable for
the abduction of Rodriguez. (Rodriguez v. Macapagal-Arroyo, G.R. No. 193160, November 15,
2011)

THE JUDICIARY
RULE-MAKING POWER

The 1987 Constitution took away the power of Congress to repeal, alter, or
supplement rules concerning pleading, practice and procedure. The power to
promulgate rules of pleading, practice and procedure is no longer shared by the
Supreme Court with Congress, more so with the Executive.

The 1987 Constitution textually altered the power-sharing scheme under the previous
charters by deleting in Section 5(5) of Article VIII Congress subsidiary and corrective
power. This glaring and fundamental omission led the Court to observe in Echegaray v.
Secretary of Justice that this Court’s power to promulgate judicial rules is no longer shared by
this Court with Congress:

xxx

The rule making power of this Court was expanded. This Court for the first time
was given the power to promulgate rules concerning the protection and enforcement of
constitutional rights. The Court was also granted for the first time the power to
disapprove rules of procedure of special courts and quasi-judicial bodies. But most
importantly, the 1987 Constitution took away the power of Congress to repeal, alter, or
supplement rules concerning pleading, practice and procedure. In fine, the power to
promulgate rules of pleading, practice and procedure is no longer shared by this
Court with Congress, more so with the Executive. x x x x (Italicization in the original;
boldfacing supplied)

Any lingering doubt on the import of the textual evolution of Section 5(5) should be put
to rest with our recent En Banc ruling denying a request by the Government Service Insurance
System (GSIS) for exemption from payment of legal fees based on Section 39 of its Charter,
Republic Act No. 8291, exempting GSIS from all taxes, assessments, fees, charges or dues of all
kinds. Reaffirming Echegarays construction of Section 5(5), the Court described its exclusive
power to promulgate rules on pleading, practice and procedure as one of the safeguards of this
Courts institutional independence:

[T]he payment of legal fees is a vital component of the rules promulgated

by this Court concerning pleading, practice and procedure, it cannot be validly
annulled, changed or modified by Congress. As one of the safeguards of this
Courts institutional independence, the power to promulgate rules of pleading,
practice and procedure is now the Courts exclusive domain. x x x (Emphasis
supplied)

(Baguio Market Vendors Multi-Purpose Cooperative v. Cabato-Cortes, G.R. No.

165922, February 26, 2010)

Congress cannot grant exemptions from payment of legal fees. First, payment
of legal fees is part of the rule-making power of the Supreme Court, which is no
longer shared with Congress. Second, any grant by Congress of exemptions from
payment of legal fees will impair the Judiciary’s fiscal autonomy and erode its
independence.

PHCCI [Perpetual Help Community Cooperative] contends that as a cooperative it

enjoys the exemption [from the payment of court and sheriffs fees] provided for under Section
6, Article 61 of Republic Act No. 9520 x x x.

71 | P a g e
 xxx

On 11 February 2010, however, the Supreme Court En Banc issued a Resolution in A.M.
No. 08-2-01-0, which denied the petition of the Government Service Insurance System (GSIS)
for recognition of its exemption from payment of legal fees imposed under Section 22 of Rule
141 of the Rules of Court. In the GSIS case, the Court citing Echegaray v. Secretary of
Justice, stressed that the 1987 Constitution molded an even stronger and more independent
judiciary; took away the power of Congress to repeal, alter, or supplement rules concerning
pleading, practice and procedure; and held that the power to promulgate these Rules is no
longer shared by the Court with Congress, more so, with the Executive, thus:

Since the payment of legal fees is a vital component of the rules promulgated by
this Court concerning pleading, practice and procedure, it cannot be validly annulled,
changed or modified by Congress. As one of the safeguards of this Courts institutional
independence, the power to promulgate rules of pleading, practice and procedure is now
the Courts exclusive domain. That power is no longer shared by this Court with Congress,
much less with the Executive.

xxxx

xxx

Congress could not have carved out an exemption for the GSIS from the payment
of legal fees without transgressing another equally important institutional safeguard of
the Courts independence - fiscal autonomy. Fiscal autonomy recognizes the power and
authority of the Court to levy, assess and collect fees, including legal fees. Moreover, legal
fees under Rule 141 have two basic components, the Judiciary Development Fund (JDF)
and the Special Allowance for the Judiciary Fund (SAJF). The laws which established the
JDF and SAJF expressly declare the identical purpose of these funds to guarantee the
independence of the Judiciary as mandated by the Constitution and public policy. Legal
fees therefore do not only constitute a vital source of the Courts financial resources but
also comprise an essential element of the Courts fiscal independence. Any exemption
from the payment of legal fees granted by Congress to government-owned or controlled
corporations and local government units will necessarily reduce the JDF and the
SAJF. Undoubtedly, such situation is constitutionally infirm for it impairs the Courts
guaranteed fiscal autonomy and erodes its independence.

(Re: in the Matter of Clarification of Exemption from Payment of all Court and
Sheriff's Fees of Cooperative etc., A.M. No. 12-2-03-0, March 13, 2012)

Court injunctions against Ombudsman investigations: The prohibition under

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

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

Section 14. Restrictions. – No writ of injunction shall be issued by any court to

delay an investigation being conducted by the Ombudsman under this Act, unless there
is a prima facie evidence that the subject matter of the investigation is outside the
jurisdiction of the Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or
findings of the Ombudsman, except the Supreme Court, on pure question of law.

xxxx

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

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

xxxx

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

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

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

xxxx

xxx Thus, pending deliberation on whether or not to adopt the same, the
Court, under its sole prerogative and authority over all matters of procedure,
deems it proper to declare as ineffective the prohibition against courts other than
the Supreme Court from issuing provisional injunctive writs to enjoin
investigations conducted by the Office of the Ombudsman, until it is adopted as part of
the rules of procedure through an administrative circular duly issued therefor.

Hence, with Congress interfering with matters of procedure (through passing the first
paragraph of Section 14, RA 6770) without the Court’s consent thereto, it remains that the CA
had the authority to issue the questioned injunctive writs enjoining the implementation of the
preventive suspension order against Binay, Jr. At the risk of belaboring the point, these
issuances were merely ancillary to the exercise of the CA’s certiorari jurisdiction conferred to it
under Section 9 (1), Chapter I of BP 129, as amended, and which it had already acquired over the
main CA-G.R. SP No. 139453 case. (Carpio-Morales v. Court of Appeals, G.R. Nos. 217126-27,
November 10, 2015)

POWER TO EXECUTE DECISIONS

The execution of a decision is but an integral part of the adjudicative function

of the Supreme Court. Thus, in the execution of its continuing mandamus against
agencies of the Executive Department, the Supreme Court may order such agencies
to perform their assigned tasks within specific time frames or completion periods.
The imposition of such time frames or completion periods is not an encroachment
over the powers and functions of the Executive Branch.

73 | P a g e
 On December 18, 2008, this Court rendered a Decision in G.R. Nos. 171947-48 ordering
petitioners to clean up, rehabilitate and preserve Manila Bay in their different capacities. The
fallo reads:

WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the
CA in CA-G.R. CV No. 76528 and SP No. 74944 and the September 13, 2002 Decision of
the RTC in Civil Case No. 1851-99 are AFFIRMED but with MODIFICATIONS in view of
subsequent developments or supervening events in the case. The fallo of the RTC Decision
shall now read:
WHEREFORE, judgment is hereby rendered ordering the abovenamed
defendant-government agencies to clean up, rehabilitate, and preserve Manila Bay, and
restore and maintain its waters to SB level (Class B sea waters per Water Classification
Tables under DENR Administrative Order No. 34 [1990]) to make them fit for swimming,
skin-diving, and other forms of contact recreation.

xxxx

The case is now in the execution phase of the final and executory December 18, 2008
Decision. The Manila Bay Advisory Committee was created [by the Supreme Court] to receive
and evaluate the quarterly progressive reports on the activities undertaken by the agencies in
accordance with said decision and to monitor the execution phase.

In the absence of specific completion periods, the Committee recommended that time
frames be set for the agencies to perform their assigned tasks. This may be viewed as an
encroachment over the powers and functions of the Executive Branch headed by the President of
the Philippines.

This view is misplaced.

The issuance of subsequent resolutions by the Court is simply an exercise of judicial

power under Art. VIII of the Constitution, because the execution of the Decision is but an
integral part of the adjudicative function of the Court. x x x

While additional activities are required of the agencies like submission of plans of action,
data or status reports, these directives are but part and parcel of the execution stage of a final
decision under Rule 39 of the Rules of Court. x x x

It is clear that the final judgment includes not only what appears upon its face to have
been so adjudged but also those matters "actually and necessarily included therein or necessary
thereto." Certainly, any activity that is needed to fully implement a final judgment is necessarily
encompassed by said judgment.

Moreover, the submission of periodic reports is sanctioned by Secs. 7 and 8, Rule 8 of the
Rules of Procedure for Environmental cases: x x x

With the final and executory judgment in MMDA, the writ of continuing mandamus
issued in MMDA means that until petitioner-agencies have shown full compliance with the
Court’s orders, the Court exercises continuing jurisdiction over them until full execution of the
judgment. (Metro Manila Development Authority [MMDA] v. Concerned Residents of Manila
Bay, G.R. Nos. 171947-48, February 15, 2011)

JUDICIAL AND BAR COUNCIL

It is the function of the JBC to search, screen, and select nominees

recommended for appointment to the Judiciary. It shall prepare a list with at least
three qualified nominees for a particular vacancy in the Judiciary to be submitted to
the President, who, in turn, shall appoint from the shortlist for said specific vacancy.

Article VIII, Section 9 of the 1987 Constitution contains the mandate of the JBC, as well
as the limitation on the President's appointing power to the Judiciary, thus:

Sec. 9. The Members of the Supreme Court and judges of lower courts shall be
appointed by the President from a list of at least three nominees prepared by the
Judicial and Bar Council for every vacancy. Such appointments need no confirmation.

74 | P a g e
 For the lower courts, the President shall issue the appointments within ninety
days from the submission of the list.

It is the function of the JBC to search, screen, and select nominees recommended for
appointment to the Judiciary. It shall prepare a list with at least three qualified nominees for a
particular vacancy in the Judiciary to be submitted to the President, who, in turn, shall appoint
from the shortlist for said specific vacancy. Petitioners emphasize that Article VIII, Section 9 of
the 1987 Constitution is clear and unambiguous as to the mandate of the JBC to submit a
shortlist of nominees to the President for "every vacancy" to the Judiciary, as well as the
limitation on the President's authority to appoint members of the Judiciary from among the
nominees named in the shortlist submitted by the JBC. (Aguinaldo v. Aquino, G.R. No. 224302,
November 29, 2016)

Why the President in choosing appointees to vacancies in the judiciary can

disregard the clustering of nominees by the Judicial and Bar Council (JBC)

Restriction on the President’s power to choose: The power to recommend of

the JBC cannot be used to restrict or limit the President's power to appoint as the
latter's prerogative to choose someone whom he/she considers worth appointing to
the vacancy in the Judiciary is still paramount. As long as in the end, the President
appoints someone nominated by the JBC, the appointment is valid.

In this case, the JBC submitted six separate lists, with five to seven nominees each, for
the six vacancies in the Sandiganbayan, particularly, for the 16th, 17th, 18th, 19th, 20th and
21st Associate Justices. Petitioners contend that only nominees for the position of the
16th Sandiganbayan Associate Justice may be appointed as the 16th Sandiganbayan Associate
Justice, and the same goes for the nominees for each of the vacancies for the 17 th, 18th, 19th, 20th,
and 21st Sandiganbayan Associate Justices. However, on January 20, 2016, President Aquino
issued the appointment papers for the six new Sandiganbayan Associate Justices, to wit:

xxx

Petitioners insist that President Aquino could only choose one nominee from each of the
six separate shortlists submitted by the JBC for each specific vacancy, and no other; and any
appointment made in deviation of this procedure is a violation of the Constitution. Hence,
petitioners pray, among other reliefs, that the appointments of respondents Musngi and Econg,
who belonged to the same shortlist for the position of 21 st Associate Justice, be declared null and
void for these were made in violation of Article VIII, Section 9 of the 1987 Constitution.

xxx

The instant Petition fundamentally challenges President Aquino's appointment of

respondents Musngi and Econg as the 16th and 18th Sandiganbayan Associate Justices.
Petitioners contend that only one of them should have been appointed as both of them were
included in one cluster of nominees for the 21stSandiganbayan Associate Justice. The Petition
presents for resolution of the Court the issue of whether President Aquino violated Article VIII,
Section 9 of the 1987 Constitution and gravely abused his discretionary power to appoint
members of the Judiciary when he disregarded the clustering by the JBC of the nominees for
each specific vacant position of Sandiganbayan Associate Justice. xxx
xxx

President Aquino did not violate the Constitution or commit grave abuse of discretion in
disregarding the clustering of nominees into six separate shortlists for the six vacancies for
Sandiganbayan Associate Justice.

Article VIII, Section 9 of the 1987 Constitution provides that "[t]he Members of the
Supreme Court and judges of lower courts shall be appointed by the President from a list of at
least three nominees prepared by the Judicial and Bar Council for every vacancy."

The appointment process for the Judiciary seems simple enough if there is only one
vacancy to consider at a time. The power of the President to appoint members of the Judiciary is
beyond question, subject to the limitation that the President can only appoint from a list of at
least three nominees submitted by the JBC for every vacancy. However, the controversy in this
case arose because by virtue of Republic Act No. 10660, creating two new divisions of the
Sandiganbayan with three members each, there were six simultaneous vacancies for Associate

75 | P a g e
Justice of said collegiate court; and that the JBC submitted six separate shortlists for the
vacancies for the 16th to the 21st Sandiganbayan Associate Justices.

xxx

The primordial question then for resolution of the Court is whether President Aquino,
under the circumstances, was limited to appoint only from the nominees in the shortlist
submitted by the JBC for each specific vacancy.

The Court answers in the negative.

The JBC was created under the 1987 Constitution with the principal function of
recommending appointees to the Judiciary. It is a body, representative of all the stakeholders in
the judicial appointment process, intended to rid the process of appointments to the Judiciary of
the evils of political pressure and partisan activities. xxx

xxx

It is apparent from the aforequoted CONCOM deliberations that nomination by the JBC
shall be a qualification for appointment to the Judiciary, but this only means that the President
cannot appoint an individual who is not nominated by the JBC. It cannot be disputed herein
that respondents Musngi and Econg were indeed nominated by the JBC and, hence, qualified to
be appointed as Sandiganbayan Associate Justices.

It should be stressed that the power to recommend of the JBC cannot be used to restrict
or limit the President's power to appoint as the latter's prerogative to choose someone whom
he/she considers worth appointing to the vacancy in the Judiciary is still paramount. As long as
in the end, the President appoints someone nominated by the JBC, the appointment is valid. On
this score, the Court finds herein that President Aquino was not obliged to appoint one new
Sandiganbayan Associate Justice from each of the six shortlists submitted by the JBC, especially
when the clustering of nominees into the six shortlists encroached on President Aquino's power
to appoint members of the Judiciary from all those whom the JBC had considered to be
qualified for the same positions of Sandiganbayan Associate Justice. (Aguinaldo v. Aquino, G.R.
No. 224302, November 29, 2016)

Noteworthy is the fact that the Court unanimously voted that in this case of six
simultaneous vacancies for Sandiganbayan Associate Justice, the JBC acted beyond its
constitutional mandate in clustering the nominees into six separate short lists and President
Aquino did not commit grave abuse of discretion in disregarding the said clustering.

The JBC invokes its independence, discretion, and wisdom, and maintains that it
deemed it wiser and more in accord with Article VIII, Section 9 of the 1987 Constitution to
cluster the nominees for the six simultaneous vacancies for Sandiganbayan Associate Justice
into six separate short lists. The independence and discretion of the JBC, however, is not
without limits. It cannot impair the President's power to appoint members of the Judiciary and
his statutory power to determine the seniority of the newly-appointed Sandiganbayan Associate
Justices. The Court cannot sustain the strained interpretation of Article VIII, Section 9 of the
1987 Constitution espoused by the JBC, which ultimately curtailed the President's appointing
power.

In its Decision dated November 29, 2016, the Court ruled that the clustering impinged
upon the President's appointing power in the following ways: The President's option for every
vacancy was limited to the five to seven nominees in each cluster. Once the President had
appointed a nominee from one cluster, then he was proscribed from considering the other
nominees in the same cluster for the other vacancies. All the nominees applied for and were
found to be qualified for appointment to any of the vacant Associate Justice positions in the
Sandiganbayan, but the JBC failed to explain why one nominee should be considered for
appointment to the position assigned to one specific cluster only. Correspondingly, the
nominees' chance for appointment was restricted to the consideration of the one cluster in
which they were included, even though they applied and were found to be qualified for all the
vacancies. Moreover, by designating the numerical order of the vacancies, the JBC established
the seniority or order of preference of the new Sandiganbayan Associate Justices, a power which
the law (Section 1, paragraph 3 of Presidential Decree No. 160616), rules (Rule II, Section 1 (b)
of the Revised Internal Rules of the Sandiganbayan17), and jurisprudence (Re: Seniority Among
the Four Most Recent Appointments to the Position of Associate Justices of the Court of
Appeals18), vest exclusively upon the President. (Aguinaldo v. Aquino, G.R. No. 224302,
February 21, 2017)

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 Restriction on the President’s power to determine the seniority of members of
a collegiate court: The President's power to appoint members of a collegiate court,
such as the Sandiganbayan, is the power to determine the seniority or order of
preference of such newly appointed members by controlling the date and order of
issuance of said members' appointment or commission papers. By already
designating the numerical order of the vacancies, the JBC would be establishing the
seniority or order of preference of the new Sandiganbayan Associate Justices even
before their appointment by the President and, thus, unduly arrogating unto itself a
vital part of the President's power of appointment.

It bears to point out that part of the President's power to appoint members of a collegiate
court, such as the Sandiganbayan, is the power to determine the seniority or order of preference
of such newly appointed members by controlling the date and order of issuance of said
members' appointment or commission papers. By already designating the numerical order of
the vacancies, the JBC would be establishing the seniority or order of preference of the new
Sandiganbayan Associate Justices even before their appointment by the President and, thus,
unduly arrogating unto itself a vital part of the President's power of appointment.

There is also a legal ground why the simultaneous vacant positions of Sandiganbayan
Associate Justice should not each be assigned a specific number by the JBC. The Sandiganbayan
Associate Justice positions were created without any distinction as to rank in seniority or order
of preference in the collegiate court. The President appoints his choice nominee to the post of
Sandiganbayan Associate Justice, but not to a Sandiganbayan Associate Justice position with an
identified rank, which is automatically determined by the order of issuance of appointment by
the President. The appointment does not specifically pertain to the 16th, 17th, 18th, 19th, 20th,
or 21st Sandiganbayan Associate Justice, because the Sandiganbayan Associate Justice's ranking
is temporary and changes every time a vacancy occurs in said collegiate court. In fact, by the end
of 2016, there will be two more vacancies for Sandiganbayan Associate Justice.51 These
vacancies will surely cause movement in the ranking within the Sandiganbayan. At the time of
his/her appointment, a Sandiganbayan Associate Justice might be ranked 16th, but because of
the two vacancies occurring in the court, the same Sandiganbayan Associate Justice may
eventually be higher ranked. (Aguinaldo v. Aquino, G.R. No. 224302, November 29, 2016)

Clustering as a device to favor or prejudice a qualified nominee: The JBC

should give all qualified nominees fair and equal opportunity to be appointed. The
clustering by the JBC of nominees for simultaneous or closely successive vacancies
in collegiate courts can actually be a device to favor or prejudice a particular
nominee.

The JBC, in sorting the qualified nominees into six clusters, one for every vacancy, could
influence the appointment process beyond its constitutional mandate of recommending
qualified nominees to the President. Clustering impinges upon the President's power of
appointment, as well as restricts the chances for appointment of the qualified nominees, because
(1) the President's option for every vacancy is limited to the five to seven nominees in the
cluster; and (2) once the President has appointed from one cluster, then he is proscribed from
considering the other nominees in the same cluster for the other vacancies. The said limitations
are utterly without legal basis and in contravention of the President's appointing power.

To recall, the JBC invited applications and recommendations and conducted interviews
for the "six newly created positions of Associate Justice of the Sandiganbayan." Applicants,
including respondents Musngi and Econg, applied for the vacancy for "Associate Justice of the
Sandiganbayan." Throughout the application process before the JBC, the six newly-created
positions of Sandiganbayan Associate Justice were not specifically identified and differentiated
from one another for the simple reason that there was really no legal justification to do so. The
requirements and qualifications, as well as the power, duties, and responsibilities are the same
for all the Sandiganbayan Associate Justices. If an individual is found to be qualified for one
vacancy, then he/she is also qualified for all the other vacancies. It was only at the end of the
process that the JBC precipitously clustered the 37 qualified nominees into six separate
shortlists for each of the six vacant positions. (Aguinaldo v. Aquino, G.R. No. 224302,
November 29, 2016)

The JBC avers that it has no duty to increase the chances of appointment of every
candidate it has adjudged to have met the minimum qualifications for a judicial post. The Court
does not impose upon the JBC such duty, it only requires that the JBC gives all qualified

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nominees fair and equal opportunity to be appointed. The clustering by the JBC of nominees for
simultaneous or closely successive vacancies in collegiate courts can actually be a device to favor
or prejudice a particular nominee. A favored nominee can be included in a cluster with no other
strong contender to ensure his/her appointment; or conversely, a nominee can be placed in a
cluster with many strong contenders to minimize his/her chances of appointment. (Aguinaldo v.
Aquino, G.R. No. 224302, February 21, 2017)

Clustering as arbitrary: Without objective criteria, standards, or guidelines in

determining which nominees are to be included in which cluster, the clustering of
nominees for specific vacant posts seems to be at the very least, totally arbitrary.
The lack of such criteria, standards, or guidelines may open the clustering to
manipulation to favor or prejudice a qualified nominee.

The problem is that the JBC has so far failed to present a legal, objective, and rational
basis for determining which nominee shall be included in a cluster. Simply saying that it is the
result of the deliberation and voting by the JBC for every vacancy is unsatisfactory.

xxx

The Court emphasizes that the requirements and qualifications, as well as the powers,
duties, and responsibilities are the same for all vacant posts in a collegiate court, such as the
Sandiganbayan; and if an individual is found to be qualified for one vacancy, then he/she is
found to be qualified for all the other vacancies - there are no distinctions among the vacant
posts. It is improbable that the nominees expressed their desire to be appointed to only a
specific vacant position and not the other vacant positions in the same collegiate court, when
neither the Constitution nor the law provides a specific designation or distinctive description for
each vacant position in the collegiate court. The JBC did not cite any cogent reason in its Motion
for Reconsideration-in-Intervention for assigning a nominee to a particular cluster/vacancy.
The Court highlights that without objective criteria, standards, or guidelines in determining
which nominees are to be included in which cluster, the clustering of nominees for specific
vacant posts seems to be at the very least, totally arbitrary. The lack of such criteria, standards,
or guidelines may open the clustering to manipulation to favor or prejudice a qualified nominee.
(Aguinaldo v. Aquino, G.R. No. 224302, February 21, 2017)

Judicial and Bar Council: There should be only one (1) representative from
Congress.

There should be only one (1) representative from Congress in the Judicial and Bar
Council: The unmistakable tenor of Article VIII, Section 8(1) was to have each ex-officio member
as representing one co-equal branch of government. (Chavez v. Judicial and Bar Council, G.R.
No. 202242, July 17, 2012)

JBC’s policy of requiring five years of service as judges of first-level courts

before they can qualify as applicant to second-level courts is constitutional. The JBC
has the authority to set the standards/criteria in choosing its nominees for every
vacancy in the judiciary, subject only to the minimum qualifications required by the
Constitution and law for every position.

The crux of this petition is whether or not the policy of JBC requiring five years of service
as judges of first-level courts before they can qualify as applicant to second-level courts is
constitutional.

xxx

As an offspring of the 1987 Constitution, the JBC is mandated to recommend appointees

to the judiciary and only those nominated by the JBC in a list officially transmitted to the
President may be appointed by the latter as justice or judge in the judiciary. x x x While the 1987
Constitution has provided the qualifications of members of the judiciary, this does not preclude
the JBC from having its own set of rules and procedures and providing policies to effectively
ensure its mandate.

The functions of searching, screening, and selecting are necessary and incidental to the
JBC’s principal function of choosing and recommending nominees for vacancies in the judiciary
for appointment by the President. x x x In carrying out its main function, the JBC has the

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authority to set the standards/criteria in choosing its nominees for every vacancy in the
judiciary, subject only to the minimum qualifications required by the Constitution and law for
every position. The search for these long-held qualities necessarily requires a degree of flexibility
in order to determine who is most fit among the applicants. Thus, the JBC has sufficient but not
unbridled license to act in performing its duties.

[T]he JBC had to establish a set of uniform criteria in order to ascertain whether an
applicant meets the minimum constitutional qualifications and possesses the qualities expected
of him and his office. Thus, the adoption of the five-year requirement policy applied by JBC to
the petitioner’s case is necessary and incidental to the function conferred by the Constitution to
the JBC.

xxx

As the constitutional body granted with the power of searching for, screening, and
selecting applicants relative to recommending appointees to the Judiciary, the JBC has the
authority to determine how best to perform such constitutional mandate. Pursuant to this
authority, the JBC issues various policies setting forth the guidelines to be observed in the
evaluation of applicants, and formulates rules and guidelines in order to ensure that the rules
are updated to respond to existing circumstances. Its discretion is freed from legislative,
executive or judicial intervention to ensure that the JBC is shielded from any outside pressure
and improper influence. Limiting qualified applicants in this case to those judges with five years
of experience was an exercise of discretion by the JBC. (Villanueva v. Judicial and Bar Council,
G.R. No. 211833, April 7, 2015)

THE COMMISSION ON AUDIT

The COA is endowed with latitude to determine, prevent, and disallow
irregular, unnecessary, excessive, extravagant, or unconscionable expenditures of
government funds. The Court has accorded not only respect but also finality to COA
findings especially when their decisions are not tainted with grave abuse of
discretion.

The COA is endowed with latitude to determine, prevent, and disallow irregular,
unnecessary, excessive, extravagant, or unconscionable expenditures of government funds. It
has the power to ascertain whether public funds were utilized for the purpose for which they had
been intended by law. The Constitution has made the COA "the guardian of public funds, vesting
it with broad powers over all accounts pertaining to government revenue and expenditures and
the uses of public funds and property, including the exclusive authority to define the scope of its
audit and examination, establish the techniques and methods for such review, and promulgate
accounting and auditing rules and regulations." Thus, the COA is generally accorded complete
discretion in the exercise of its constitutional duty and responsibility to examine and audit
expenditures of public funds, particularly those which are perceptibly beyond what is sanctioned
by law.

x x x The Court has accorded not only respect but also finality to their findings especially
when their decisions are not tainted with unfairness or arbitrariness that would amount to grave
abuse of discretion. Only when the COA acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, may this Court entertain and
grant a petition for certiorari brought to assail its actions. (Technical Education and Skills
Development Authority v. Commission on Audit, G.R. No. 196418, February 10, 2015)

COA has primary jurisdiction over money claims against government agencies
and instrumentalities, including local governments. The COA and not the RTC has
primary jurisdiction to pass upon a money claim against a local government unit.

[R]espondent seeks to enforce a claim for sums of money allegedly owed by petitioner, a
local government unit.

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

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

a) money claim against the Government; b) request for concurrence in the hiring of legal
retainers by government agency; c) write off of unliquidated cash advances and dormant accounts
receivable in amounts exceeding one million pesos (P 1,000,000.00); d) request for relief from
accountability for loses due to acts of man, i.e. theft, robbery, arson, etc, in amounts in excess of
Five Million pesos (P 5,000,000.00).

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

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

This case is one over which the doctrine of primary jurisdiction clearly held sway for
although petitioner’s collection suit for P487,662.80 was within the jurisdiction of the RTC, the
circumstances surrounding petitioner’s claim brought it clearly within the ambit of the COA’s
jurisdiction.

First, petitioner was seeking the enforcement of a claim for a certain amount of money
against a local government unit. This brought the case within the COA’s domain to pass upon
money claims against the government or any subdivision thereof under Section 26 of the
Government Auditing Code of the Philippines:
The authority and powers of the Commission [on Audit] shall extend to and
comprehend all matters relating to x x x the examination, audit, and settlement of all debts
and claims of any sort due from or owing to the Government or any of its subdivisions,
agencies, and instrumentalities. x x x.

(Province of Aklan v. Jody King Construction and Development Corp., G.R. Nos. 197592
& 20262, November 27, 2013)

COA’s authority over money claims is limited to liquidated claims, or those

determined or readily determinable from vouchers, invoices, and such other papers
within reach of accounting officers.

The scope of the COA’s authority to take cognizance of claims is circumscribed, however,
by an unbroken line of cases holding statutes of similar import to mean only liquidated claims,
or those determined or readily determinable from vouchers, invoices, and such other papers
within reach of accounting officers. Petitioner’s claim was for a fixed amount and although
respondent took issue with the accuracy of petitioner’s summation of its accountabilities, the
amount thereof was readily determinable from the receipts, invoices and other documents.
Thus, the claim was well within the COA’s jurisdiction under the Government Auditing Code of
the Philippines. (Province of Aklan v. Jody King Construction and Development Corp., G.R.
Nos. 197592 & 20262, November 27, 2013)

When money claims need not be filed first with COA: Money claims against
the government need not be filed with COA first, and may be filed directly with the
courts directly, if the case falls under any of the exceptions to the rule on
exhaustion of administrative remedies, such as when there is unreasonable delay or
official inaction that will irretrievably prejudice the complainant, or where the
question involved is purely legal.

Firstly, petitioners claim that the Complaint filed by respondent before the Regional
Trial Court was done without exhausting administrative remedies. Petitioners aver that
respondent should have first filed a claim before the Commission on Audit (COA) before going
to the courts. However, it has been established that the doctrine of exhaustion of administrative
remedies and the doctrine of primary jurisdiction are not ironclad rules. In Republic of the
Philippines v. Lacap, this Court enumerated the numerous exceptions to these rules, namely:
(a) where there is estoppel on the part of the party invoking the doctrine; (b) where the
challenged administrative act is patently illegal, amounting to lack of jurisdiction; (c) where
there is unreasonable delay or official inaction that will irretrievably prejudice the complainant;

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(d) where the amount involved is relatively so small as to make the rule impractical and
oppressive; (e) where the question involved is purely legal and will ultimately have to be decided
by the courts of justice; (f) where judicial intervention is urgent; (g) where the application of the
doctrine may cause great and irreparable damage; (h) where the controverted acts violate due
process; (i) where the issue of non-exhaustion of administrative remedies has been rendered
moot; (j) where there is no other plain, speedy and adequate remedy; (k) where strong public
interest is involved; and (l) in quo warranto proceedings. In the present case, conditions (c) and
(e) are present.

The government project contracted out to respondent was completed almost two decades
ago. To delay the proceedings by remanding the case to the relevant government office or agency
will definitely prejudice respondent. More importantly, the issues in the present case involve the
validity and the enforceability of the Contract of Agreement entered into by the parties. These
are questions purely of law and clearly beyond the expertise of the Commission on Audit or the
DPWH. x x x

xxx

The government project involved in this case, the construction of a dike, was completed
way back on 9 July 1992. For almost two decades, the public and the government benefitted
from the work done by respondent. Thus, the Court of Appeals was correct in applying Eslao to
the present case. In Eslao, this Court stated:
...the Court finds that the contractor should be duly compensated for services rendered,
which were for the benefit of the general public. To deny the payment to the
contractor of the two buildings which are almost fully completed and
presently occupied by the university would be to allow the government to
unjustly enrich itself at the expense of another. Justice and equity demand
compensation on the basis of quantum meruit. (Emphasis supplied.)

(Vigilar v. Aquino, G.R. No. 180388, January 18, 2011)

THE OMBUDSMAN
The independence of the Ombudsman has the following aspects: 1) It is
created by the Constitution and cannot be abolished by Congress; 2) it has fiscal
autonomy; and 3) it is insulated from executive supervision and control.

[T]he concept of Ombudsman’s independence covers three (3) things:

First: creation by the Constitution, which means that the office cannot be
abolished, nor its constitutionally specified functions and privileges, be removed, altered, or
modified by law, unless the Constitution itself allows, or an amendment thereto is made;

Second: fiscal autonomy, which means that the office “may not be obstructed from
[its] freedom to use or dispose of [its] funds for purposes germane to [its] functions; hence, its
budget cannot be strategically decreased by officials of the political branches of government so
as to impair said functions; and

Third: insulation from executive supervision and control, which means that
those within the ranks of the office can only be disciplined by an internal authority.

Evidently, all three aspects of independence intend to protect the Office of the
Ombudsman from political harassment and pressure, so as to free it from the “insidious
tentacles of politics.”

That being the case, the concept of Ombudsman independence cannot be invoked as
basis to insulate the Ombudsman from judicial power constitutionally vested unto the courts.
(Carpio-Morales v. Court of Appeals, G.R. Nos. 217126-27, November 10, 2015)

The Office of the Ombudsman is envisioned to be the "protector of the

people" against the inept, abusive, and corrupt in the Government, to function
essentially as a complaints and action bureau. The Ombudsman’s broad
investigative and disciplinary powers include all acts of malfeasance, misfeasance,
and nonfeasance of all public officials, including Members of the Cabinet and key
Executive officers, during their tenure.
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 Prior to the 1973 Constitution, past presidents established several Ombudsman-like
agencies to serve as the people's medium for airing grievances and for direct redress against
abuses and misconduct in the government. xxx

It was under the 1973 Constitution that the Office of the Ombudsman became a
constitutionally-mandated office to give it political independence and adequate powers to
enforce its mandate. xxx

With the advent of the 1987 Constitution, a new Office of the Ombudsman was created
by constitutional fiat. Unlike in the 1973 Constitution, its independence was expressly and
constitutionally guaranteed. Its objectives are to enforce the state policy in Section 27, Article II
and the standard of accountability in public service under Section 1, Article XI of the 1987
Constitution. These provisions read:

Section 27. The State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruption.

Section 1. Public office is a public trust. Public officers and employees

must, at all times, be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency; act with patriotism and justice,
and lead modest lives.

Under Section 12, Article XI of the 1987 Constitution, the Office of the Ombudsman is
envisioned to be the "protector of the people" against the inept, abusive, and corrupt in the
Government, to function essentially as a complaints and action bureau. This constitutional
vision of a Philippine Ombudsman practically intends to make the Ombudsman an authority to
directly check and guard against the ills, abuses and excesses of the bureaucracy. Pursuant to
Section 13(8), Article XI of the 1987 Constitution, Congress enacted RA No. 6770 to enable it to
further realize the vision of the Constitution. Section 21 of RA No. 6770 provides:

Section 21. Official Subject to Disciplinary Authority; Exceptions. — The

Office of the Ombudsman shall have disciplinary authority over all elective and
appointive officials of the Government and its subdivisions, instrumentalities and
agencies, including Members of the Cabinet, local government, government-
owned or controlled corporations and their subsidiaries, except over officials who
may be removed only by impeachment or over Members of Congress, and the
Judiciary. [emphasis ours, italics supplied]

As the Ombudsman is expected to be an "activist watchman," the Court has upheld its
actions, although not squarely falling under the broad powers granted it by the Constitution and
by RA No. 6770, if these actions are reasonably in line with its official function and consistent
with the law and the Constitution.

The Ombudsman’s broad investigative and disciplinary powers include all acts of
malfeasance, misfeasance, and nonfeasance of all public officials, including Members of the
Cabinet and key Executive officers, during their tenure. To support these broad powers, the
Constitution saw it fit to insulate the Office of the Ombudsman from the pressures and influence
of officialdom and partisan politics and from fear of external reprisal by making it an
"independent" office. Section 5,

Article XI of the Constitution expressed this intent, as follows:

Section 5. There is hereby created the independent Office of the

Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one
overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A
separate Deputy for the military establishment may likewise be appointed.
[emphasis ours]

Given the scope of its disciplinary authority, the Office of the Ombudsman is a very
powerful government constitutional agency that is considered "a notch above other grievance-
handling investigative bodies." It has powers, both constitutional and statutory, that are
commensurate with its daunting task of enforcing accountability of public officers. (Gonzales v.
Office of the President, G.R. No. 196231, January 28, 2014)

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 The independence enjoyed by the Office of the Ombudsman and by the
Constitutional Commissions shares certain characteristics – they do not owe their
existence to any act of Congress, but are created by the Constitution itself;
additionally, they all enjoy fiscal autonomy. They are not under the control of the
President, even if they discharge functions that are executive in nature. The framers
of the Constitution intended that these "independent" bodies be insulated from
political pressure to the extent that the absence of "independence" would result in
the impairment of their core functions.

Under the Constitution, several constitutional bodies have been expressly labeled as
"independent."4 The extent of the independence enjoyed by these constitutional bodies however
varies and is to be interpreted with two significant considerations in mind: first, the functions
performed or the powers involved in a given case; and second, consistency of any allowable
interference to these powers and functions, with the principle of checks and balances.

Notably, the independence enjoyed by the Office of the Ombudsman and by the
Constitutional Commissions shares certain characteristics – they do not owe their existence to
any act of Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal
autonomy. In general terms, the framers of the Constitution intended that these "independent"
bodies be insulated from political pressure to the extent that the absence of "independence"
would result in the impairment of their core functions.

xxx
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the
independence and flexibility needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the independent constitutional offices
allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy
and violative not only the express mandate of the Constitution but especially as regards the
Supreme Court, of the independence and separation of powers upon which the entire fabric of
our constitutional system is based.

The constitutional deliberations explain the Constitutional Commissions’ need for

independence. xxx

In Brillantes, Jr. v. Yorac, we emphasized that the Constitutional Commissions, which

have been characterized under the Constitution as "independent," are not under the control of
the President, even if they discharge functions that are executive in nature. The Court declared
as unconstitutional the President’s act of temporarily appointing the respondent in that case as
Acting Chairman of the Comelec "however well-meaning" it might have been.

In Bautista v. Senator Salonga, the Court categorically stated that the tenure of the
commissioners of the independent Commission on Human Rights could not be placed under the
discretionary power of the President:

xxx

The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be
inferior – but is similar in degree and kind – to the independence similarly guaranteed by the
Constitution to the Constitutional Commissions since all these offices fill the political interstices
of a republican democracy that are crucial to its existence and proper functioning. (Gonzales v.
Office of the President, G.R. No. 196231, January 28, 2014)

Section 8(2) of RA No. 6770 vesting disciplinary authority in the President

over the Deputy Ombudsman violates the independence of the Office of the
Ombudsman and is thus unconstitutional. Subjecting the Deputy Ombudsman to
discipline and removal by the President, whose own alter egos and officials in the
Executive Department are subject to the Ombudsman’s disciplinary authority,
cannot but seriously place at risk the independence of the Office of the Ombudsman
itself. The law directly collided not only with the independence that the
Constitution guarantees to the Office of the Ombudsman, but inevitably with the
principle of checks and balances that the creation of an Ombudsman office seeks to
revitalize.

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 c. Section 8(2) of RA No. 6770 vesting disciplinary authority in the President over the
Deputy Ombudsman violates the independence of the Office of the Ombudsman and is thus
unconstitutional

Our discussions, particularly the Court’s expressed caution against presidential

interference with the constitutional commissions, on one hand, and those expressed by the
framers of the 1987 Constitution, on the other, in protecting the independence of the
Constitutional Commissions, speak for themselves as overwhelming reasons to invalidate
Section 8(2) of RA No. 6770 for violating the independence of the Office of the Ombudsman.

In more concrete terms, we rule that subjecting the Deputy Ombudsman to discipline
and removal by the President, whose own alter egos and officials in the Executive Department
are subject to the Ombudsman’s disciplinary authority, cannot but seriously place at risk the
independence of the Office of the Ombudsman itself. The Office of the Ombudsman, by express
constitutional mandate, includes its key officials, all of them tasked to support the Ombudsman
in carrying out her mandate. Unfortunately, intrusion upon the constitutionally-granted
independence is what Section 8(2) of RA No. 6770 exactly did. By so doing, the law directly
collided not only with the independence that the Constitution guarantees to the Office of the
Ombudsman, but inevitably with the principle of checks and balances that the creation of an
Ombudsman office seeks to revitalize.

What is true for the Ombudsman must be equally and necessarily true for her Deputies
who act as agents of the Ombudsman in the performance of their duties. The Ombudsman can
hardly be expected to place her complete trust in her subordinate officials who are not as
independent as she is, if only because they are subject to pressures and controls external to her
Office. This need for complete trust is true in an ideal setting and truer still in a young
democracy like the Philippines where graft and corruption is still a major problem for the
government. For these reasons, Section 8(2) of RA No. 6770 (providing that the President may
remove a Deputy Ombudsman) should be declared void.

The deliberations of the Constitutional Commission on the independence of the

Ombudsman fully support this position. (Gonzales v. Office of the President, G.R. No. 196231,
January 28, 2014)

THE NATIONAL ECONOMY

Service contracts: The Constitutional requirements for a valid service contract
for the large-scale exploration and development of minerals, petroleum and other
mineral oils are the following: 1) the service contract shall be crafted in accordance
with a general law that will set standard or uniform terms, conditions; 2) the
President shall be the signatory for the government; and 3) within 30 days, the
President shall report it to Congress

Petitioners maintain that [Service Contract]-46 [which allowed the exploration,

development, and exploitation of petroleum resources within Tañon Strait, a narrow passage of
water situated between the islands of Negros and Cebu] transgresses the Jura Regalia Provision
or paragraph 1, Section 2, Article XII of the 1987 Constitution because [Japan Petroleum
Exploration Co., (JAPEX)] is 100% Japanese-owned. Furthermore, the FIDEC asserts that SC-
46 cannot be considered as a technical and financial assistance agreement validly executed
under paragraph 4 of the same provision. x x x

The petitioners insist that SC-46 is null and void for having violated Section 2, Article XII
of the 1987 Constitution, which reads as follows:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and
other natural resources are owned by the State. With the exception of agricultural lands, all other
natural resources shall not be alienated. The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the State. The State may directly
undertake such activities, or it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose
capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five
years, renewable for not more than twenty-five years, and under such terms and conditions as may be
provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other
than the development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea,
and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The

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 Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays,
and lagoons.

The President may enter into agreements with foreign-owned corporations involving either
technical or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical
resources.

The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution. (Emphases ours.)

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. x x x

xxx

[T]he 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 contracts, 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 and avoid the possible insertion of terms disadvantageous to the
country.

(2) The President shall be the signatory for 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. (Resident Marine
Mammals of the Protected Seascape of Tañon Strait v. Secretary Reyes, G.R. No. 180771, April
21, 2015)

Hydropower generation by foreign entities is not constitutionally proscribed.

Waters are "natural resources" within the meaning of Section 2 Article XII of the
present Constitution, hence, the exploitation, development and utilization of waters
should be limited to Filipino citizens or corporations or associations at least sixty per
centum of the capital of which is owned by Filipino citizens. However, utilization of
waters can be opened even to foreign nationals, after the same have been extracted
from the source by qualified persons or entities. The process of generating electric
power from the dam water entering the power plant does not constitute
appropriation of natural resource. There is no legal impediment to foreign-owned
companies undertaking the generation of electric power using waters already
appropriated by qualified persons or entities, such as NPC.

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 Sec. 2, Art. XII of the 1987 Constitution provides in part:
SEC.2. All lands of the public domain, waters, minerals, coal, petroleum, and
other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora
and fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full
control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least sixty per centum
of whose capital is owned by such citizens. x x x

xxx (Emphasis supplied.)

xxx

[T]he law [P.D. No. 1067] limits the grant of water rights only to Filipino citizens and
juridical entities duly qualified by law to exploit and develop water resources, including private
corporations with sixty percent of their capital owned by Filipinos. In the case of Angat River,
the NWRB has issued separate water permits to MWSS, NPC and NIA.

Under the EPIRA, the generation of electric power, a business affected with public
interest, was opened to private sector and any new generation company is required to secure a
certificate of compliance from the Energy Regulatory Commission (ERC), as well as health,
safety and environmental clearances from the concerned government agencies. Power
generation shall not be considered a public utility operation, and hence no franchise is
necessary. Foreign investors are likewise allowed entry into the electric power industry.
However, there is no mention of water rights in the privatization of multi-purpose hydropower
facilities. x x x

xxx

In accordance with the foregoing implementing regulations, and in furtherance of the

Asset Purchase Agreement (APA), PSALM, NPC and K-Water executed on April 28, 2010 an
Operations and Maintenance Agreement (O & M Agreement) for the administration,
rehabilitation, operation, preservation and maintenance, by K-Water as the eventual owner of
the AHEPP [Angat Hydro Electric Power Plant], of the Non-Power Components meaning the
Angat Dam, non-power equipment, facilities, installations, and appurtenant devices and
structures, including the water sourced from the Angat Reservoir.

It is the position of PSALM that x x x [t]his process of generating electric power from the
dam water entering the power plant thus does not constitute appropriation within the meaning
of natural resource utilization in the Constitution and the Water Code.

xxx

Foreign ownership of a hydropower facility is not prohibited under existing laws. The
construction, rehabilitation and development of hydropower plants are among those
infrastructure projects which even wholly-owned foreign corporations are allowed to undertake
under the Amended Build-Operate-Transfer (Amended BOT) Law (R.A. No. 7718).

xxx

With respect to foreign investors, the nationality issue had been framed in terms of the
character or nature of the power generation process itself, i.e., whether the activity amounts to
utilization of natural resources within the meaning of Sec. 2, Art. XII of the Constitution. If so,
then foreign companies cannot engage in hydropower generation business; but if not, then
government may legally allow even foreign-owned companies to operate hydropower facilities.

The DOJ has consistently regarded hydropower generation by foreign entities as not
constitutionally proscribed based on the definition of water appropriation under the Water
Code, thus:

xxx

Sustaining the position of PSALM, then Secretary Raul M. Gonzalez opined:

xxx

Applied to the instant case, and construed in relation to the earlier-

mentioned constitutional inhibition, it would appear clear that while both
waters and geothermal steam are, undoubtedly "natural resources",
86 | P a g e
 within the meaning of Section 2 Article XII of the present
Constitution, hence, their exploitation, development and utilization should be
limited to Filipino citizens or corporations or associations at least sixty per
centum of the capital of which is owned by Filipino citizens, the utilization
thereof can be opened even to foreign nationals, after the same have
been extracted from the source by qualified persons or entities. The
rationale is because, since they no longer form part of the natural resources of the
country, they become subject to ordinary commerce.

xxx

The fact that under the proposal, the non-power components and
structures shall be retained and maintained by the government
entities concerned is, to us, not only a sufficient compliance of
constitutional requirement of "full control and supervision of the
State" in the exploitation, development and utilization of natural resources. It is
also an enough safeguard against the evil sought to be avoided by the
constitutional reservation x x x. (Italics in the original, emphasis supplied.)

xxx

Under the Water Code concept of appropriation, a foreign company may not be said to
be "appropriating" our natural resources if it utilizes the waters collected in the dam and
converts the same into electricity through artificial devices. Since the NPC remains in control of
the operation of the dam by virtue of water rights granted to it, as determined under DOJ
Opinion No. 122, s. 1998, there is no legal impediment to foreign-owned companies undertaking
the generation of electric power using waters already appropriated by NPC, the holder of water
permit. Such was the situation of hydropower projects under the BOT contractual arrangements
whereby foreign investors are allowed to finance or undertake construction and rehabilitation of
infrastructure projects and/or own and operate the facility constructed. However, in case the
facility requires a public utility franchise, the facility operator must be a Filipino corporation or
at least 60% owned by Filipino.

xxx

Lease or transfer of water rights is allowed under the Water Code, subject to the approval
of NWRB after due notice and hearing. However, lessees or transferees of such water rights
must comply with the citizenship requirement imposed by the Water Code and its IRR. x x x

xxx

x x x [T]he Water Code explicitly provides that Filipino citizens and juridical persons
who may apply for water permits should be "duly qualified by law to exploit and develop water
resources."

xxx

In fine, the Court rules that while the sale of AHEPP to a foreign corporation pursuant to
the privatization mandated by the EPIRA did not violate Sec. 2, Art. XII of the 1987 Constitution
which limits the exploration, development and utilization of natural resources under the full
supervision and control of the State or the State’s undertaking the same through joint venture,
co-production or production sharing agreements with Filipino corporations 60% of the capital
of which is owned by Filipino citizens, the stipulation in the Asset Purchase Agreement and
Operations and Maintenance Agreement whereby NPC consents to the transfer of water rights
to the foreign buyer, K-Water, contravenes the aforesaid constitutional provision and the Water
Code. (Initiatives For Dialogue And Empowerment Through Alternative Legal Services, Inc. v.
Power Sector Assets and Liabilities Management Corporation, G.R. No. 192088, October 9,
2012)

STATE IMMUNITY FROM SUIT

An unincorporated agency without any separate juridical personality of its
own enjoys immunity from suit. The State will be deemed to have impliedly waived
its non-suability only if it has entered into a contract in its proprietary or private
capacity. Contracts for the construction of public roads that the DPWH enter into are
done in the exercise of its governmental functions, hence, there is no implied waiver
by the DPWH simply by entering into such contract.

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 The doctrine of immunity from suit is anchored on Section 3, Article XVI of the 1987
Constitution which provides:

Section 3. The State may not be sued without its consent.

The general rule is that a state may not be sued, but it may be the subject of a suit if it
consents to be sued, either expressly or impliedly. There is express consent when a law so
provides, while there is implied consent when the State enters into a contract or it itself
commences litigation. This Court explained that in order to determine implied waiver when the
State or its agency entered into a contract, there is a need to distinguish whether the contract
was entered into in its governmental or proprietary capacity, thus:

x x x. However, it must be clarified that when a state enters into a contract, it does
not automatically mean that it has waived its nonsuability. The State "will be deemed to
have impliedly waived its nonsuability [only] if it has entered into a contract in its
proprietary or private capacity. [However,] when the contract involves its sovereign or
governmental capacity[,] x x x no such waiver may be implied." Statutory provisions
waiving [s]tate immunity are construed in strictissimi juris. For, waiver of immunity is in
derogation of sovereignty.

In Air Transportation Office v. Ramos, the Court expounded:

An unincorporated agency without any separate juridical personality of its own

enjoys immunity from suit because it is invested with an inherent power of sovereignty. x x
x. However, the need to distinguish between an unincorporated government agency
performing governmental function and one performing proprietary functions has arisen.
The immunity has been upheld in favor of the former because its function is governmental
or incidental to such function; it has not been upheld in favor of the latter whose function
was not in pursuit of a necessary function of government but was essentially a business.

Having made this distinction, we reiterate that the DPWH is an unincorporated

government agency without any separate juridical personality of its own and it enjoys immunity
from suit. x x x

xxx

It is clear from the enumeration of its functions [under EO 710 series of 1981; and EO
124 series of 1987] that the DPWH performs governmental functions. x x x

The contracts that the DPWH entered into with Mendoza for the construction of
Packages VI and IX of the HADP were done in the exercise of its governmental functions. Hence,
petitioners cannot claim that there was an implied waiver by the DPWH simply by entering into
a contract. Thus, the Court of Appeals correctly ruled that the DPWH enjoys immunity from suit
and may not be sued without its consent. (Mendoza v. Department of Public Works and
Highways, G.R. No. 203834, July 9, 2014)

An unincorporated government agency without any separate juridical

personality of its own enjoys immunity from suit. However, if an unincorporated
government agency performs proprietary, private or non-governmental functions, it
is not immune from suit. The ATO was involved in the management and
maintenance of the Loakan Airport, which are primarily private or non-
governmental functions. Hence, the ATO has no claim to immunity from suit.

The immunity of the State from suit, known also as the doctrine of sovereign immunity
or non-suability of the State, is expressly provided in Article XVI of the 1987 Constitution, viz:

Section 3. The State may not be sued without its consent.

The immunity from suit is based on the political truism that the State, as a sovereign, can
do no wrong. Moreover, as the eminent Justice Holmes said in Kawananakoa v. Polyblank:

x x x 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. x x x

Practical considerations dictate the establishment of an immunity from suit in

favor of the State. Otherwise, and the State is suable at the instance of every other

88 | P a g e
 individual, government service may be severely obstructed and public safety endangered
because of the number of suits that the State has to defend against. x x x

An unincorporated government agency without any separate juridical personality of its

own enjoys immunity from suit because it is invested with an inherent power of sovereignty.
Accordingly, a claim for damages against the agency cannot prosper; otherwise, the doctrine of
sovereign immunity is violated. However, the need to distinguish between an unincorporated
government agency performing governmental function and one performing proprietary
functions has arisen. The immunity has been upheld in favor of the former because its function
is governmental or incidental to such function; it has not been upheld in favor of the latter
whose function was not in pursuit of a necessary function of government but was essentially a
business.

Should the doctrine of sovereignty immunity or non-suability of the State be extended to

the ATO?

xxx

[I]n the much later case of Civil Aeronautics Administration vs. Court of Appeals (167
SCRA 28 [1988]), the Supreme Court, reiterating the pronouncements laid down in Teodoro,
declared that the CAA (predecessor of ATO) is an agency not immune from suit, it being
engaged in functions pertaining to a private entity. It went on to explain in this wise:

xxx

The Civil Aeronautics Administration comes under the category of a private entity.
Although not a body corporate it was created, like the National Airports Corporation, not to
maintain a necessary function of government, but to run what is essentially a business, even if
revenues be not its prime objective but rather the promotion of travel and the convenience of the
travelling public. It is engaged in an enterprise which, far from being the exclusive prerogative of
state, may, more than the construction of public roads, be undertaken by private concerns. [National
Airports Corp. v. Teodoro, supra, p. 207.]

xxx

From the foregoing, it can be seen that the CAA is tasked with private or non-governmental
functions which operate to remove it from the purview of the rule on State immunity from suit. For
the correct rule as set forth in the Teodoro case states:

xxx

Not all government entities, whether corporate or non-corporate, are immune from suits.
Immunity from suits is determined by the character of the objects for which the entity was
organized. The rule is thus stated in Corpus Juris:

Suits against State agencies with relation to matters in which they have assumed to act in
private or non-governmental capacity, and various suits against certain corporations created by the
state for public purposes, but to engage in matters partaking more of the nature of ordinary business
rather than functions of a governmental or political character, are not regarded as suits against the
state. The latter is true, although the state may own stock or property of such a corporation for by
engaging in business operations through a corporation, the state divests itself so far of its sovereign
character, and by implication consents to suits against the corporation. (59 C.J., 313) [National
Airports Corporation v. Teodoro, supra, pp. 206-207; Italics supplied.]

This doctrine has been reaffirmed in the recent case of Malong v. Philippine National
Railways [G.R. No. L-49930, August 7, 1985, 138 SCRA 63], where it was held that the Philippine
National Railways, although owned and operated by the government, was not immune from suit as it
does not exercise sovereign but purely proprietary and business functions. Accordingly, as the CAA
was created to undertake the management of airport operations which primarily involve proprietary
functions, it cannot avail of the immunity from suit accorded to government agencies performing
strictly governmental functions.

In our view, the CA thereby correctly appreciated the juridical character of the ATO as an
agency of the Government not performing a purely governmental or sovereign function, but was
instead involved in the management and maintenance of the Loakan Airport, an activity that
was not the exclusive prerogative of the State in its sovereign capacity. Hence, the ATO had no
claim to the State’s immunity from suit. xxx

xxx

Lastly, the issue of whether or not the ATO could be sued without the State’s consent has
been rendered moot by the passage of Republic Act No. 9497, otherwise known as the Civil
Aviation Authority Act of 2008.

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 R.A. No. 9497 abolished the ATO. x x x

Under its Transitory Provisions, R.A. No. 9497 established in place of the ATO the Civil
Aviation Authority of the Philippines (CAAP), which thereby assumed all of the ATO’s powers,
duties and rights, assets, real and personal properties, funds, and revenues, x x x.

Section 23 of R.A. No. 9497 enumerates the corporate powers vested in the CAAP,
including the power to sue and be sued x x x. (Air Transportation Office v. Spouses Ramos, G.R.
No. 159402, February 23, 2011)

The doctrine of sovereign immunity cannot be invoked to defeat a valid claim

for compensation arising from a taking without just compensation. The doctrine of
sovereign immunity is not an instrument for perpetrating any injustice on a citizen.

[T]he doctrine of sovereign immunity cannot be successfully invoked to defeat a valid

claim for compensation arising from the taking without just compensation and without the
proper expropriation proceedings being first resorted to of the plaintiffs’ property. xxxx The
Supreme Court ruled that the doctrine of sovereign immunity was not an instrument for
perpetrating any injustice on a citizen. In exercising the right of eminent domain, the Court
explained, the State exercised its jus imperii, as distinguished from its proprietary rights, or jus
gestionis; yet, even in that area, where private property had been taken in expropriation without
just compensation being paid, the defense of immunity from suit could not be set up by the State
against an action for payment by the owners. (Air Transportation Office v. Spouses Ramos,
G.R. No. 159402, February 23, 2011)

The Bureau of Customs may be sued and held liable for the loss of imported
goods due to BOC's ineptitude and gross negligence. Justice and equity demand that
the State's cloak of invincibility against suit and liability be shredded.

On the issue regarding the state immunity doctrine, the Commissioner cannot escape
liability for the lost shipment of goods. This was clearly discussed in the UNIMEX Micro-
Electronics GmBH decision, where the Court wrote:

Finally, petitioner argues that a money judgment or any charge against the
government requires a corresponding appropriation and cannot be decreed by mere
judicial order.

Although it may be gainsaid that the satisfaction of respondent's demand will

ultimately fall on the government, and that, under the political doctrine of "state
immunity," it cannot be held liable for governmental acts (jus imperii), we still hold that
petitioner cannot escape its liability. The circumstances of this case warrant its exclusion
from the purview of the state immunity doctrine.

As previously discussed, the Court cannot turn a blind eye to BOC's ineptitude and
gross negligence in the safekeeping of respondent's goods. We are not likewise unaware of
its lackadaisical attitude in failing to provide a cogent explanation on the goods'
disappearance, considering that they were in its custody and that they were in fact the
subject of litigation. The situation does not allow us to reject respondent's claim on the
mere invocation of the doctrine of state immunity. Succinctly, the doctrine must be fairly
observed and the State should not avail itself of this prerogative to take undue advantage of
parties that may have legitimate claims against it.

In Department of Health v. C.V. Canchela & Associates, we enunciated that this

Court, as the staunch guardian of the people's rights and welfare, cannot sanction an
injustice so patent in its face, and allow itself to be an instrument in the perpetration
thereof. x x x Justice and equity now demand that the State's cloak of invincibility against
suit and liability be shredded.

Accordingly, we agree with the lower courts' directive that, upon payment of the
necessary customs duties by respondent, petitioner's "payment shall be taken from the sale
or sales of goods or properties seized or forfeited by the Bureau of Customs."

xxx

In line with the ruling in UNIMEX Micro-Electronics GmBH, the Commissioner of

Customs should pay AGFHA the value of the subject lost shipment in the amount of

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US$160,348.08 x x x. (Commissioner of Customs v. AGFHA Inc., G.R. No. 187425, March 28,
2011)

The DPWH can be sued and held liable to pay for a project that was already
completed decades ago. The doctrine of governmental immunity from suit cannot
serve as an instrument for perpetrating an injustice to a citizen.

The government project involved in this case, the construction of a dike, was completed
way back on 9 July 1992. x x x

xxx

Neither can petitioners escape the obligation to compensate respondent for services
rendered and work done by invoking the state’s immunity from suit. This Court has long
established in Ministerio v. CFI of Cebu, and recently reiterated in Heirs of Pidacan v. ATO, that
the doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating
an injustice to a citizen. As this Court enunciated in EPG Construction:

To our mind, it would be the apex of injustice and highly inequitable to defeat
respondent’s 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 the project and reaped the fruits of respondent’s honest toil and labor.

xxx xxx xxx

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 circumstance.

xxx xxx

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 x x x 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.

(Vigilar v. Aquino, G.R. No. 180388, January 18, 2011)

CITIZENSHIP IN GENERAL
As a matter of law, foundlings are natural-born citizens.

As a matter of law, foundlings are as a class, natural-born citizens. While the 1935
Constitution's enumeration is silent as to foundlings, there is no restrictive language which
would definitely exclude foundlings either. Because of silence and ambiguity in the enumeration
with respect to foundlings, there is a need to examine the intent of the framers. xxx

As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934
Constitutional Convention show that the framers intended foundlings to be covered by the
enumeration [of citizens]. xxx

xxx The policy is clear: it is to recognize foundlings, as a class, as Filipinos under Art. IV,
Section 1 (3) of the 1935 Constitution. This inclusive policy is carried over into the 1973 and 1987
Constitution. (Poe-Llamanzares v. Comelec, G.R. No. 221697, March 8, 2016)

91 | P a g e
 Foundlings are citizens under international law. International treaties
obligate the Philippines to grant nationality from birth and ensure that no child is
stateless. Moreover, the Philippines adopts the generally accepted principles of
international law" as part of the law of the land. Generally accepted principles of
international law are based not only on international custom, but also on "general
principles of law recognized by civilized nations." Under customary international
law, a child whose parents are both unknown shall have the nationality of the
country of birth, which is presumed to be where it was found. Also, under
customary international law, a foundling is presumed born of citizens of the country
where it is found.

Foundlings are likewise citizens under international law. Under the 1987 Constitution,
an international law can become part of the sphere of domestic law either by transformation or
incorporation. The transformation method requires that an international law be transformed
into a domestic law through a constitutional mechanism such as local legislation. On the other
hand, generally accepted principles of international law, by virtue of the incorporation clause of
the Constitution, form part of the laws of the land even if they do not derive from treaty
obligations. x x x Universal Declaration of Human Rights ("UDHR") has been interpreted by this
Court as part of the generally accepted principles of international law and binding on the State.
Article 15 thereof states:

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the
right to change his nationality.

The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC).
Article 7 of the UNCRC imposes the following obligations on our country:

Article 7
1. The child shall be registered immediately after birth and shall have the
right from birth to a name, the right to acquire a nationality and as far as
possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in
accordance with their national law and their obligations under the relevant
international instruments in this field, in particular where the child would
otherwise be stateless.

In 1986, the country also ratified the 1966 International Covenant on Civil and Political
Rights (ICCPR). Article 24 thereof provide for the right of every child "to acquire a nationality:"
Article 24
1. Every child shall have, without any discrimination as to race, colour,
sex, language, religion, national or social origin, property or birth, the right, to
such measures of protection as are required by his status as a minor, on the part
of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have
a name.
3. Every child has the right to acquire a nationality.

The common thread of the UDHR, UNCRC and ICCPR is to obligate the
Philippines to grant nationality from birth and ensure that no child is stateless.
This grant of nationality must be at the time of birth, and it cannot be accomplished by the
application of our present naturalization laws, Commonwealth Act No. 473, as amended, and
R.A. No. 9139, both of which require the applicant to be at least eighteen (18) years old.

The principles found in two conventions, while yet unratified by the Philippines, are
generally accepted principles of international law. The first is Article 14 of the 1930 Hague
Convention on Certain Questions Relating to the Conflict of Nationality Laws under which a
foundling is presumed to have the "nationality of the country of birth," to wit:
Article 14
A child whose parents are both unknown shall have the nationality of the
country of birth. If the child's parentage is established, its nationality shall be
determined by the rules applicable in cases where the parentage is known.
A foundling is, until the contrary is proved, presumed to have been born
on the territory of the State in which it was found. (Underlining supplied)

92 | P a g e
 The second is the principle that a foundling is presumed born of citizens of the country
where he is found, contained in Article 2 of the 1961 United Nations Convention on the
Reduction of Statelessness:
Article 2
A foundling found in the territory of a Contracting State shall, in the
absence of proof to the contrary, be considered to have been born within the
territory of parents possessing the nationality of that State.

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961
Convention on the Reduction of Statelessness does not mean that their principles are not
binding. While the Philippines is not a party to the 1930 Hague Convention, it is a signatory to
the Universal Declaration on Human Rights, Article 15(1) of which effectively affirms Article 14
of the 1930 Hague Convention. Article 2 of the 1961 "United Nations Convention on the
Reduction of Statelessness" merely "gives effect" to Article 15(1) of the UDHR. In Razon v.
Tagitis, this Court noted that the Philippines had not signed or ratified the "International
Convention for the Protection of All Persons from Enforced Disappearance." Yet, we ruled that
the proscription against enforced disappearances in the said convention was nonetheless
binding as a "generally accepted principle of international law." Razon v. Tagitis is likewise
notable for declaring the ban as a generally accepted principle of international law although the
convention had been ratified by only sixteen states and had not even come into force and which
needed the ratification of a minimum of twenty states. xxx

Our approach in Razon and Mijares effectively takes into account the fact that "generally
accepted principles of international law" are based not only on international custom, but also on
"general principles of law recognized by civilized nations," as the phrase is understood in Article
38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the policy against
discrimination, which are fundamental principles underlying the Bill of Rights and which are
"basic to legal systems generally," support the notion that the right against enforced
disappearances and the recognition of foreign judgments, were correctly considered as
"generally accepted principles of international law" under the incorporation clause.

Petitioner's evidence shows that at least sixty countries in Asia, North and South
America, and Europe have passed legislation recognizing foundlings as its citizen. xxx Also, the
Chief Justice, at the 2 February 2016 Oral Arguments pointed out that in 166 out of 189
countries surveyed (or 87.83%), foundlings are recognized as citizens. These circumstances,
including the practice of jus sanguinis countries, show that it is a generally accepted
principle of international law to presume foundlings as having been born of
nationals of the country in which the foundling is found.

Current legislation reveals the adherence of the Philippines to this generally accepted
principle of international law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court's Rules
on Adoption, expressly refer to "Filipino children." In all of them, foundlings are among the
Filipino children who could be adopted. Likewise, it has been pointed that the DFA issues
passports to foundlings. Passports are by law, issued only to citizens. This shows that even the
executive department, acting through the DFA, considers foundlings as Philippine citizens.

Adopting these legal principles from the 1930 Hague Convention and the 1961
Convention on Statelessness is rational and reasonable and consistent with the jus
sanguinis regime in our Constitution. The presumption of natural-born citizenship of
foundlings stems from the presumption that their parents are nationals of the
Philippines. (Poe-Llamanzares v. Comelec, G.R. No. 221697, March 8, 2016) (Emphases
supplied)

Election of citizenship: Children born under the 1935 Constitution of a Filipino

mother and an alien father who executed an affidavit of election of Philippine
citizenship and took their oath of allegiance to the government upon reaching the
age of majority, but failed to immediately file the documents of election with the
nearest civil registry – did not lose their right to elect Philippine citizenship. Their
registration of the documents of election should be allowed, if in the meanwhile
positive acts of citizenship have publicly, consistently, and continuously been done.

Should children born under the 1935 Constitution of a Filipino mother and an alien
father, who executed an affidavit of election of Philippine citizenship and took their oath of
allegiance to the government upon reaching the age of majority, but who failed to immediately
file the documents of election with the nearest civil registry, be considered foreign nationals

93 | P a g e
subject to deportation as undocumented aliens for failure to obtain alien certificates of
registration?

xxx

The 1935 Constitution declares as citizens of the Philippines those whose mothers are
citizens of the Philippines and elect Philippine citizenship upon reaching the age of majority. xxx

In 1941, Commonwealth Act No. 625 was enacted. It laid down the manner of electing
Philippine citizenship, to wit:
Section 1. The option to elect Philippine citizenship in accordance with
subsection (4), Section 1, Article IV, of the Constitution shall be expressed in a statement
to be signed and sworn to by the party concerned before any officer authorized to
administer oaths, and shall be filed with the nearest civil registry. The said party shall
accompany the aforesaid statement with the oath of allegiance to the Constitution and
the Government of the Philippines.

The statutory formalities of electing Philippine citizenship are: (1) a statement of

election under oath; (2) an oath of allegiance to the Constitution and Government of the
Philippines; and (3) registration of the statement of election and of the oath with the
nearest civil registry.

xxx

Petitioners complied with the first and second requirements upon reaching the age of
majority. It was only the registration of the documents of election with the civil registry that was
belatedly done.

We rule that under the facts peculiar to the petitioners, the right to elect Philippine
citizenship has not been lost and they should be allowed to complete the statutory requirements
for such election.

xxx

In Ching, it may be recalled that we denied his application for admission to the
Philippine Bar because, in his case, all the requirements, to wit: (1) a statement of election under
oath; (2) an oath of allegiance to the Constitution and Government of the Philippines; and (3)
registration of the statement of election and of the oath with the nearest civil registry were
complied with only fourteen (14) years after he reached the age of majority. Ching offered no
reason for the late election of Philippine citizenship.

xxx

We are not prepared to state that the mere exercise of suffrage, being elected public
official, continuous and uninterrupted stay in the Philippines, and other similar acts showing
exercise of Philippine citizenship can take the place of election of citizenship. What we now say
is that where, as in petitioners’ case, the election of citizenship has in fact been done and
documented within the constitutional and statutory timeframe, the registration of the
documents of election beyond the frame should be allowed if in the meanwhile positive acts of
citizenship have publicly, consistently, and continuously been done. The actual exercise of
Philippine citizenship, for over half a century by the herein petitioners, is actual notice to the
Philippine public which is equivalent to formal registration of the election of Philippine
citizenship.

xxx

Registration, then, is the confirmation of the existence of a fact. In the instant case,
registration is the confirmation of election as such election. It is not the registration of the act of
election, although a valid requirement under Commonwealth Act No. 625, that will confer
Philippine citizenship on the petitioners. It is only a means of confirming the fact that
citizenship has been claimed.

xxx

Notably, the petitioners timely took their oath of allegiance to the Philippines. This was a
serious undertaking. It was commitment and fidelity to the state coupled with a pledge "to
renounce absolutely and forever all allegiance" to any other state. This was unqualified
acceptance of their identity as a Filipino and the complete disavowal of any other nationality.

xxx

94 | P a g e
 Having a Filipino mother is permanent. It is the basis of the right of the petitioners to
elect Philippine citizenship. Petitioners elected Philippine citizenship in form and substance.
The failure to register the election in the civil registry should not defeat the election and
resultingly negate the permanent fact that they have a Filipino mother. The lacking
requirements may still be complied with subject to the imposition of appropriate administrative
penalties, if any. (Ma v. Fernandez, G.R. No. 183133, July 26, 2010)

Reacquisition of Philippine citizenship under RA 9225 for those who have lost
the same by naturalization before the effectivity of RA 9225 -- has no retroactive
effect. A former natural-born Filipino citizen re-acquires his Philippine citizenship
upon taking the oath of allegiance to the Republic.

While Section 2 [of RA 9225] declares the general policy that Filipinos who have become
citizens of another country shall be deemed "not to have lost their Philippine citizenship," such
is qualified by the phrase "under the conditions of this Act." Section 3 lays down such conditions
for two categories of natural-born Filipinos referred to in the first and second paragraphs.
Under the first paragraph are those natural-born Filipinos who have lost their citizenship by
naturalization in a foreign country who shall re-acquire their Philippine citizenship upon taking
the oath of allegiance to the Republic of the Philippines. The second paragraph covers those
natural-born Filipinos who became foreign citizens after R.A. 9225 took effect, who shall retain
their Philippine citizenship upon taking the same oath. The taking of oath of allegiance is
required for both categories of natural-born Filipino citizens who became citizens of a foreign
country, but the terminology used is different, "re-acquired" for the first group, and "retain" for
the second group.

The law thus makes a distinction between those natural-born Filipinos who became
foreign citizens before and after the effectivity of R.A. 9225. x x x

In fine, for those who were naturalized in a foreign country, they shall be deemed to have
re-acquired their Philippine citizenship which was lost pursuant to CA 63, under which
naturalization in a foreign country is one of the ways by which Philippine citizenship may be
lost. As its title declares, R.A. 9225 amends CA 63 by doing away with the provision in the old
law which takes away Philippine citizenship from natural-born Filipinos who become
naturalized citizens of other countries and allowing dual citizenship, and also provides for the
procedure for re-acquiring and retaining Philippine citizenship. In the case of those who became
foreign citizens after R.A. 9225 took effect, they shall retain Philippine citizenship despite
having acquired foreign citizenship provided they took the oath of allegiance under the new law.

Petitioner insists we should not distinguish between re-acquisition and retention in R.A.
9225. He asserts that in criminal cases, that interpretation of the law which favors the accused is
preferred because it is consistent with the constitutional presumption of innocence x x x.

These contentions have no merit.

That the law distinguishes between re-acquisition and retention of Philippine citizenship
was made clear in the discussion of the Bicameral Conference Committee on the Disagreeing
Provisions of House Bill No. 4720 and Senate Bill No. 2130 held on August 18, 2003 x x x.

Considering that petitioner was naturalized as a Canadian citizen prior to the effectivity
of R.A. 9225, he belongs to the first category of natural- born Filipinos under the first paragraph
of Section 3 who lost Philippine citizenship by naturalization in a foreign country. x x x

xxx

Petitioner made the untruthful statement in the MLA, a public document, that he is a
Filipino citizen at the time of the filing of said application, when in fact he was then still a
Canadian citizen. Under CA 63, the governing law at the time he was naturalized as Canadian
citizen, naturalization in a foreign country was among those ways by which a natural-born
citizen loses his Philippine citizenship. While he re-acquired Philippine citizenship under R.A.
9225 six months later, the falsification was already a consummated act, the said law having no
retroactive effect insofar as his dual citizenship status is concerned. (David v. Agbay, G.R. No.
199113, March 18, 2015)

95 | P a g e
 POLITICAL & INTERNATIONAL LAW

Selected Recent Jurisprudence (2010-December 2017)1

By Atty. Alexis F. Medina2

PART II:

CONSTITUTIONAL LAW

STATE POWERS AND

INDIVIDUAL RIGHTS AND LIBERTIES

STATE POWERS

POLICE POWER

Police power is the power of the state to promote public welfare by restraining
and regulating the use of liberty and property. It is in the exercise of its police power
that the Congress enacted R.A. Nos. 9257 and 9442, the laws mandating a 20%
discount on purchases of medicines made by senior citizens and PWDs. The 20%
discount is a regulation affecting the ability of private establishments to price their
products and services relative senior citizens. Unlike in the exercise of the power of
eminent domain, just compensation is not required in wielding police power. This is
precisely because there is no taking involved, but only an imposition of burden.

In Gerochi v. Department of Energy, the Court passed upon one of the inherent powers
of the state, the police power, where it emphasized, thus:

[P]olice power is the power of the state to promote public welfare by

restraining and regulating the use of liberty and property. It is the most pervasive,
the least limitable, and the most demanding of the three fundamental powers of
the State. The justification is found in the Latin maxim salus populi est suprema
lex (the welfare of the people is the supreme law) and sic utere tuo ut alienum non
laedas (so use your property as not to injure the property of others). As an inherent
attribute of sovereignty which virtually extends to all public needs, police power
grants a wide panoply of instruments through which the State, as parens
patriae, gives effect to a host of its regulatory powers. We have held that the power
to "regulate" means the power to protect, foster, promote, preserve, and control,
with due regard for the interests, first and foremost, of the public, then of the utility
and of its patrons. (Citations omitted)

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

2 AB Political Science, University of the Philippines (UP), Diliman; Order of the Purple Feather (OPF), UP, College of
Law; Valedictorian, San Sebastian College-Recoletos, Manila, College of Law; Philippine Representative to the World
Trade Organization (WTO) Trade Facilitation Preparatory Committee Meeting for Legal Review (Geneva, Switzerland,
2014); Philippine Representative, Senior Officials’ Meeting, Asia Pacific Economic Cooperation (APEC), 2015;
Transaction adviser on Public Private Partnerships (PPPS); Litigation lawyer; formerly with the Ponce Enrile Reyes &
Manlastas Law Offices (Pecabar); Professor of Constitutional Law, San Sebastian College-Recoletos, Manila, College of
Law, and Polytechnic University of the Philippines (PUP), Manila, College of Law; former professor of Constitutional
Law, New Ear University, College of Law, Quezon City; Partner, Libra Law
1|Page
 It is in the exercise of its police power that the Congress enacted R.A. Nos. 9257 and 9442,
the laws mandating a 20% discount on purchases of medicines made by senior citizens and PWDs.
It is also in further exercise of this power that the legislature opted that the said discount be
claimed as tax deduction, rather than tax credit, by covered establishments.

The petitioner, however, claims that the change in the tax treatment of the discount is
illegal as it constitutes taking without just compensation. It even submitted financial statements
for the years 2006 and 2007 to support its claim of declining profits when the change in the policy
was implemented.

The Court is not swayed.

To begin with, the issue of just compensation finds no relevance in the instant case as it
had already been made clear in Carlos Superdrug that the power being exercised by the State in
the imposition of senior citizen discount was its police power. Unlike in the exercise of the power
of eminent domain, just compensation is not required in wielding police power. This is precisely
because there is no taking involved, but only an imposition of burden.

In Manila Memorial Park, Inc., et al. v. Secretary of the DSWD, et al., the Court ruled
that by examining the nature and the effects of R.A. No. 9257, it becomes apparent that the
challenged governmental act was an exercise of police power. It was held, thus:

[W]e now look at the nature and effects of the 20% discount to determine
if it constitutes an exercise of police power or eminent domain.

The 20% discount is intended to improve the welfare of senior citizens who,
at their age, are less likely to be gainfully employed, more prone to illnesses and
other disabilities, and, thus, in need of subsidy in purchasing basic commodities.
It may not be amiss to mention also that the discount serves to honor senior
citizens who presumably spent the productive years of their lives on contributing
to the development and progress of the nation. This distinct cultural Filipino
practice of honoring the elderly is an integral part of this law.

As to its nature and effects, the 20% discount is a regulation affecting the
ability of private establishments to price their products and services relative to a
special class of individuals, senior citizens, for which the Constitution affords
preferential concern. xxxxx However, it does not purport to appropriate or burden
specific properties, used in the operation or conduct of the business of private
establishments, for the use or benefit of the public, or senior citizens for that
matter, but merely regulates the pricing of goods and services relative to, and the
amount of profits or income/gross sales that such private establishments may
derive from, senior citizens.

The subject regulation may be said to be similar to, but with substantial
distinctions from, price control or rate of 'return on investment control laws which
are traditionally regarded as police power measures. x x x. (Citations omitted)

(Southern Luzon Drug v. Department of Social Welfare and Development, G.R. No.
199669, April 25, 2017) (Underscoring supplied)

Requisites for the valid exercise of police power: (a) the interests of the public
generally, as distinguished from those of a particular class, require the interference
of the State; and (b) the means employed are reasonably necessary to the: attainment
of the object sought to be accomplished and not unduly oppressive upon individuals.
In other words, the proper exercise of the police power requires the concurrence of a
lawful subject and a lawful method.

In the exercise of police power, "property rights of private individuals are subjected to
restraints and burdens in order to secure the general comfort, health, and prosperity of the
State." Even then, the State's claim of police power cannot be arbitrary or unreasonable. xxxx To
warrant such interference, two requisites must concur: (a) the interests of the public generally, as
distinguished from those of a particular class, require the interference of the State; and (b) the
means employed are reasonably necessary to the: attainment of the object sought to be
accomplished and not unduly oppressive upon individuals. In other words, the proper exercise of
the police power requires the concurrence of a lawful subject and a lawful method. Xxx

2|Page
 xxx

The subjects of R.A. Nos. 9257 and 9442, i.e., senior citizens and PWDs, are individuals
whose well-being is a recognized public duty. As a public duty, the responsibility for their care
devolves upon the concerted efforts of the State, the family and the community.

xxxx

The Court also entertains no doubt on the legality of the method taken by the legislature
to implement the declared policies of the subject laws, that is, to impose discounts on the medical
services and purchases of senior citizens and PWDs and to treat the said discounts as tax
deduction rather than tax credit. (Southern Luzon Drug v. Department of Social Welfare and
Development, G.R. No. 199669, April 25, 2017)

Discounts for senior citizens: Not confiscatory as there is no taking of property

without just compensation. Five circumstances must be present in order to qualify
"taking" as an exercise of eminent domain. First, the expropriator must enter a
private property. Second, the entrance into private property must be for more than a
momentary period. Third, the entry into the property should be under warrant or
color of legal authority. Fourth, the property must be devoted to a public use or
otherwise informally appropriated or injuriously affected. Fifth, the utilization of the
property for public use must be in such a way as to oust the owner and deprive him
of all beneficial enjoyment of the property.

The measure is fair and reasonable and no credible proof was presented to prove the claim
that it was confiscatory. To be considered confiscatory, there must be taking of property without
just compensation.

Illuminating on this point is the discussion of the Court on the concept of taking in City of
Manila v. Hon. Laguio, Jr., viz.:

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.

xxxx

What is crucial in judicial consideration of regulatory takings is that

government regulation is a taking if it leaves no reasonable economically viable use
of property in a manner that interferes with reasonable expectations for use. A
regulation that permanently denies all economically beneficial or productive use
of land is, from the owner's point of view, equivalent to a "taking" unless principles
of nuisance or property law that existed when the owner acquired the land make
the use prohibitable. When the owner of real property has been called upon to
sacrifice all economically beneficial uses in the name of the common good, that is,
to leave his property economically idle, he has suffered a taking.

xxxx

A restriction on use of property may also constitute a "taking" if not

reasonably necessary to the effectuation of a substantial public purpose or if it has
an unduly harsh impact on the distinct investment-backed expectations of the
owner. (Citations omitted)

The petitioner herein attempts to prove its claim that the pertinent provisions of R.A. Nos.
9257 and 9442 amount to taking by presenting financial statements purportedly showing
financial losses incurred by them due to the adoption of the tax deduction scheme.

For the petitioner's clarification, the presentation of the financial statement is not of
compelling significance in justifying its claim for just compensation. What is imperative is for it
to establish that there was taking in the constitutional sense or that, in the imposition of the
mandatory discount, the power exercised by the state was eminent domain.

According to Republic of the Philippines v. Vda. de Castellvi, five circumstances must be

present in order to qualify "taking" as an exercise of eminent domain. First, the expropriator must
3|Page
enter a private property. Second, the entrance into private property must be for more than a
momentary period. Third, the entry into the property should be under warrant or color of legal
authority. Fourth, the property must be devoted to a public use or otherwise informally
appropriated or injuriously affected. Fifth, the utilization of the property for public use must be
in such a way as to oust the owner and deprive him of all beneficial enjoyment of the property.

The first requirement speaks of entry into a private property which clearly does not obtain
in this case. There is no private property that is; invaded or appropriated by the State. As it is, the
petitioner precipitately deemed future profits as private property and then proceeded to argue
that the State took it away without full compensation. This seemed preposterous considering that
the subject of what the petitioner supposed as taking was not even earned profits but merely an
expectation of profits, which may not even occur. For obvious reasons, there cannot be taking of
a contingency or of a mere possibility because it lacks physical existence that is necessary before
there could be any taking. Further, it is impossible to quantify the compensation for the loss of
supposed profits before it is earned.

The supposed taking also lacked the characteristics of permanence and consistency. xxxx
The reason is that the impact on the establishments varies depending on their response to the
changes brought about by the subject provisions. To be clear, establishments, are not prevented
from adjusting their prices to accommodate the effects of the granting of the discount and retain
their profitability while being fully compliant to the laws. It follows that losses are not inevitable
because establishments are free to take business measures to accommodate the contingency.
Lacking in permanence and consistency, there can be no taking in the constitutional sense. xxxx
Simply told, there is no taking to justify compensation; there is only poor business decision to
blame.

There is also no ousting of the owner or deprivation of ownership. Establishments are

neither divested of ownership of any of their properties nor is anything forcibly taken from them.
They remain the owner of their goods and their profit or loss still depends on the performance of
their sales.

Apart from the foregoing, covered establishments are also provided with a mechanism to
recoup the amount of discounts they grant the senior citizens and PWDs. It is provided in Section
4(a) of R.A. No. 9257 and Section 32 of R.A. No. 9442 that establishments may claim the discounts
as "tax deduction based on the net cost of the goods sold or services rendered." Basically, whatever
amount was given as discount, covered establishments may claim an equal amount as an expense
or tax deduction. xxx

xxx

The effect of the subject laws in the financial standing of covered companies depends
largely on how they respond and forge a balance between profitability and their sense of social
responsibility. (Southern Luzon Drug v. Department of Social Welfare and Development, G.R.
No. 199669, April 25, 2017)

The discounts to senior citizens imposed on private businesses is not

confiscatory. First, the subject provisions only affect the petitioner's right to profit,
and not earned profits. Unfortunately for the petitioner, the right to profit is not a
vested right but an inchoate right, a mere expectation, which may or may not come
into existence.

Still, the petitioner argues that the law is confiscatory in the sense that the State takes away
a portion of its supposed profits which could have gone into its coffers and utilizes it for public
purpose. The petitioner claims that the action of the State amounts to taking for which it should
be compensated.

To reiterate, the subject provisions only affect the petitioner's right to profit, and not
earned profits. Unfortunately for the petitioner, the right to profit is not a vested right or an
entitlement that has accrued on the person or entity such that its invasion or deprivation warrants
compensation. Vested rights are "fixed, unalterable, or irrevocable." xxx

Right to profits does not give the petitioner the cause of action to ask for just
compensation, it being only an inchoate right or one that has not fully developed and therefore
cannot be claimed as one's own. An inchoate right is a mere expectation, which may or may not
come into existence. xxxx Certainly, the petitioner cannot claim confiscation or taking of

4|Page
something that has yet to exist. It cannot claim deprivation of profit before the consummation of
a sale and the purchase by a senior citizen or PWD.

Right to profit is not an accrued right; it is not fixed, absolute nor indefeasible. It does not
come into being until the occurrence or realization of a condition precedent. It is a mere
"contingency that might never eventuate into a right. It stands for a mere possibility of profit but
nothing might ever be payable under it."

The inchoate nature of the right to profit precludes the possibility of compensation
because it lacks the quality or characteristic which is necessary before any act of taking or
expropriation can be effected. xxxx Certainly, "taking" presupposes the existence of a subject that
has a quantifiable or determinable value, characteristics which a mere contingency does not
possess. (Southern Luzon Drug v. Department of Social Welfare and Development, G.R. No.
199669, April 25, 2017)

The legislature, which is the constitutional repository of police power, is the

judge of necessity, adequacy or reasonableness and wisdom, of any law promulgated
in the exercise of the police power.

Anent the question regarding the shift from tax credit to tax deduction, suffice it is to say
that it is within the province of Congress to do so in the exercise of its legislative power. It has the
authority to choose the subject of legislation, outline the effective measures to achieve its declared
policies and even impose penalties in case of non-compliance. It has the sole discretion to decide
which policies to pursue and devise means to achieve them, and courts often do not interfere in
this exercise for as long as it does not transcend constitutional limitations. " xxxx

xxx

Corollary, whether to treat the discount as a tax deduction or tax credit is a matter
addressed to the wisdom of the legislature. Xxxx Thus, in lchong, etc., et al. v. Hernandez) etc.,
and Sarmiento, the Court emphasized, thus:

It must not be overlooked, in the first place, that the legislature, which is
the constitutional repository of police power and exercises the prerogative of
determining the policy of the State, is by force of circumstances primarily the
judge of necessity, adequacy or reasonableness and wisdom, of any law
promulgated in the exercise of the police power, or of the measures
adopted to implement the public policy or to achieve public interest.x x
x. (Emphasis ours)

(Southern Luzon Drug v. Department of Social Welfare and Development, G.R. No.
199669, April 25, 2017)

In the exercise of police power, the legislature may grant rights and impose
additional burdens. It may also regulate industries for the protection of the public.
The laws requiring businesses to grant discounts to senior citizens are akin to
regulatory laws within the ambit of police power such as the minimum wage law,
zoning ordinances, price control laws, laws regulating the operation of motels and
hotels, laws limiting the working hours to eight, and the like.

The legislature may also grant rights and impose additional burdens: It may also regulate
industries, in the exercise of police power, for the protection of the public. R.A. Nos. 9257 and
9442 are akin to regulatory laws, the issuance of which is within the ambit of police power. The
minimum wage law, zoning ordinances, price control laws, laws regulating the operation of motels
and hotels, laws limiting the working hours to eight, and the like fall under this category.

Indeed, regulatory laws are within the category of police power measures from which
affected persons or entities cannot claim exclusion or compensation. For instance, private
establishments cannot protest that the imposition of the minimum wage is confiscatory since it
eats up a considerable chunk of its profits or that the mandated remuneration is not
commensurate for the work done. The compulsory nature of the provision for minimum wages
underlies the effort of the State; as R.A. No. 6727 expresses it, to promote productivity-
improvement and gain-sharing measures to ensure a decent standard of living for the workers
and their families; to guarantee the rights of labor to its just share in the fruits of production;
xxxxx

5|Page
 Similarly, the imposition of price control on staple goods in R.A. No. 7581 is likewise a
valid exercise of police power and affected establishments cannot argue that the law was depriving
them of supposed gains. The law seeks to ensure the availability of basic necessities and prime
commodities at reasonable prices at all times without denying legitimate business a fair return on
investment. xxx

More relevantly, in Manila Memorial Park, Inc., it was ruled that it is within the bounds
of the police power of the state to impose burden on private entities, even if it may affect their
profits, such as in the imposition of price control measures. There is no compensable taking but
only a recognition of the fact that they are subject to the regulation of the State and that all
personal or private interests must bow down to the more paramount interest of the State.
(Southern Luzon Drug v. Department of Social Welfare and Development, G.R. No. 199669,
April 25, 2017)

Regulation does not authorize the destruction of business. A lawful business or

calling may not, under the guise of regulation, be unreasonably interfered with even
by the exercise of police power. After all, regulation only signifies control or restraint,
it does not mean suppression or absolute prohibition

This notwithstanding, the regulatory power of the State does not authorize the destruction
of the business. While a business may be regulated, such regulation must be within the bounds of
reason, i.e., the regulatory ordinance must be reasonable, and its provision cannot be oppressive
amounting to an arbitrary interference with the business or calling subject of regulation. A lawful
business or calling may not, under the guise of regulation, be unreasonably interfered with even
by the exercise of police power. After all, regulation only signifies control or restraint, it does not
mean suppression or absolute prohibition. xxx

Here, the petitioner failed to show that R.A. Nos. 9257 and 9442, under the guise of
regulation, allow undue interference in an otherwise legitimate business. On the contrary, it was
shown that the questioned laws do not meddle in the business or take anything from it but only
regulate its realization of profits. (Southern Luzon Drug v. Department of Social Welfare and
Development, G.R. No. 199669, April 25, 2017)

Property rights must bow to the primacy of police power because property
rights, though sheltered by due process, must yield to general welfare. The regulation
of a profession, calling, business or trade has always been upheld as a legitimate
exercise of police power.

Petitioners contend that the assailed provisions of R.A. No. 9646 are unduly oppressive
and infringe the constitutional rule against deprivation of property without due process of law.
They stress that real estate developers are now burdened by law to employ licensed real estate
brokers to sell, market and dispose of their properties. x x x

The contention has no basis. There is no deprivation of property as no restriction on their

use and enjoyment of property is caused by the implementation of R.A. No. 9646. xxx

Indeed, no right is absolute, and the proper regulation of a profession, calling, business or
trade has always been upheld as a legitimate subject of a valid exercise of the police power of the
State particularly when their conduct affects the execution of legitimate governmental functions,
the preservation of the State, public health and welfare and public morals. x x x [U]nder the
mantle of police power, of regulating entry to the practice of various trades or professions.

Here, the legislature recognized the importance of professionalizing the ranks of real
estate practitioners x x x.

We thus find R.A. No. 9646 a valid exercise of the State’s police power. x x x

x x x Police power x x x is "[t]he power vested in the legislature by the constitution to

make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and
ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge
to be for the good and welfare of the commonwealth, and of the subjects of the same."

For this reason, when the conditions so demand as determined by the legislature, property
rights must bow to the primacy of police power because property rights, though sheltered by due
process, must yield to general welfare. (Remman Enterprises v. Professional Regulatory Board
of Real Estate Service, G.R. No. 197676, February 4, 2014)
6|Page
 The rational relationship test for a valid exercise of police power: (1) the
interests of the public generally require its exercise and (2) the means employed are
reasonably necessary for the purpose and not unduly oppressive upon individuals.
Lacking these two requisites, the police power measure shall be struck down as an
arbitrary intrusion into private rights and a violation of the due process clause.

Ordinance No. 192 was passed by the City Council of Marikina in the apparent exercise of
its police power. To successfully invoke the exercise of police power as the rationale for the
enactment of an ordinance and to free it from the imputation of constitutional infirmity, two tests
have been used by the Court – the rational relationship test and the strict scrutiny test:

We ourselves have often applied the rational basis test mainly in analysis of equal
protection challenges. Using the rational basis examination, laws or ordinances are upheld if they
rationally further a legitimate governmental interest. Under intermediate review, governmental
interest is extensively examined and the availability of less restrictive measures is considered.
Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial,
governmental interest and on the absence of less restrictive means for achieving that interest.

Even without going to a discussion of the strict scrutiny test, Ordinance No. 192, series of
1994 must be struck down for not being reasonably necessary to accomplish the City’s purpose.
More importantly, it is oppressive of private rights.

Under the rational relationship test, an ordinance must pass the following requisites as
discussed in Social Justice Society (SJS) v. Atienza, Jr.:

As with the State, local governments may be considered as having properly exercised
their police power only if the following requisites are met: (1) the interests of the public
generally, as distinguished from those of a particular class, require its exercise and (2) the
means employed are reasonably necessary for the accomplishment of the purpose and not
unduly oppressive upon individuals. In short, there must be a concurrence of a lawful subject
and lawful method.

Lacking a concurrence of these two requisites, the police power measure shall be struck
down as an arbitrary intrusion into private rights and a violation of the due process clause.
(Fernando v. St. Scholastica’s College, G.R. No. 161107, March 12, 2013)

The State may not, under the guise of police power, permanently divest owners
of the beneficial use of their property solely to preserve or enhance the aesthetic
appearance of the community. The requirement under the ordinance for owners of
educational institutions to build their fences six meters back for beautification
purposes is invalid.

Section 3.1 and 5 of the assailed ordinance are pertinent to the issue at hand, to wit:
Section 3. The standard height of fences of walls allowed under this ordinance are as follows:

(1) Fences on the front yard – shall be no more than one (1) meter in height. Fences in excess
of one (1) meter shall be an open fence type, at least eighty percent (80%) see-thru;

xxx xxx xxx

Section 5. In no case shall walls and fences be built within the five (5) meter parking area
allowance located between the front monument line and the building line of commercial and industrial
establishments and educational and religious institutions.

The respondents, thus, sought to prohibit the petitioners from requiring them to (1)
demolish their existing concrete wall, (2) build a fence (in excess of one meter) which must be
80% see-thru, and (3) build the said fence six meters back in order to provide a parking area.

xxx

Anent the objectives of prevention of concealment of unlawful acts and "un-

neighborliness," it is obvious that providing for a parking area has no logical connection to, and
is not reasonably necessary for, the accomplishment of these goals.

7|Page
 Regarding the beautification purpose of the setback requirement, it has long been settled
that the State may not, under the guise of police power, permanently divest owners of the
beneficial use of their property solely to preserve or enhance the aesthetic appearance of the
community. The Court, thus, finds Section 5 to be unreasonable and oppressive as it will
substantially divest the respondents of the beneficial use of their property solely for aesthetic
purposes. Accordingly, Section 5 of Ordinance No. 192 is invalid. (Fernando v. St. Scholastica’s
College, G.R. No. 161107, March 12, 2013)

There must be reasonable relation between the purpose of the police power
measure and the means employed for its accomplishment. The means employed must
be reasonably necessary for the accomplishment of the government purpose. Limiting
the height of fences of private properties to one meter and requiring fences in excess
of one meter to be at least 80% see-thru has no reasonable relation to its purpose of
ensuring public safety and security. The ordinance is thus an invalid exercise of police
power.

The petitioners argue that x x x Section 3.1 [of Ordinance No. 192] limiting the height of
fences to one meter and requiring fences in excess of one meter to be at least 80% see-thru, should
remain valid and enforceable against the respondents.

The Court cannot accommodate the petitioner.

For Section 3.1 to pass the rational relationship test, the petitioners must show the
reasonable relation between the purpose of the police power measure and the means employed
for its accomplishment, for even under the guise of protecting the public interest, personal rights
and those pertaining to private property will not be permitted to be arbitrarily invaded.

The principal purpose of Section 3.1 is "to discourage, suppress or prevent the
concealment of prohibited or unlawful acts." The ultimate goal of this objective is clearly the
prevention of crime to ensure public safety and security. The means employed by the petitioners,
however, is not reasonably necessary for the accomplishment of this purpose and is unduly
oppressive to private rights. The petitioners have not adequately shown, and it does not appear
obvious to this Court, that an 80% see-thru fence would provide better protection and a higher
level of security, or serve as a more satisfactory criminal deterrent, than a tall solid concrete wall.
It may even be argued that such exposed premises could entice and tempt would-be criminals to
the property, and that a see-thru fence would be easier to bypass and breach. It also appears that
the respondents’ concrete wall has served as more than sufficient protection over the last 40 years.
`

As to the beautification purpose of the assailed ordinance, as previously discussed, the

State may not, under the guise of police power, infringe on private rights solely for the sake of the
aesthetic appearance of the community. Similarly, the Court cannot perceive how a see-thru fence
will foster "neighborliness" between members of a community.

Compelling the respondents to construct their fence in accordance with the assailed
ordinance is, thus, a clear encroachment on their right to property, which necessarily includes
their right to decide how best to protect their property. (Fernando v. St. Scholastica’s College,
G.R. No. 161107, March 12, 2013)

The constitutional guaranty of non-impairment of contracts is limited by the

exercise of the police power. The law is deemed written into the contract between
the parties. Thus, survey firms may be compelled by the Comelec, through regulation,
to reveal the identities of subscribers to election surveys, despite the confidentiality
clause in their contracts.

Petitioners argue that Resolution No. 9674 violates Article III, Section 10 of the 1987
Constitution. They claim that it "unduly interferes with [their] existing contracts . . . by forcing
[them] to disclose information that, under the contracts, is confidential or privileged."

xxx

It is settled that "the constitutional guaranty of non-impairment . . . is limited by the

exercise of the police power of the State, in the interest of public health, safety, morals and general
welfare." "It is a basic rule in contracts that the law is deemed written into the contract between

8|Page
the parties." The incorporation of regulations into contracts is "a postulate of the police power of
the State."

The relation of the state’s police power with the principle of non-impairment of contracts
was thoroughly explained in Ortigas and Co. V. Feati Bank:

[W]hile non-impairment of contracts is constitutionally guaranteed, the rule is not

absolute, since it has to be reconciled with the legitimate exercise of police power, i.e., "the power
to prescribe regulations to promote the health, morals, peace, education, good order or safety and
general welfare of the people. x x x We do not see why public welfare when clashing with the
individual right to property should not be made to prevail through the state's exercise of its police
power.

This case does not involve a "capricious, whimsical, unjust or unreasonable" regulation.
We have demonstrated that not only an important or substantial state interest, but even a
compelling one anchors Resolution No. 9674’s requirement of disclosing subscribers to election
surveys. It effects the constitutional policy of "guarantee[ing] equal access to opportunities for
public service" and is impelled by the imperative of "fair" elections.

As a valid exercise of COMELEC’s regulatory powers, Resolution No. 9674 is correctly

deemed written into petitioners’ existing contracts. (Social Weather Station v. Commission on
Elections, G.R. No. 208062, April 27, 2015)

EMINENT DOMAIN

Meaning of “taking”: "Taking" of property takes place when: (1) the owner is
actually deprived or dispossessed of his property;(2) there is a practical destruction
or a material impairment of the value of his property; (3) the owner is deprived of the
ordinary use of the property, or (4) when he is deprived of the jurisdiction,
supervision and control of his property.

[T]he full payment of just compensation is not a prerequisite for the Government's
effective taking of the property. x x x RA 8974 allows the Government to enter the property and
implement national infrastructure projects upon the issuance of the writ of possession. When the
taking of the property precedes the payment of just compensation, the Government shall
indemnify the property owner by way of interest.

"Taking" under the power of eminent domain means entering upon private property for
more than a momentary period, and under the warrant or color of legal authority, devoting it to
public use, or otherwise informally appropriating or injuriously affecting it in such a way as
substantially to oust the owner and deprive him of all beneficial enjoyment thereof.

"Taking" of property takes place when: (1) the owner is actually deprived or dispossessed
of his property;(2) there is a practical destruction or a material impairment of the value of his
property; (3) the owner is deprived of the ordinary use of the property, or (4) when he is deprived
of the jurisdiction, supervision and control of his property.

The taking of property is different from the transfer of the property title from the private
owner to the Government. Under Rule 67 of the Rules of Court, there are two phases of
expropriation: (a) the condemnation of the property after it is determined that its acquisition will
be for a public purpose or public use; and (b) the determination of just compensation to be paid
for the taking of private property to be made by the court with the assistance of not more than
three commissioners.

The first phase is concerned with the determination of the Government's authority to
exercise the power of eminent domain and the propriety of its exercise in the context of the facts
involved in the suit. The court declares that the Government has a lawful right to take the property
sought to be condemned, for the public use or purpose described in the complaint.

The second phase relates to the just amount that the Government shall compensate the
property owner.

Whenever the court affirms the condemnation of private property in the first phase of the
proceedings, it merely confirms the Government's lawful right to take the private property for
public purpose or public use. The court does not necessarily rule that the title to the private
property likewise vests on the Government.

9|Page
 The transfer of property title from the property owner to the Government is not a condition
precedent to the taking of property. The State may take private property prior to the eventual
transfer of title of the expropriated property to the State.

In fact, there are instances when the State takes the property prior to the filing of the
complaint for expropriation or without involving the transfer of title. In People v. Fajardo, the
Court ruled that the municipal mayor's refusal to give the property owner the permission to build
a house on his own land on the ground that the structure would destroy the beauty of the public
plaza amounts to the taking of the property requiring just compensation.

In National Power Corporation (NPC) v. Spouses Malit, the NPC's transmission lines had
to pass the Spouses Malit's property. The Court ruled that the NPC's easement of right-of-way on
the land was equivalent to the taking of property. The limitation imposed by the NPC against the
use of the land for an indefinite period deprived the Spouses Malit of the lot's ordinary use.
Consequently, the NPC shall give the Spouses Malit just compensation.

The reckoning period, however, of the valuation of just compensation is the date of taking
or the filing of the complaint for expropriation, whichever is earlier. In either case, it is only after
the finality of the second stage and after the payment of just compensation that the title shall pass
to the Government. As we have ruled in Gingoyon, the title to the property does not pass to the
condemnor until just compensation is paid.

Under Section 4 of RA 8974, the Government is only entitled to a writ of possession upon
initial payment of just compensation to the defendant, and upon presentment to the court of a
certificate of availability of funds.

A writ of possession does not transfer title to the Government; it is "a writ of execution
employed to enforce a judgment to recover the possession of land. It commands the sheriff to
enter the land and give its possession to the person entitled under the judgment." Section 4 of RA
8974 further states that the writ of possession is an order to take possession of the property and
to start the implementation of the project, to wit: xxx

The State's taking of the property is not based on trust or contract, but is founded on its
inherent power to appropriate private property for public use. It is also for this reason - to
compensate the property owner for the deprivation of his right to enjoy the ordinary use of his
property until the naked title to the property passed to the State - that the State pays interest from
the time of the taking of the property until full payment of just compensation. (Republic of the
Philippines v. Mupas, et al. G.R. No. 181892, 209917, 209696, 8 September 2015)

Just compensation: The full and fair equivalent of the property taken from its
owner by the expropriator.

2.b. Just compensation is the full and fair equivalent of the property taken from the
owner by the condemnor.

The 1987 Constitution embodies two constitutional safeguards against the arbitrary
exercise of eminent domain: first, private property shall not be taken for public use without just
compensation; and second, no person shall be deprived of life, liberty, or property without due
process of law.

Just compensation is defined as "the full and fair equivalent of the property taken from its
owner by the expropriator." The word "just" is used to qualify the meaning of the word
"compensation" and to convey the idea that the amount to be tendered for the property to be taken
shall be real, substantial, full and ample. On the other hand, the word "compensation" means "a
full indemnity or remuneration for the loss or damage sustained by the owner of property taken
or injured for public use."

Simply stated, just compensation means that the former owner must be returned to the
monetary equivalent of the position that the owner had when the taking occurred. To achieve this
monetary equivalent, we use the standard value of "fair market value" of the property at the time
of the filing of the complaint for expropriation or at the time of the taking of property, whichever
is earlier.

2.b.1. Fair market value is the general standard of value in determining just
compensation.

10 | P a g e
 Jurisprudence broadly defines "fair market value" as the sum of money that a person
desirous but not compelled to buy, and an owner willing but not compelled to sell, would agree
on as a price to be given and received for a property.

Fair market value is not limited to the assessed value of the property or to the schedule of
market values determined by the provincial or city appraisal committee. However, these values
may serve as factors to be considered in the judicial valuation of the property.

Among the factors to be considered in arriving at the fair market value of the property are
the cost of acquisition, the current value of like properties, its actual or potential uses, and in the
particular case of lands, their size, shape, location, and the tax declarations. The measure is not
the taker's gain but the owner's loss. To be just, the compensation must be fair not only to the
owner but also to the taker.

While jurisprudence requires the "fair market value" to be the measure of recovery in
expropriation cases, it is not an absolute and exclusive standard or method of valuation. There are
exceptional cases where the property has no fair market value or where the fair market value of
the property is difficult to determine.

Examples of properties with no or with scant data of their fair market values are
specialized properties or buildings designed for unique purposes. These specialized properties
bear these characteristics because they are "rarely x x x sold in the market, except by way of sale
of the business or entity of which it is part, due to the uniqueness arising from its specialized
nature and design, its configuration, size, location, or otherwise."

Examples of specialized properties are churches, colleges, cemeteries, and clubhouses.

These also include airport terminals that are specifically built as "a place where aircrafts land and
take off and where there are buildings for passengers to wait in and for aircraft to be
sheltered." They are all specialized properties because they are not usually sold in the ordinary
course of trade or business. (Republic of the Philippines v. Mupas, et al. G.R. No. 181892, 209917,
209696, 8 September 2015)

In cases where the fair market value of the property is difficult to ascertain,
the court may use other just and equitable market methods of valuation in order to
estimate the fair market value of a property.

2.b.2. Replacement cost is a different standard of value from fair market value.

In Gingoyon, we held that the construction of the NAIA-IPT III involves the
implementation of a national infrastructure project. Thus, for purposes of determining the just
compensation of the NAIA-IPT III, RA 8974 and its implementing rules shall be the governing
law.
xxx

Replacement cost is a different standard of valuation from the fair market value. As we
previously stated, fair market value is the price at which a property may be sold by a seller who is
not compelled to sell and bought by a buyer who is not compelled to buy. In contrast, replacement
cost is "the amount necessary to replace the improvements/structures, based on the current
market prices for materials, equipment, labor, contractor's profit and overhead, and all other
attendant costs associated with the acquisition and installation in place of the affected
improvements/structures." We use the replacement cost method to determine just compensation
if the expropriated property has no market based evidence of its value.

2.b.3. Replacement cost is only one of the standards that the Court shall consider in
appraising the NAIA-IPT III.
xxx

The Court explained in Agan and Gingoyon that the replacement cost method is only one
of the factors to be considered in determining the just compensation of the NAIA-IPT III. The
Court added that the payment of just compensation should be in accordance with equity as well.
(Republic of the Philippines v. Mupas, et al. G.R. No. 181892, 209917, 209696, 8 September 2015)

A city ordinance requiring land owners to setback their fences by five meters
to provide for parking space is tantamount to a taking of private property for public

11 | P a g e
use without just compensation. The total destruction of value of the property is not
required for a taking to be compensable.

The respondents, thus, sought to prohibit the petitioners [city officials] from requiring
them to (1) demolish their existing concrete wall, (2) build a fence (in excess of one meter) which
must be 80% see-thru, and (3) build the said fence six meters back in order to provide a parking
area.

The Court first turns its attention to Section 5 [of City Ordinance No. 192] which requires
the five-meter setback of the fence to provide for a parking area. The petitioners initially argued
that the ownership of the parking area to be created would remain with the respondents as it
would primarily be for the use of its students and faculty, and that its use by the public on non-
school days would only be incidental. x x x

xxx

The Court joins the CA in finding that the real intent of the setback requirement was to
make the parking space free for use by the public, considering that it would no longer be for the
exclusive use of the respondents as it would also be available for use by the general public. Section
9 of Article III of the 1987 Constitution, a provision on eminent domain, provides that private
property shall not be taken for public use without just compensation.

The petitioners cannot justify the setback by arguing that the ownership of the property
will continue to remain with the respondents. It is a settled rule that neither the acquisition of
title nor the total destruction of value is essential to taking. In fact, it is usually in cases where the
title remains with the private owner that inquiry should be made to determine whether the
impairment of a property is merely regulated or amounts to a compensable taking. The Court is
of the view that the implementation of the setback requirement would be tantamount to a taking
of a total of 3,762.36 square meters of the respondents’ private property for public use without
just compensation, in contravention to the Constitution. (Fernando v. St. Scholastica’s College,
G.R. No. 161107, March 12, 2013)

Reckoning point for determination of just compensation: "Fair market value"

of the property at the time of the filing of the complaint for expropriation or at the
time of the taking of property, whichever is earlier.

The 1987 Constitution embodies two constitutional safeguards against the arbitrary
exercise of eminent domain: first, private property shall not be taken for public use without just
compensation; and second, no person shall be deprived of life, liberty, or property without due
process of law.

Just compensation is defined as "the full and fair equivalent of the property taken from its
owner by the expropriator." The word "just" is used to qualify the meaning of the word
"compensation" and to convey the idea that the amount to be tendered for the property to be taken
shall be real, substantial, full and ample. On the other hand, the word "compensation" means "a
full indemnity or remuneration for the loss or damage sustained by the owner of property taken
or injured for public use."

Simply stated, just compensation means that the former owner must be returned to the
monetary equivalent of the position that the owner had when the taking occurred. To achieve this
monetary equivalent, we use the standard value of "fair market value" of the property at the time
of the filing of the complaint for expropriation or at the time of the taking of property, whichever
is earlier. (Republic v. Mupas, G.R. No. 181892, September 8, 2015)

Computation of interest as part of just compensation: When the taking of the

property precedes the filing of the complaint for expropriation, the Court orders the
condemnor to pay the full amount of just compensation from the date of taking whose
interest shall likewise commence on the same date.

Under Section 4, Rule 67 of the Rules of Court, the property sought to be expropriated
shall be appraised as of the date of taking of the property or the filing of the complaint for
expropriation, whichever is earlier xxx.

12 | P a g e
 On the other hand, Section 9, Article 3 of the 1987 Constitution provides that "[n]o private
property shall be taken for public use without just compensation." The 1987 Constitution thus
commands the condemnor to pay the property owner the full and fair equivalent of the property
from the date of taking. This provision likewise presupposes that the condemnor incurs delay if it
does not pay the property owner the full amount of just compensation on the date of taking.

The reason is that just compensation would not be "just" if the State does not pay the
property owner interest on the just compensation from the date of the taking of the property.
Without prompt payment, the property owner suffers the immediate deprivation of both his land
and its fruits or income. The owner's loss, of course, is not only his property but also its income-
generating potential.

Ideally, just compensation should be immediately made available to the property owner
so that he may derive income from this compensation, in the same manner that he would have
derived income from his expropriated property.

However, if full compensation is not paid for the property taken, then the State must pay
for the shortfall in the earning potential immediately lost due to the taking, and the absence of
replacement property from which income can be derived. Interest on the unpaid compensation
becomes due as compliance with the constitutional mandate on eminent domain and as a basic
measure of fairness.

Thus, interest in eminent domain cases "runs as a matter of law and follows as a matter of
course from the right of the landowner to be placed in as good a position as money can accomplish,
as of the date of taking."

xxx

The Government's initial payment of just compensation does not excuse it from avoiding
payment of interest on the difference between the adjudged amount of just compensation and the
initial payment.

The initial payment scheme as a prerequisite for the issuance of the writ of possession
under RA 8974 only provides the Government flexibility to immediately take the property for
public purpose or public use pending the court's final determination of just compensation. Section
4 (a) of RA 8974 only addresses the Government's need to immediately enter the privately owned
property in order to avoid delay in the implementation of national infrastructure projects.

Otherwise, Section 4 of RA 8974 would be repugnant to Section 9, Article 3 of the 1987

Constitution which mandates that private property shall not be taken for public use without just
compensation. To reiterate, the Constitution commands the Government to pay the property
owner no less than the full and fair equivalent of the property from the date of taking.

In the present case, the Government avers that PIATCO is not entitled to recover interest.
According to the Government, PIATCO should not be allowed to profit from the void contracts.
This contention, however, stems from a mistaken understanding of interest in expropriation
cases.

Contrary to the Government's opinion, the interest award is not anchored either on the
law of contracts or damages; it is based on the owner's constitutional right to just compensation.
The difference in the amount between the final payment and the initial payment - in the interim
or before the judgment on just compensation becomes final and executory - is not unliquidated
damages which do not earn interest until the amount of damages is established with reasonable
certainty. The difference between final and initial payments forms part of the just compensation
that the property owner is entitled from the date of taking of the property.

Thus, when the taking of the property precedes the filing of the complaint for
expropriation, the Court orders the condemnor to pay the full amount of just compensation from
the date of taking whose interest shall likewise commence on the same date. The Court does not
rule that the interest on just compensation shall commence the date when the amount of just
compensation becomes certain, e.g., from the promulgation of the Court's decision or the finality
of the eminent domain case.

With respect to the amount of interest on just compensation, we decisively ruled in

Republic v. Court of Appeals that the just compensation due to the property owner is effectively a
forbearance of money, and not indemnity for damages. Citing Eastern Shipping Lines, Inc. v.

13 | P a g e
Court of Appeals,we awarded a legal interest of 12% per annum on just compensation. The Court
upheld the imposition of the 12% interest rate in just compensation cases xxx.

On June 21, 2013, the BSP issued Circular No. 799,355 pursuant to MB Resolution No.
796 dated May 16,2013, reducing the legal interest on loans and forbearance of money from 12%
to 6% per annum. BSP Circular No. 799 took effect on July 1, 2013. (Republic v. Mupas, G.R. No.
181892, September 8, 2015)

Agrarian Reform

The basic law allows two (2) modes of land distribution: direct and indirect
ownership. Direct transfer to individual farmers is the most commonly used method
by DAR and widely accepted. Indirect transfer through collective ownership of the
agricultural land is the alternative. By using the word collectively, the Constitution
allows for indirect ownership of land and not just outright agricultural land transfer.
Thus, allowing corporations or associations to own agricultural land with the farmers
becoming stockholders or members does not violate the agrarian reform policy under
the Constitution.

Sec. 4, Article XIII of the Constitution reads:

The State shall, by law, undertake an agrarian reform program founded on the
right of the farmers and regular farmworkers, who are landless, to OWN directly or
COLLECTIVELY THE LANDS THEY TILL or, in the case of other farmworkers, to receive
a just share of the fruits thereof. To this end, the State shall encourage and undertake the
just distribution of all agricultural lands, subject to such priorities and reasonable retention
limits as the Congress may prescribe, taking into account ecological, developmental, or
equity considerations, and subject to the payment of just compensation. In determining
retention limits, the State shall respect the right of small landowners. The State shall
further provide incentives for voluntary land-sharing. (Emphasis supplied.)

The wording of the provision is unequivocal the farmers and regular farmworkers have a
right TO OWN DIRECTLY OR COLLECTIVELY THE LANDS THEY TILL. The basic law allows
two (2) modes of land distribution direct and indirect ownership. x x x Indirect transfer through
collective ownership of the agricultural land is the alternative to direct ownership of agricultural
land by individual farmers. The aforequoted Sec. 4 EXPRESSLY authorizes collective ownership
by farmers. x x x By using the word collectively, the Constitution allows for indirect ownership of
land and not just outright agricultural land transfer. x x x

Collective ownership is permitted in two (2) provisions of RA 6657. Its Sec. 29 allows
workers’ cooperatives or associations to collectively own the land, while the second paragraph of
Sec. 31 allows corporations or associations to own agricultural land with the farmers becoming
stockholders or members.

x x x Sec. 31 is constitutional as it simply implements Sec. 4 of Art. XIII of the Constitution

that land can be owned COLLECTIVELY by farmers. Even the framers of the l987 Constitution
are in unison with respect to the two (2) modes of ownership of agricultural lands tilled by farmers
DIRECT and COLLECTIVE x x x.

xxx

[T]he stock distribution option devised under Sec. 31 of RA 6657 hews with the agrarian
reform policy, as instrument of social justice under Sec. 4 of Article XIII of the Constitution.
(Hacienda Luisita Incorporated v. Presidential Agrarian Reform Council, G.R. No. 171101, July
5, 2011)

Just Compensation: An action for payment of just compensation is not barred

by laches. Laches as a doctrine of equity does not apply because law and equity
dictate payment of just compensation. Thus, even after the lapse of more than 50
years, a property owner may still file a claim to demand just compensation for the
taking of his property without the benefit of expropriations proceedings.

14 | P a g e
 It is undisputed that the subject property was taken by petitioners without the benefit of
expropriation proceedings for the construction of the MacArthur Highway. After the lapse of more
than fifty years, the property owners sought recovery of the possession of their property. Is the
action barred by prescription or laches? If not, are the property owners entitled to recover
possession or just compensation?

xxx

Even if we squarely deal with the issues of laches and prescription, the same must still fail.
Laches is principally a doctrine of equity which is applied to avoid recognizing a right when to do
so would result in a clearly inequitable situation or in an injustice. This doctrine finds no
application in this case, since there is nothing inequitable in giving due course to respondents’
claim. Both equity and the law direct that a property owner should be compensated if his property
is taken for public use. Neither shall prescription bar respondents’ claim following the long-
standing rule “that where private property is taken by the Government for public use without first
acquiring title thereto either through expropriation or negotiated sale, the owner’s action to
recover the land or the value thereof does not prescribe.”

When a property is taken by the government for public use, jurisprudence clearly provides
for the remedies available to a landowner. The owner may recover his property if its return is
feasible or, if it is not, the aggrieved owner may demand payment of just compensation for the
land taken. For failure of respondents to question the lack of expropriation proceedings for a long
period of time, they are deemed to have waived and are estopped from assailing the power of the
government to expropriate or the public use for which the power was exercised. What is left to
respondents is the right of compensation. (Secretary of the Department of Public Works and
Highways v. Spouses Tecson, G.R. No. 179334, July 1, 2013)

An action for payment of just compensation does not prescribe. If private

property is taken by the Government for public use without expropriation proceedings
or negotiated sale, the owner’s action to recover the land or the value thereof does
not prescribe.

Neither shall prescription bar respondents’ claim following the long-standing rule "that
where private property is taken by the Government for public use without first acquiring title
thereto either through expropriation or negotiated sale, the owner’s action to recover the land or
the value thereof does not prescribe."

When a property is taken by the government for public use, jurisprudence clearly provides
for the remedies available to a landowner. The owner may recover his property if its return is
feasible or, if it is not, the aggrieved owner may demand payment of just compensation for the
land taken. For failure of respondents to question the lack of expropriation proceedings for a long
period of time, they are deemed to have waived and are estopped from assailing the power of the
government to expropriate or the public use for which the power was exercised. What is left to
respondents is the right of compensation. (Secretary of the Department of Public Works and
Highways v. Spouses Tecson, G.R. No. 179334, July 1, 2013)

The reckoning point for determining just compensation is the value of the
property at the time of taking.

Just compensation must be valued at the time of taking, or the time when the landowner
was deprived of the use and benefit of his property, such as when title is transferred in the name
of the Republic of the Philippines. (Department of Agrarian Reform v. Spouses Sta. Romana,
G.R. No. 183290, July 9, 2014)

Even if the government taking was in 1940, and the action for payment of just
compensation was only filed in 1995, the reckoning point for determining just
compensation is still the value of the property at the time of taking. Thus, just
compensation should be fixed not as of the time of payment but at the time of taking,
that is, in 1940, even though this valuation appears outdated.

Just compensation is "the fair value of the property as between one who receives, and one
who desires to sell, x x x fixed at the time of the actual taking by the government." This rule holds
true when the property is taken before the filing of an expropriation suit, and even if it is the
property owner who brings the action for compensation.

15 | P a g e
 xxx

The Court in the [Forfom Development Corporation [Forfom] v. Philippine National

Railways [PNR], Eusebio v. Luis, Manila International Airport Authority v. Rodriguez, and
Republic v. Sarabia] cases was confronted with common factual circumstances where the
government took control and possession of the subject properties for public use without initiating
expropriation proceedings and without payment of just compensation, while the landowners
failed for a long period of time to question such government act and later instituted actions for
recovery of possession with damages. The Court thus determined the landowners’ right to the
payment of just compensation and, more importantly, the amount of just compensation. The
Court has uniformly ruled that just compensation is the value of the property at the time of taking
that is controlling for purposes of compensation. x x x As in said cases, just compensation due
respondents in this case should, therefore, be fixed not as of the time of payment but at the time
of taking, that is, in 1940.

The reason for the rule has been clearly explained in Republic v. Lara, et al., and
repeatedly held by the Court in recent cases, thus:

x x x "The value of the property should be fixed as of the date when it was taken and
not the date of the filing of the proceedings." x x x The owner of private property should be
compensated only for what he actually loses; it is not intended that his compensation shall
extend beyond his loss or injury. And what he loses is only the actual value of his property at
the time it is taken x x x.

Both the RTC and the CA recognized that the fair market value of the subject property in
1940 was P0.70/sq m. Hence, it should, therefore, be used in determining the amount due
respondents instead of the higher value which is P1,500.00. While disparity in the above amounts
is obvious and may appear inequitable to respondents as they would be receiving such outdated
valuation after a very long period, it is equally true that they too are remiss in guarding against
the cruel effects of belated claim. The concept of just compensation does not imply fairness to the
property owner alone. Compensation must be just not only to the property owner, but also to the
public which ultimately bears the cost of expropriation.

x x x For said illegal taking, respondents are entitled to adequate compensation in the form
of actual or compensatory damages which in this case should be the legal interest of six percent
(6%) per annum on the value of the land at the time of taking in 1940 until full payment. This is
based on the principle that interest runs as a matter of law and follows from the right of the
landowner to be placed in as good position as money can accomplish, as of the date of taking.
(Secretary of the Department of Public Works and Highways v. Spouses Tecson, G.R. No.
179334, July 1, 2013)

(AUTHOR’S NOTE: In his Dissenting Opinion, Justice Velasco wrote:

“[I]t is highly unjust and inequitable, as aptly observed by the CA, to pay
respondents just compensation at the rate of PhP 0.70 per square meter, which was then
the value of the subject property in 1940 when the illegal taking was committed. This
injustice and inequity is emphasized by the measly award respondents will receive now,
as the ponencia so rules, after having been deprived of their right to procedural due
process for 55 years with the DPWH disregarding and violating practically all
constitutional, statutory and procedural rules relative to the condemnation of the subject
lot for public use. In effect, despite what respondents have been through, they are still
penalized by the government considering that after 72 years from the time of the illegal
taking of their property, they will only receive a measly amount of just compensation”

Please also note that the ruling in DPWH v. Tecson runs counter to an earlier ruling of the
Supreme Court in Heirs of Pidacan v. Air Transport Authority [G.R. No. 162779, June 15, 2007],
wherein the High Tribunal noted that it would be iniquitous to reckon the value of the property
at the time of the taking in 1948. It ruled that justice and fairness dictate that the appropriate
reckoning point for the valuation of petitioners’ property was when the trial court made its order
of expropriation in 2001.

The determination of just compensation is a judicial function. Statutes and

executive issuances fixing or providing for the method of computing just
compensation are not binding on courts and, at best, are treated as mere guidelines
in ascertaining the amount thereof.

16 | P a g e
 While a court should take into account the different formula created by the DAR in arriving
at its just compensation valuation, it is not strictly bound thereto. The determination of just
compensation is a judicial function. (Department of Agrarian Reform v. Spouses Sta. Romana,
G.R. No. 183290, July 9, 2014)

In insisting that the just compensation cannot exceed 10% of the market value of the
affected property, Napocor relies heavily on Section 3A of RA No. 6395 x x x.

xxxx

Just compensation has been defined as "the full and fair equivalent of the property taken
from its owner by the expropriator. The measure is not the taker's gain, but the owner’s loss. The
word ‘just’ is used to qualify the meaning of the word ‘compensation’ and to convey thereby the
idea that the amount to be tendered for the property to be taken shall be real, substantial, full and
ample." The payment of just compensation for private property taken for public use is guaranteed
no less by our Constitution and is included in the Bill of Rights. As such, no legislative enactments
or executive issuances can prevent the courts from determining whether the right of the property
owners to just compensation has been violated. It is a judicial function that cannot "be usurped
by any other branch or official of the government." Thus, we have consistently ruled that statutes
and executive issuances fixing or providing for the method of computing just compensation are
not binding on courts and, at best, are treated as mere guidelines in ascertaining the amount
thereof. In National Power Corporation v. Bagui, where the same petitioner also invoked the
provisions of Section 3A of RA No. 6395, we held that:

Moreover, Section 3A-(b) of R.A. No. 6395, as amended, is not binding on the Court.
It has been repeatedly emphasized that the determination of just compensation in eminent
domain cases is a judicial function and that any valuation for just compensation laid down
in the statutes may serve only as a guiding principle or one of the factors in determining just
compensation but it may not substitute the court’s own judgment as to what amount should
be awarded and how to arrive at such amount.

This ruling was reiterated in Republic v. Lubinao, National Power Corporation v. Tuazon
and National Power Corporation v. Saludares and continues to be the controlling doctrine.
Notably, in all these cases, Napocor likewise argued that it is liable to pay the property owners for
the easement of right-of-way only and not the full market value of the land traversed by its
transmission lines. But we uniformly held in those cases that since the high-tension electric
current passing through the transmission lines will perpetually deprive the property owners of
the normal use of their land, it is only just and proper to require Napocor to recompense them for
the full market value of their property. (National Power Corporation v. Spouses Zabala, G.R. No.
173520, January 30, 2013)

Just compensation: Interest must be paid in case of delay, to be computed from

the time the property is taken to the time when compensation is actually paid or
deposited with the court.

Constitutionally, "just compensation" is the sum equivalent to the market value of the
property. However, compensation, to be "just," must also be made without delay. The owner’s loss
is not only his property but also its income-generating potential. Thus, if property is taken for
public use before compensation is deposited with the court having jurisdiction over the case, the
final compensation must include interest[s] on its just value to be computed from the time the
property is taken to the time when compensation is actually paid or deposited with the court.
(Land Bank of the Philippines v. Santiago, G.R. No. 182209, October 3, 2012)

The Court has allowed the grant of legal interest in expropriation cases where there is delay
in the payment since the just compensation due to the landowners was deemed to be an effective
forbearance on the part of the State. Legal interest shall be pegged at the rate of 12% interest per
annum (p.a.). from the time of taking until June 30, 2013 only. Thereafter, or beginning July 1,
2013, until fully paid, the just compensation due the landowners shall earn interest at the new
legal rate of 6% interest p.a. in line with the amendment introduced by BSP-MB Circular No.
799,58 series of 2013.59. (Department of Agrarian Reform v. Spouses Sta. Romana, G.R. No.
183290, July 9, 2014)

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 TAXATION

A tax has three elements, namely: a) it is an enforced proportional contribution

from persons and properties; b) it is imposed by the State by virtue of its sovereignty;
and c) it is levied for the support of the government. Thus, the coconut levy funds are
in the nature of taxes.

The coconut levy funds are in the nature of taxes and can only be used for public purpose.
Consequently, they cannot be used to purchase shares of stocks to be given for free to private
individuals.

Indeed, We have hitherto discussed, the coconut levy was imposed in the exercise of the
States inherent power of taxation. As We wrote in Republic v. COCOFED:

Indeed, coconut levy funds partake of the nature of taxes, which, in

general, are enforced proportional contributions from persons and properties,
exacted by the State by virtue of its sovereignty for the support of government and
for all public needs.

Based on its definition, a tax has three elements, namely: a) it is an enforced

proportional contribution from persons and properties; b) it is imposed by the
State by virtue of its sovereignty; and c) it is levied for the support of the
government. The coconut levy funds fall squarely into these elements for the
following reasons:

(a) They were generated by virtue of statutory enactments imposed on the

coconut farmers requiring the payment of prescribed amounts. Thus, PD No. 276,
which created the Coconut Consumer[s] Stabilization Fund (CCSF), mandated the
following:

a. A levy, initially, of P15.00 per 100 kilograms of copra resecada

or its equivalent in other coconut products, shall be imposed on every first
sale, in accordance with the mechanics established under RA 6260,
effective at the start of business hours on August 10, 1973.

The proceeds from the levy shall be deposited with the Philippine
National Bank or any other government bank to the account of the Coconut
Consumers Stabilization Fund, as a separate trust fund which shall not
form part of the general fund of the government.

xxx

Like other tax measures, they were not voluntary payments or donations by
the people. They were enforced contributions exacted on pain of penal sanctions,
as provided under PD No. 276:

xxx.

(b) The coconut levies were imposed pursuant to the laws enacted by the
proper legislative authorities of the State. Indeed, the CCSF was collected under PD
No. 276.

(c) They were clearly imposed for a public purpose. There is

absolutely no question that they were collected to advance the
government’s avowed policy of protecting the coconut industry. x x x

Taxation is done not merely to raise revenues to support the government,

but also to provide means for the rehabilitation and the stabilization of a
threatened industry, which is so affected with public interest as to be within
the police power of the State.

Even if the money is allocated for a special purpose and raised by special
means, it is still public in character. x x x It cannot be denied that the
coconut industry is one of the major industries supporting the national
economy. x x x (Emphasis Ours)

(Cocofed v. Republic, G.R. Nos. 177857-58, January 24, 2012)

18 | P a g e
 Taxes are imposed only for a public purpose and cannot be used for purely
private purposes or for the exclusive benefit of private persons. The coconut levy
funds are in the nature of taxes and can only be used for public purposes.
Consequently, they cannot be used to purchase shares of stocks to be given for free
to private individuals.

[T]axes are imposed only for a public purpose. They cannot be used for purely private
purposes or for the exclusive benefit of private persons. When a law imposes taxes or levies from
the public, with the intent to give undue benefit or advantage to private persons, or the promotion
of private enterprises, that law cannot be said to satisfy the requirement of public purpose. x x x

x x x [T]he coconut levy funds were sourced from forced exactions decreed under P.D. Nos.
232, 276 and 582, among others, with the end-goal of developing the entire coconut
industry. Clearly, to hold therefore, even by law, that the revenues received from the imposition
of the coconut levies be used purely for private purposes to be owned by private individuals in
their private capacity and for their benefit, would contravene the rationale behind the imposition
of taxes or levies.

Needless to stress, courts do not, as they cannot, allow by judicial fiat the conversion of
special funds into a private fund for the benefit of private individuals. In the same vein, We cannot
subscribe to the idea of what appears to be an indirect if not exactly direct conversion of special
funds into private funds, i.e., by using special funds to purchase shares of stocks, which in turn
would be distributed for free to private individuals. Even if these private individuals belong to, or
are a part of the coconut industry, the free distribution of shares of stocks purchased with special
public funds to them, nevertheless cannot be justified. x x x

xxx

In this case, the coconut levy funds were being exacted from copra exporters, oil millers,
desiccators and other end-users of copra or its equivalent in other coconut products. Likewise so,
the funds here were channeled to the purchase of the shares of stock in UCPB. Drawing a clear
parallelism between Gaston and this case, the fact that the coconut levy funds were collected from
the persons or entities in the coconut industry, among others, does not and cannot entitle them
to be beneficial owners of the subject funds or more bluntly, owners thereof in their private
capacity. Parenthetically, the said private individuals cannot own the UCPB shares of stocks so
purchased using the said special funds of the government. (Cocofed v. Republic, G.R. Nos. 177857-
58, January 24, 2012)

INDIVIDUAL RIGHTS AND LIBERTIES

The Bill of Rights: Protection against actions of the State. Thus, it cannot be
invoked in private controversies involving private parties.

The Bill of Rights, which guarantees against the taking of life, property, or liberty without
due process under Section 1 is generally a limitation on the states powers in relation to the rights
of its citizens. The right to due process is meant to protect ordinary citizens against arbitrary
government action, but not from acts committed by private individuals or entities. In the latter
case, the specific statutes that provide reliefs from such private acts apply. The right to due process
guards against unwarranted encroachment by the state into the fundamental rights of its citizens
and cannot be invoked in private controversies involving private parties.

Although political parties play an important role in our democratic set-up as an

intermediary between the state and its citizens, it is still a private organization, not a state
instrument. The discipline of members by a political party does not involve the right to life, liberty
or property within the meaning of the due process clause. x x x

(Atienza v. Commission on Elections, G.R. No. 188920, February 16, 2010)

19 | P a g e
 RIGHT TO LIFE

An ordinance to promote the constituents’ general welfare in terms of

economic benefits cannot override the very basic rights to life, security and safety of
the people. In the absence of any convincing reason that the life, security and safety
of the inhabitants of Manila are no longer put at risk by the presence of the oil depots
in Pandacan, Ordinance No. 8187 in favor of the retention of the oil depots is invalid
and unconstitutional.

These petitions are a sequel to the case of Social Justice Society v. Mayor Atienza, Jr.
(hereinafter referred to as G.R. No. 156052), where the Court found: (1) that the ordinance
subject thereof – Ordinance No. 8027 – was enacted "to safeguard the rights to life, security and
safety of the inhabitants of Manila;" (2) that it had passed the tests of a valid ordinance; and (3)
that it is not superseded by Ordinance No. 8119. Declaring that it is constitutional and valid, the
Court accordingly ordered its immediate enforcement with a specific directive on the relocation
and transfer of the Pandacan oil terminals.

Highlighting that the Court has so ruled that the Pandacan oil depots should leave, herein
petitioners now seek the nullification of Ordinance No. 8187, which contains provisions contrary
to those embodied in Ordinance No. 8027. xxx

xxx

The petitioners’ arguments are primarily anchored on the ruling of the Court in G. R. No.
156052 declaring Ordinance No. 8027 constitutional and valid after finding that the presence of
the oil terminals in Pandacan is a threat to the life and security of the people of Manila. xxx

xxx

We see no reason why Ordinance No. 8187 should not be stricken down insofar as the
presence of the oil depots in Pandacan is concerned.

xxx

In G.R. No. 156052, the validity and constitutionality of Ordinance No. 8027 was declared
as a guarantee for the protection of the constitutional right to life of the residents of Manila. There,
the Court said that the enactment of the said ordinance was a valid exercise of police power with
the concurrence of the two requisites: a lawful subject – "to safeguard the rights to life, security
and safety of all the inhabitants of Manila;" and a lawful method – the enactment of Ordinance
No. 8027 reclassifying the land use from industrial to commercial, which effectively ends the
continued stay of the oil depots in Pandacan.

In the present petitions, the respondents and the oil companies plead that the Pandacan
Terminal has never been one of the targets of terrorist attacks; that the petitions were based on
unfounded fears and mere conjectures; and that the possibility that it would be picked by the
terrorists is nil given the security measures installed thereat.

The intervenors went on to identify the measures taken to ensure the safety of the people
even with the presence of the Pandacan Terminals. xxx

xxx

Even assuming that the respondents and intervenors were correct, the very nature of the
depots where millions of liters of highly flammable and highly volatile products, regardless of
whether or not the composition may cause explosions, has no place in a densely populated area.
xxx

xxx

It is the removal of the danger to life not the mere subdual of risk of catastrophe, that we
saw in and made us favor Ordinance No. 8027. That reason, unaffected by Ordinance No. 8187,
compels the affirmance of our Decision in G.R. No. 156052.

In striking down the contrary provisions of the assailed Ordinance relative to the
continued stay of the oil depots, we follow the same line of reasoning used in G.R. No. 156052, to
wit: Ordinance No. 8027 was enacted "for the purpose of promoting sound urban planning,
ensuring health, public safety and general welfare" of the residents of Manila. The Sanggunian
was impelled to take measures to protect the residents of Manila from catastrophic devastation in
case of a terrorist attack on the Pandacan Terminals. Towards this objective, the Sanggunian
reclassified the area defined in the ordinance from industrial to commercial.
20 | P a g e
 xxx

The ordinance was intended to safeguard the rights to life, security and safety of all the
inhabitants of Manila and not just of a particular class. xxx

xxx

In the absence of any convincing reason to persuade this Court that the life, security and
safety of the inhabitants of Manila are no longer put at risk by the presence of the oil depots, we
hold that Ordinance No. 8187 in relation to the Pandacan Terminals is invalid and
unconstitutional.

xxx

Neither is it necessary to discuss at length the test of police power against the assailed
ordinance. Suffice it to state that the objective adopted by the Sangguniang Panlungsod to
promote the constituents’ general welfare in terms of economic benefits cannot override the very
basic rights to life, security and safety of the people. (Social Justice Society Officers v. Lim, G.R.
No. 187836, November 25, 2014)

DUE PROCESS

The right to due process guards against unwarranted encroachment by the

state into the fundamental rights of its citizens. It cannot be invoked in private
controversies involving private parties. A political party is still a private organization,
not a state instrument. The discipline of members by a political party does not involve
the right to life, liberty or property within the meaning of the due process clause.

Petitioners Atienza, et al. argue that their expulsion from the party is not a simple issue of
party membership or discipline; it involves a violation of their constitutionally-protected right to
due process of law. They claim that the NAPOLCO and the NECO should have first summoned
them to a hearing before summarily expelling them from the party. According to Atienza, et al.,
proceedings on party discipline are the equivalent of administrative proceedings and are,
therefore, covered by the due process requirements laid down in Ang Tibay v. Court of Industrial
Relations.

But the requirements of administrative due process do not apply to the internal affairs of
political parties. The due process standards set in Ang Tibay cover only administrative bodies
created by the state and through which certain governmental acts or functions are performed. An
administrative agency or instrumentality contemplates an authority to which the state delegates
governmental power for the performance of a state function. The constitutional limitations that
generally apply to the exercise of the states powers thus, apply too, to administrative bodies.

x x x The Bill of Rights, which guarantees against the taking of life, property, or liberty
without due process under Section 1 is generally a limitation on the states powers in relation to
the rights of its citizens. The right to due process is meant to protect ordinary citizens against
arbitrary government action, but not from acts committed by private individuals or entities. In
the latter case, the specific statutes that provide reliefs from such private acts apply. The right to
due process guards against unwarranted encroachment by the state into the fundamental rights
of its citizens and cannot be invoked in private controversies involving private parties.

Although political parties play an important role in our democratic set-up as an

intermediary between the state and its citizens, it is still a private organization, not a state
instrument. The discipline of members by a political party does not involve the right to life, liberty
or property within the meaning of the due process clause. x x x

But even when recourse to courts of law may be made, courts will ordinarily not interfere
in membership and disciplinary matters within a political party. A political party is free to conduct
its internal affairs, pursuant to its constitutionally-protected right to free association. (Atienza v.
Commission on Elections, G.R. No. 188920, February 16, 2010)

Due process as a protection against Government arbitrariness: The guaranty of

due process of law is a constitutional safeguard against any arbitrariness on the part
of the Government, whether committed by the Legislature, the Executive, or the
Judiciary. This clause has been interpreted as imposing two separate limits on
government, usually called "procedural due process" and "substantive due process."
21 | P a g e
 The guaranty [of due process] is embedded in Article III, Section 1 of the Constitution,
which ordains:

Section 1. No person shall be deprived of life, liberty or property without

due process of law, nor shall any person be denied the equal protection of the laws.

The guaranty of due process of law is a constitutional safeguard against any arbitrariness
on the part of the Government, whether committed by the Legislature, the Executive, or the
Judiciary. xxx

xxx

In City of Manila v. Laguio, Jr., the Court expounded on the aspects of the guaranty of
due process of law as a limitation on the acts of government, viz:

This clause has been interpreted as imposing two separate limits on

government, usually called "procedural due process" and "substantive due
process."

Procedural due process, as the phrase implies, refers to the procedures that
the government must follow before it deprives a person of life, liberty, or property.
Classic procedural due process issues are concerned with that kind of notice and
what form of hearing the government must provide when it takes a particular
action.

Substantive due process, as that phrase connotes, asks whether the

government has an adequate reason for taking away a person’s life, liberty, or
property. In other words, substantive due process looks to whether there is
sufficient justification for the government’s action. Case law in the United States
(U.S.) tells us that whether there is such a justification depends very much on the
level of scrutiny used. For example, if a law is in an area where only rational basis
review is applied, substantive due process is met so long as the law is rationally
related to a legitimate government purpose. But if it is an area where strict scrutiny
is used, such as for protecting fundamental rights, then the government will meet
substantive due process only if it can prove that the law is necessary to achieve a
compelling government purpose.

The police power granted to local government units must always be

exercised with utmost observance of the rights of the people to due process and
equal protection of the law. Such power cannot be exercised whimsically,
arbitrarily or despotically as its exercise is subject to a qualification, limitation or
restriction demanded by the respect and regard due to the prescription of the
fundamental law, particularly those forming part of the Bill of Rights. Individual
rights, it bears emphasis, may be adversely affected only to the extent that may
fairly be required by the legitimate demands of public interest or public welfare.
Due process requires the intrinsic validity of the law in interfering with the rights
of the person to his life, liberty and property.

(Legaspi v. City of Cebu, G.R. No. 159110, December 10, 2013)

Immobilization of illegally parked vehicles by clamping the tires is not a

violation of due process. First, this was done when transgressors were not around at
the time of apprehension, making notice and hearing superfluous. Nor should the lack
of a trial-type hearing prior to the clamping constitute a breach of procedural due
process, because the transgressors have the chance to reverse the apprehensions
through a timely protest which procedure equally satisfies the need for a hearing. In
other words, the prior intervention of a court of law was not indispensable to ensure
a compliance with the guaranty of due process.

To reiterate, the clamping of the illegally parked vehicles was a fair and reasonable way to
enforce the ordinance against its transgressors; otherwise, the transgressors would evade liability
by simply driving away.

The Jabans contend that Ordinance No. 1664, by leaving the confiscation and
immobilization of the motor vehicles to the traffic enforcers or the regular personnel of the
22 | P a g e
Philippine National Police (PNP) instead of to officials exercising judicial authority, was violative
of the constitutional guaranty of due process; that such confiscation and immobilization should
only be after a hearing on the merits by courts of law; and that the immobilization and the
clamping of the cars and motor vehicles by the police or traffic enforcers could be subject to abuse.

On his part, Legaspi likewise contends that Ordinance No. 1664 violated the constitutional
guaranty of due process for being arbitrary and oppressive; and that its provisions conferring
upon the traffic enforcers the absolute discretion to be the enforcers, prosecutors, judges and
collectors all at the same time were vague and ambiguous. xxx

Judged according to the foregoing enunciation of the guaranty of due process of law, the
contentions of the petitioners cannot be sustained. Even under strict scrutiny review, Ordinance
No. 1664 met the substantive tests of validity and constitutionality by its conformity with the
limitations under the Constitution and the statutes, as well as with the requirements of fairness
and reason, and its consistency with public policy.

To us, the terms encroachment and obstacles used in Section 458 of the LGC, supra, were
broad enough to include illegally parked vehicles or whatever else obstructed the streets, alleys
and sidewalks, which were precisely the subject of Ordinance No. 1664 in a vowedly aiming to
ensure "a smooth flow of vehicular traffic in all the streets in the City of Cebu at all times" (Section
1). xxx
Considering that traffic congestions were already retarding the growth and progress in the
population and economic centers of the country xxx. Its adoption was, therefore, in order to fulfill
the compelling government purpose of immediately addressing the burgeoning traffic congestions
caused by illegally parked vehicles obstructing the streets of the City of Cebu.

xxx
The petitioners further assert that drivers or vehicle owners affected by Ordinance No.
1664 like themselves were not accorded the opportunity to protest the clamping, towing, and
impounding of the vehicles, or even to be heard and to explain their side prior to the
immobilization of their vehicles; and that the ordinance was oppressive and arbitrary for that
reason.

The adverse assertions against Ordinance No. 1664 are unwarranted.

Firstly, Ordinance No. 1664 was far from oppressive and arbitrary. Any driver or vehicle
owner whose vehicle was immobilized by clamping could protest such action of a traffic enforcer
or PNP personnel enforcing the ordinance. Section 3 of Ordinance No. 1664, supra, textually
afforded an administrative escape in the form of permitting the release of the immobilized vehicle
upon a protest directly made to the Chairman of CITOM; or to the Chairman of the Committee on
Police, Fire and Penology of the City of Cebu; or to Asst. City Prosecutor Felipe Belciña–officials
named in the ordinance itself. The release could be ordered by any of such officials even without
the payment of the stipulated fine. xxxx Secondly, the immobilization of a vehicle by clamping
pursuant to the ordinance was not necessary if the driver or vehicle owner was around at the time
of the apprehension for illegal parking or obstruction. In that situation, the enforcer would simply
either require the driver to move the vehicle or issue a traffic citation should the latter persist in
his violation. The clamping would happen only to prevent the transgress or from using the vehicle
itself to escape the due sanctions. And, lastly, the towing away of the immobilized vehicle was not
equivalent to a summary impounding, but designed to prevent the immobilized vehicle from
obstructing traffic in the vicinity of the apprehension and thereby ensure the smooth flow of
traffic. The owner of the towed vehicle would not be deprived of his property.

In fine, the circumstances set forth herein indicate that Ordinance No. 1664 complied with
the elements of fairness and reasonableness.

Did Ordinance No. 1664 meet the requirements of procedural due process?

Notice and hearing are the essential requirements of procedural due process. Yet, there
are many instances under our laws in which the absence of one or both of such requirements is
not necessarily a denial or deprivation of due process. Among the instances are the cancellation
of the passport of a person being sought for the commission of a crime, the preventive suspension
of a civil servant facing administrative charges, the distraint of properties to answer for tax
delinquencies, the padlocking of restaurants found to be unsanitary or of theaters showing
obscene movies, and the abatement of nuisance per se. Add to them the arrest of a person in
flagrante delicto.

23 | P a g e
 The clamping of the petitioners’ vehicles pursuant to Ordinance No. 1664 (and of the
vehicles of others similarly situated) was of the same character as the aforecited established
exceptions dispensing with notice and hearing. As already said, the immobilization of illegally
parked vehicles by clamping the tires was necessary because the transgressors were not around at
the time of apprehension. Under such circumstance, notice and hearing would be superfluous.
Nor should the lack of a trial-type hearing prior to the clamping constitute a breach of procedural
due process, forgiving the transgressors the chance to reverse the apprehensions through a timely
protest could equally satisfy the need for a hearing. In other words, the prior intervention of a
court of law was not indispensable to ensure a compliance with the guaranty of due process.

To reiterate, the clamping of the illegally parked vehicles was a fair and reasonable way to
enforce the ordinance against its transgressors; otherwise, the transgressors would evade liability
by simply driving away. (Legaspi v. City of Cebu, G.R. No. 159110, December 10, 2013)

In order that a particular act may not be impugned as violative of the due
process clause, there must be compliance with both the substantive and the
procedural requirements thereof. Substantive due process refers to the intrinsic
validity of a law that interferes with the rights of a person to his property. Procedural
due process means conformity with the standard of fair play and without arbitrariness
on the part of those who are called upon to administer it. Administrative proceedings
are not exempt from basic and fundamental procedural principles, such as the right
to due process.

Now, one of the guarantees sacrosanct in this jurisdiction is that no person shall be
deprived of life, liberty or property without due process of law. An essential component of the Bill
of Rights, the Due Process Clause, undoubtedly occupies a position of primacy in the fundamental
law.

Due process of law has two aspects: substantive and procedural due process. In order that
a particular act may not be impugned as violative of the due process clause, there must be
compliance with both the substantive and the procedural requirements thereof.

Substantive due process refers to the intrinsic validity of a law that interferes with the
rights of a person to his property. Procedural due process, on the other hand, means compliance
with the procedures or steps, even periods, prescribed by the statute, in conformity with the
standard of fair play and without arbitrariness on the part of those who are called upon to
administer it.

Although administrative procedural rules are less stringent and often applied more
liberally, administrative proceedings are not exempt from basic and fundamental procedural
principles, such as the right to due process in investigations and hearings.

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

1) The right to a hearing, which includes the right to present one's case and submit
evidence in support thereof;

2) The tribunal must consider the evidence presented;

3) The decision must have something to support itself;

4) The evidence must be substantial;

5) The decision must be rendered on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected;

6) The tribunal or body or any of its judges must act on its or his own independent
consideration of the law and facts of the controversy and not simply accept the views of a
subordinate in arriving at a decision; and

7) The board or body should, in all controversial questions, render its decision in such a
manner that the parties to the proceeding can know the various issues involved, and the reason
for the decision rendered. (Alliance for the Family v. Garin, G.R. No. 217872, August 24, 2016)

24 | P a g e
 Although the FDA is the primary agency that determines whether a
contraceptive drug or certain device has no abortifacient effects, the FDA should allow
its findings and conclusion to be questioned and those who oppose the same must be
given a genuine opportunity to be heard.

After an assessment of the undisputed facts, the Court finds that the FDA certified,
procured and administered such contraceptive drugs and devices, without the observance of the
basic tenets of due process, without notice and without public hearing, despite the constant
opposition from the petitioners. From the records, it appears that other than the notice inviting
stakeholders to apply for certification/re-certification of their reproductive health products, there
was no showing that the respondents notified the oppositors and conducted a hearing on the
applications and oppositions submitted.

Rather than provide concrete evidence to meet the petitioners' opposition, the
respondents simply relied on their challenge questioning the propriety of the subject petition on
technical and procedural grounds. The Court notes that even the letters submitted by the
petitioners to the FDA and the DOH seeking information on the actions taken by the agencies
regarding their opposition were left unanswered as if they did not exist at all. xxxx

Indeed, although the law tasks the FDA as the primary agency to determine whether a
contraceptive drug or certain device has no abortifacient effects, its findings and conclusion
should be allowed to be questioned and those who oppose the same must be given a genuine
opportunity to be heard in their stance. After all, under Section 4(k)56 of R.A. No. 3720, as
amended by R.A. No. 9711, the FDA is mandated to order the ban, recall and/or withdrawal of any
health product found to have caused death, serious illness or serious injury to a consumer or
patient, or found to be imminently injurious, unsafe, dangerous, or grossly deceptive, after due
process. (Alliance for the Family v. Garin, G.R. No. 217872, August 24, 2016)

A decision rendered in disregard of the right to due process is void for lack of
jurisdiction.

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

Verily, it is a cardinal precept that where there is a violation of basic constitutional rights,
the courts are ousted from their jurisdiction. The violation of a party's right to due process raises
a serious jurisdictional issue which cannot be glossed over or disregarded at will. Where the denial
of the fundamental right to due process is apparent, a decision rendered in disregard of
that right is void for lack of jurisdiction. This rule is equally true in quasi-judicial and
administrative proceedings, for the constitutional guarantee that no man shall be deprived of life,
liberty, or property without due process is unqualified by the type of proceedings (whether judicial
or administrative) where he stands to lose the same. (Alliance for the Family v. Garin, G.R. No.
217872, August 24, 2016)

In administrative proceedings, due process is satisfied when a person is

notified of the charge against him and given an opportunity to explain or defend
oneself. The essence of due process, therefore, as applied to administrative
proceedings, is an opportunity to explain one's side, or an opportunity to seek a
reconsideration of the action or ruling complained of.

Section 1, Article III of the 1987 Constitution guarantees that:

No person shall be deprived of life, liberty, or property without due

process of law nor shall any person be denied the equal protection of the law.

Procedural due process is that which hears before it condemns, which proceeds upon
inquiry and renders judgment only after trial. It contemplates notice and opportunity to be heard
before judgment is rendered affecting one's person or property.

In administrative proceedings, due process is satisfied when a person is notified of the

charge against him and given an opportunity to explain or defend oneself. In such proceedings,
the filing of charges and giving reasonable opportunity for the person so charged to answer the
accusations against him constitute the minimum requirements of due process. In Ang Tibay v.
25 | P a g e
Court of Industrial Relations, the Court stated that one of the requisites for due process
compliance was that the decision must be rendered on the basis of the evidence presented at the
hearing, or at least contained in the record and disclosed to the parties affected.

The essence of due process, therefore, as applied to administrative proceedings, is an

opportunity to explain one's side, or an opportunity to seek a reconsideration of the action or
ruling complained of. Thus, a violation of that right occurs when a court or tribunal rules against
a party without giving the person the opportunity to be heard.

In this case, Conti was never given an opportunity to air his side. He was not furnished
with a copy of the Ombudsman order requiring him to file a counter-affidavit. This was admitted
by the Ombudsman as the records bore that the notices were sent to the PCGG when he was no
longer a Commissioner and to Conti's previous address in Araneta Avenue, Quezon City, which
were returned unserved with a notation that the addressee moved and left with no forwarding
address. This suffices as proof that Conti was not properly apprised of the cases against him.

The Court disagrees with the Ombudsman in citing the case of Ruivivar as Conti's
situation was not similar to the cited case. In Ruivivar, the petitioner filed her motion for
reconsideration and the Ombudsman acted on it, albeit belatedly, by issuing an Order that she be
furnished with all the pleadings and other pertinent documents and allowing her to file, within
ten (10) days from receipt, such pleading which she deemed fit under the circumstances. In the
said case, however, the petitioner still failed to refute the charges against her. (Office of the
Ombudsman v. Conti, G.R. No. 221296, February 22, 2017)

A decision rendered without due process is void ab initio and may be attacked
directly or collaterally.

The doctrine consistently adhered to by this Court is that a decision rendered without due
process is void ab initio and may be attacked directly or collaterally. A decision is void for lack of
due process if, as a result, a party is deprived of the opportunity to be heard. "The cardinal precept
is that where there is a violation of basic constitutional rights, courts are ousted of their
jurisdiction. xxxx

Consequently, such nullity not only applies to the entire judgment rendered by the
Ombudsman but likewise nullifies the judgment rendered by the CA reversing the findings of the
Ombudsman as to Conti' s liability. With the violation of Conti's right to due process, it is therefore
plain, that any judgment arising from it is void, whether the same be favorable to him or
otherwise. (Office of the Ombudsman v. Conti, G.R. No. 221296, February 22, 2017)

Due process and the void-for-vagueness doctrine: 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. It
is repugnant to the Constitution in two (2) respects: (1) it violates due process for
failure to accord persons, especially the parties targeted by it, fair notice of the
conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out
its provisions and becomes an arbitrary flexing of the Government muscle."
Petitioners must properly identify a) any provision in the law, which, because of its
vague terminology, fails to provide fair warning and notice to the public of what is
prohibited or required so that one may act accordingly; or b) an ambiguous provision
in the law that allows enforcement authorities to second-guess if a particular conduct
is prohibited or not prohibited.

[P]etitioners submit that the Curfew Ordinances are void for not containing sufficient
enforcement parameters, which leaves the enforcing authorities with unbridled discretion to carry
out their provisions. They claim that the lack of procedural guidelines in these issuances led to the
questioning of petitioners Ronel and Mark Leo, even though they were already of legal age. They
maintain that the enforcing authorities apprehended the suspected curfew offenders based only
on their physical appearances and, thus, acted arbitrarily. Meanwhile, although they conceded
that the Quezon City Ordinance requires enforcers to determine the age of the child, they submit
that nowhere does the said ordinance require the law enforcers to ask for proof or identification
of the child to show his age.

The arguments are untenable.

26 | P a g e
 "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. It is repugnant to the Constitution in two (2) respects: (1) it violates due
process for failure to accord persons, especially the parties targeted by it, fair notice
of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing of the Government
muscle."

In this case, petitioners' invocation of the void for vagueness doctrine is improper,
considering that they do not properly identify any provision in any of the Curfew Ordinances,
which, because of its vague terminology, fails to provide fair warning and notice to the public of
what is prohibited or required so that one may act accordingly. The void for vagueness
doctrine is premised on due process considerations, which are absent from this
particular claim. xxx

Essentially, petitioners only bewail the lack of enforcement parameters to guide the local
authorities in the proper apprehension of suspected curfew offenders. They do not assert any
confusion as to what conduct the subject ordinances prohibit or not prohibit but
only point to the ordinances' lack of enforcement guidelines. The mechanisms related
to the implementation of the Curfew Ordinances are, however, matters of policy that are best left
for the political branches of government to resolve. Verily, the objective of curbing unbridled
enforcement is not the sole consideration in a void for vagueness analysis; rather, petitioners must
show that this perceived danger of unbridled enforcement stems from an ambiguous provision in
the law that allows enforcement authorities to second-guess if a particular conduct is prohibited
or not prohibited. In this regard, that ambiguous provision of law contravenes due process
because agents of the government cannot reasonably decipher what conduct the law permits
and/or forbids. In Bykofsky v. Borough of Middletown, it was ratiocinated that:

A vague law impermissibly delegates basic policy matters to policemen, judges, and juries
for resolution on ad hoc and subjective basis, and vague standards result in erratic and arbitrary
application based on individual impressions and personal predilections.

As above-mentioned, petitioners fail to point out any ambiguous standard in any of the
provisions of the Curfew Ordinances, but rather, lament the lack of detail on how the age of a
suspected minor would be determined. Thus, without any correlation to any vague legal provision,
the Curfew Ordinances cannot be stricken down under the void for vagueness doctrine. (Samahan
ng mga Progresibong Kabataan v. Quezon City, G.R. No. 225442, August 8, 2017)

The opportunity to be heard through motion for reconsideration is sufficient

compliance with due process.

The essence of due process is simply the opportunity to be heard. What the law prohibits
is not the absence of previous notice but its absolute absence and lack of opportunity to be heard.
Sufficient compliance with the requirements of due process exists when a party is given a chance
to be heard through his motion for reconsideration.

In the present case, we do not find it disputed that the respondents filed with the Secretary
of Justice a motion for reconsideration of her resolution. Therefore, any initial defect in due
process, if any, was cured by the remedy the respondents availed of. (Shu v. Dee, G.R. No. 182573,
April 23, 2014)

There is no violation of due process in an NBI investigation if the respondents

are not given an opportunity to file an answer or submit counter-evidence. The NBI
does not exercise judicial or quasi-judicial powers and its findings are merely
recommendatory.

[I]n the proceedings before the NBI, the respondents were not furnished a copy of the
complaint and were not likewise required to file their answer or to present countervailing
evidence. All the evidence at the NBI level were solely provided by the petitioner.

xxx

The respondents’ Comment and Memorandum, they reiterated their argument that they
were prevented from participating in the proceedings before the NBI and the Secretary of Justice,
resulting in the denial of their right to due process.
27 | P a g e
 xxx

On the respondents’ allegation that they were denied due process during the NBI
investigation, we stress that the functions of this agency are merely investigatory and
informational in nature. It has no judicial or quasi-judicial powers and is incapable of granting
any relief to any party. It cannot even determine probable cause. The NBI is an investigative
agency whose findings are merely recommendatory. It undertakes investigation of crimes upon
its own initiative or as public welfare may require in accordance with its mandate. It also renders
assistance when requested in the investigation or detection of crimes in order to prosecute the
persons responsible.

Since the NBI’s findings were merely recommendatory, we find that no denial of the
respondents’ due process right could have taken place; the NBI’s findings were still subject to the
prosecutor’s and the Secretary of Justice’s actions for purposes of finding the existence of probable
cause. x x x

The respondents were not likewise denied their right to due process when the NBI issued
the questioned documents report. We note that this report merely stated that the signatures
appearing on the two deeds and in the petitioner’s submitted sample signatures were not written
by one and the same person. Notably, there was no categorical finding in the questioned
documents report that the respondents falsified the documents. This report, too, was procured
during the conduct of the NBI’s investigation at the petitioner’s request for assistance in the
investigation of the alleged crime of falsification. The report is inconclusive and does not prevent
the respondents from securing a separate documents examination by handwriting experts
based on their own evidence. (Shu v. Dee, G.R. No. 182573, April 23, 2014)

The requirements for due process in administrative cases set in the Ang Tibay
case do not apply to preliminary investigations. The purpose of the Office of the
Ombudsman in conducting a preliminary investigation is to determine probable cause
for filing an information, and not to make a final adjudication of the rights and
obligations of the parties. The Ombudsman and the prosecution service are inherently
the fact-finder, investigator, hearing officer, judge and jury of the respondent in
preliminary investigations. There is nothing unconstitutional with this procedure
because this is merely an Executive function, a part of the law enforcement process
leading to trial in court.

We likewise take exception to Justice Brion’s assertion that "the due process standards
that at the very least should be considered in the conduct of a preliminary investigation are those
that this Court first articulated in Ang Tibay v. Court of Industrial Relations [Ang Tibay]." Simply
put, the Ang Tibay guidelines for administrative cases do not apply to preliminary investigations
in criminal cases. An application of the Ang Tibay guidelines to preliminary investigations will
have absurd and disastrous consequences.

Ang Tibay enumerated the constitutional requirements of due process, which Ang Tibay
described as the "fundamental and essential requirements of due process in trials and
investigations of an administrative character." These requirements are "fundamental and
essential" because without these, there is no due process as mandated by the Constitution. These
"fundamental and essential requirements" cannot be taken away by legislation because they are
part of constitutional due process. These "fundamental and essential requirements" are:
(1) The first of these rights is the right to a hearing, which includes the right of the
party interested or affected to present his own case and submit evidence in support thereof.
x x x.

(2) Not only must the party be given an opportunity to present his case and adduce
evidence tending to establish the rights which he asserts but the tribunal must consider the
evidence presented. x x x.

(3) "While the duty to deliberate does not impose the obligation to decide right, it does
imply a necessity which cannot be disregarded, namely, that of having something to support
its decision. A decision with absolutely nothing to support it is a nullity, x x x."

(4) Not only must there be some evidence to support a finding or conclusion, but the
evidence must be "substantial." "Substantial evidence is more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." x x x.

28 | P a g e
 (5) The decision must be rendered on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected. x x x.

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or
his own independent consideration of the law and facts of the controversy, and not simply
accept the views of a subordinate in arriving at a decision. x x x.

(7) The Court of Industrial Relations should, in all controversial questions, render its
decision in sucha manner that the parties to the proceeding can know the various issues
involved, and the reasons for the decisions rendered. The performance of this duty is
inseparable from the authority conferred upon it.

The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA (GSIS): "what Ang
Tibay failed to explicitly state was, prescinding from the general principles governing due process,
the requirement of an impartial tribunal which, needless to say, dictates that one called upon to
resolve a dispute may not sit as judge and jury simultaneously, neither may he review his decision
on appeal." The GSIS clarification affirms the non applicability of the Ang Tibay guidelines to
preliminary investigations in criminal cases: The investigating officer, which is the role that the
Office of the Ombudsman plays in the investigation and prosecution of government personnel,
will never be the impartial tribunal required in Ang Tibay, as amplified in GSIS. The purpose of
the Office of the Ombudsman in conducting a preliminary investigation, after conducting its own
fact finding investigation, is to determine probable cause for filing an information, and not to m
ake a final adjudication of the rights and obligations of the parties under the law, which is the
purpose of the guidelines in Ang Tibay. The investigating officer investigates, determines
probable cause, and prosecutes the criminal case after filing the corresponding information.

x x x The Ombudsman and the prosecution service under the control and supervision of
the Secretary of the Department of Justice are inherently the fact-finder, investigator, hearing
officer, judge and jury of the respondent in preliminary investigations. Obviously, this procedure
cannot comply with Ang Tibay, as amplified in GSIS. However, there is nothing unconstitutional
with this procedure because this is merely an Executive function, a part of the law enforcement
process leading to trial in court where the requirements mandated in Ang Tibay, as amplified in
GSIS, will apply. This has been the procedure under the 1935, 1973 and 1987 Constitutions. To
now rule that Ang Tibay, as amplified in GSIS, should apply to preliminary investigations will
mean that all past and present preliminary investigations are in gross violation of constitutional
due process. (Estrada v. Office of the Ombudsman, G.R. Nos. 212140-41, January 21, 2015)

The ex-parte issuance of temporary protection order (TPO) - before notice and
hearing - is valid because time is of the essence to prevent further violence. Moreover,
after a TPO is issued, the respondent is afforded an opportunity to present his side.

R.A. 9262 is not violative of the due process clause of the Constitution. Petitioner bewails
the disregard of R.A. 9262, specifically in the issuance of [Protection Orders], of all protections
afforded by the due process clause of the Constitution. x x x

A protection order is an order issued to prevent further acts of violence against women
and their children, their family or household members, and to grant other necessary reliefs. Its
purpose is to safeguard the offended parties from further harm, minimize any disruption in their
daily life and facilitate the opportunity and ability to regain control of their life.

“The scope of reliefs in protection orders is broadened to ensure that the victim or offended
party is afforded all the remedies necessary to curtail access by a perpetrator to the victim. This
serves to safeguard the victim from greater risk of violence; to accord the victim and any
designated family or household member safety in the family residence, and to prevent the
perpetrator from committing acts that jeopardize the employment and support of the victim. x x
x”

The rules require that petitions for protection order be in writing, signed and verified by
the petitioner thereby undertaking full responsibility, criminal or civil, for every allegation
therein. Since “time is of the essence in cases of VAWC if further violence is to be prevented,” the
court is authorized to issue ex parte a TPO after raffle but before notice and hearing when the life,
limb or property of the victim is in jeopardy and there is reasonable ground to believe that the
order is necessary to protect the victim from the immediate and imminent danger of VAWC or to
prevent such violence, which is about to recur.

There need not be any fear that the judge may have no rational basis to issue an ex parte
order. The victim is required not only to verify the allegations in the petition, but also to attach
her witnesses' affidavits to the petition.

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 The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due
process. x x x [T]he victim of VAWC may already have suffered harrowing experiences in the
hands of her tormentor, and possibly even death, if notice and hearing were required before such
acts could be prevented. It is a constitutional commonplace that the ordinary requirements of
procedural due process must yield to the necessities of protecting vital public interests, among
which is protection of women and children from violence and threats to their personal safety and
security.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise
order that notice be immediately given to the respondent directing him to file an opposition within
five (5) days from service. x x x The opposition to the petition which the respondent himself shall
verify, must be accompanied by the affidavits of witnesses and shall show cause why a temporary
or permanent protection order should not be issued. x x x [T]he respondent of a petition for
protection order should be apprised of the charges imputed to him and afforded an opportunity
to present his side. x x x The essence of due process is to be found in the reasonable opportunity
to be heard and submit any evidence one may have in support of one's defense. (Garcia v. Drilon,
G.R. No. 179267, June 25, 2013)

“To be heard" does not only mean verbal arguments in court; one may be heard
also through pleadings.

"To be heard" does not only mean verbal arguments in court; one may be heard also
through pleadings. Where opportunity to be heard, either through oral arguments or pleadings,
is accorded, there is no denial of procedural due process. (Garcia v. Drilon, G.R. No. 179267, June
25, 2013)

Void for vagueness doctrine: Vague laws are void because first, these violate
due process for failure to accord persons fair notice of the conduct to avoid; second,
these leave law enforcers unbridled discretion in carrying out its provisions.

The petitioners contend that the RH Law suffers from vagueness and, thus violates the due
process clause of the Constitution. According to them, Section 23 (a)(l) mentions a "private health
service provider" among those who may be held punishable but does not define who is a "private
health care service provider." They argue that confusion further results since Section 7 only makes
reference to a "private health care institution."

xxx

The arguments fail to persuade.

A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess its meaning and differ as to its
application. It is repugnant to the Constitution in two respects: (1) it violates due process for
failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid;
and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle. Moreover, in determining whether the words used in
a statute are vague, words must not only be taken in accordance with their plain meaning alone,
but also in relation to other parts of the statute. It is a rule that every part of the statute must be
interpreted with reference to the context, that is, every part of it must be construed together with
the other parts and kept subservient to the general intent of the whole enactment.

As correctly noted by the OSG, in determining the definition of "private health care service
provider," reference must be made to Section 4(n) of the RH Law which defines a "public health
service provider," xxx

Further, the use of the term "private health care institution" in Section 7 of the law, instead
of "private health care service provider," should not be a cause of confusion for the obvious reason
that they are used synonymously. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

The JBC policy requiring five years of service as judges of first-level courts
before they can qualify as applicants to second-level courts should have been
published, because it seeks to implement a constitutional provision requiring proven
competence from members of the judiciary.

The petitioner averred that the assailed policy [requiring five years of service as judges of
first-level courts before they can qualify as applicants to second-level courts] violates procedural
30 | P a g e
due process for lack of publication and non-submission to the University of the Philippines Law
Center Office of the National Administrative Register (ONAR). x x x

Contrary to the petitioner’s contention, the assailed JBC policy need not be filed in the
ONAR because the publication requirement in the ONAR is confined to issuances of
administrative agencies under the Executive branch of the government. Since the JBC is a body
under the supervision of the Supreme Court, it is not covered by the publication requirements of
the Administrative Code.

Nevertheless, the assailed JBC policy requiring five years of service as judges of first-level
courts before they can qualify as applicants to second-level courts should have been published. As
a general rule, publication is indispensable in order that all statutes, including administrative
rules that are intended to enforce or implement existing laws, attain binding force and effect.
There are, however, several exceptions to the requirement of publication, such as interpretative
regulations and those merely internal in nature, which regulate only the personnel of the
administrative agency and not the public. Neither is publication required of the so-called letters
of instructions issued by administrative superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of their duties.

Here, the assailed JBC policy does not fall within the administrative rules and regulations
exempted from the publication requirement. The assailed policy involves a qualification standard
by which the JBC shall determine proven competence of an applicant. It is not an internal
regulation, because if it were, it would regulate and affect only the members of the JBC and their
staff. Notably, the selection process involves a call to lawyers who meet the qualifications in the
Constitution and are willing to serve in the Judiciary to apply to these vacant positions. Thus, it is
but a natural consequence thereof that potential applicants be informed of the requirements to
the judicial positions, so that they would be able to prepare for and comply with them.

The Court also noted the fact that in JBC-009, otherwise known as the Rules of the Judicial
and Bar Council, the JBC had put its criteria in writing and listed the guidelines in determining
competence, independence, integrity and probity. x x x

The express declaration of these guidelines in JBC-009, which have been duly published
on the website of the JBC and in a newspaper of general circulation suggests that the JBC is aware
that these are not mere internal rules, but are rules implementing the Constitution that should be
published. Thus, if the JBC were so-minded to add special guidelines for determining competence
of applicants for RTC judges, then it could and should have amended its rules and published the
same. This, the JBC did not do as JBC-009 and its amendatory rule do not have special guidelines
for applicants to the RTC.

Moreover, jurisprudence has held that rules implementing a statute should be published.
Thus, by analogy, publication is also required for the five-year requirement because it seeks to
implement a constitutional provision requiring proven competence from members of the
judiciary. (Villanueva v. Judicial and Bar Council, G.R. No. 211833, April 7, 2015)

Counsel’s mistake and due process: The general rule is that a client is bound by
the acts, even mistakes, of his counsel in the realm of procedural technique, unless
the reckless or gross negligence of counsel deprives the client of due process of law.
The negligence of counsel must be so gross that the client is deprived of his day in
court. To properly claim gross negligence on the part of the counsel, the petitioner
must show that the counsel was guilty of nothing short of a clear abandonment of the
client’s cause.

As to petitioner’s claim that his right to due process was denied due to his former counsel’s
error, abuse of discretion or gross incompetence, We find no merit in this claim. Time and again,
this Court has ruled that a client is bound by his counsel’s conduct, negligence and mistake in
handling a case, and to allow a client to disown his counsel’s conduct would render proceedings
indefinite, tentative, and subject to reopening by the mere subterfuge of replacing counsel. While
this rule has recognized exceptions, We find that there is no reason for this Court to deviate from
the findings of the Sandiganbayan. We held in Gotesco Properties, Inc. v. Moral:
The general rule is that a client is bound by the acts, even mistakes, of his counsel in
the realm of procedural technique. The basis is the tenet that an act performed by counsel
within the scope of a "general or implied authority" is regarded as an act of the client. While
the application of this general rule certainly depends upon the surrounding circumstances of
a given case, there are exceptions recognized by this Court: "(1) where reckless or gross
negligence of counsel deprives the client of due process of law; (2) when its application will

31 | P a g e
 result in outright deprivation of the client’s liberty or property; or (3) where the interests of
justice so require."

The present case does not fall under the said exceptions. In Amil v. Court of Appeals,
the Court held that "to fall within the exceptional circumstance relied upon x x x, it must be
shown that the negligence of counsel must be so gross that the client is deprived of his day in
court. Thus, where a party was given the opportunity to defend its interests in due course, it
cannot be said to have been denied due process of law, for this opportunity to be heard is the
very essence of due process." To properly claim gross negligence on the part of the counsel,
the petitioner must show that the counsel was guilty of nothing short of a clear abandonment
of the client’s cause.

In the present case, the Sandiganbayan correctly denied petitioner’s motion to re-open the
proceedings on the ground of violation of his due process, to wit:
x x x Accused-movant Uyboco cannot attribute any serious misjudgment or fault or
gross incompetence on his counsel alone as the decision not to present further evidence in
his defense bears his conformity as shown by his signature in the said manifestation.

x x x While petitioner claims that he was incorrectly advised by his former counsel that the
presentation of evidence is no longer necessary, this unfortunate mistake cannot qualify as gross
negligence or incompetence that would necessitate a reopening of the proceedings. (Uyboco v.
People, G.R. No. 211703, December 10, 2014)

The failure of the government to produce the semen specimen from a rape
victim does not entitle the accused in a rape case to outright acquittal on the ground
of violation of his right to due process. Due process does not require the State to
preserve the semen specimen from a rape victim although it might be useful to the
accused, unless the latter is able to show bad faith on the part of the prosecution or
the police.

Webb claims, citing Brady v. Maryland, that he is entitled to outright acquittal on the
ground of violation of his right to due process given the States failure to produce on order of the
Court either by negligence or willful suppression the semen specimen taken from Carmela.

The medical evidence clearly established that Carmela was raped and, consistent with this,
semen specimen was found in her. It is true that Alfaro identified Webb in her testimony as
Carmelas rapist and killer but serious questions had been raised about her credibility. At the very
least, there exists a possibility that Alfaro had lied. On the other hand, the semen specimen taken
from Carmela cannot possibly lie. x x x

Still, Webb is not entitled to acquittal for the failure of the State to produce the semen
specimen at this late stage. For one thing, the ruling in Brady v. Maryland that he cites has long
be overtaken by the decision in Arizona v. Youngblood, where the U.S. Supreme Court held that
due process does not require the State to preserve the semen specimen although it might be useful
to the accused unless the latter is able to show bad faith on the part of the prosecution or the
police. Here, the State presented a medical expert who testified on the existence of the specimen
and Webb in fact sought to have the same subjected to DNA test.

For, another, when Webb raised the DNA issue, the rule governing DNA evidence did not
yet exist, the country did not yet have the technology for conducting the test, and no Philippine
precedent had as yet recognized its admissibility as evidence. Consequently, the idea of keeping
the specimen secure even after the trial court rejected the motion for DNA testing did not come
up. Indeed, neither Webb nor his co-accused brought up the matter of preserving the specimen in
the meantime. (Alejano v. People, G.R. No. 176389, December 14, 2010)

Due process for military academy cadets: A cadet facing dismissal from the
military academy for misconduct has constitutionally protected private interests (life,
liberty, or property). Hence, disciplinary proceedings conducted within the bounds of
procedural due process is a must. The PMA is not immune from the strictures of due
process.

To say that a PMA cadet surrenders his fundamental human rights, including the right
to due process, is, for petitioners, contrary to the provisions of Section 3, Article II of the 1987
Constitution, Executive Order (E.O.) No. 178 (as amended by E.O. No. 1005), AFP Code of Ethics,
Oath of Cadet Corps to the Honor Code and the Honor System, military professionalism, and, in

32 | P a g e
general, military culture. x x x Further, under the doctrine of constitutional supremacy, they can
never overpower or defy the 1987 Constitution since the former should yield to the latter.
Petitioners stress that the statement that "a cadet can be compelled to surrender some civil rights
and liberties in order for the Code and System to be implemented" simply pertains to what cadets
have to sacrifice in order to prove that they are men or women of integrity and honor, such as the
right to entertain vices and the right to freely choose what they want to say or do. In the context
of disciplinary investigation, it does not contemplate a surrender of the right to due process but,
at most, refers to the cadets' rights to privacy and to remain silent.

We concur with the stand of petitioners.

Of course, a student at a military academy must be prepared to subordinate his private

interests for the proper functioning of the educational institution he attends to, one that is with a
greater degree than a student at a civilian public school. x x x

x x x [A] cadet facing dismissal from the military academy for misconduct has
constitutionally protected private interests (life, liberty, or property); hence, disciplinary
proceedings conducted within the bounds of procedural due process is a must. For that reason,
the PMA is not immune from the strictures of due process. Where a person's good name,
reputation, honor, or integrity is at stake because of what the government is doing to him, the
minimal requirements of the due process clause must be satisfied. Likewise, the cadet faces far
more severe sanctions of being expelled from a course of college instruction which he or she has
pursued with a view to becoming a career officer and of probably being forever denied that career.

The cases of Gudani and Kapunan, Jr. are inapplicable as they do not specifically pertain
to dismissal proceedings of a cadet in a military academy due to honor violation. In Gudani, the
Court denied the petition that sought to annul the directive from then President Gloria
Macapagal-Arroyo, which' enjoined petitioners from testifying before the Congress without her
consent. We ruled that petitioners may be subjected to military discipline for their defiance of a
direct order of the AFP Chief of Staff. On the other hand, in Kapunan, Jr., this Court upheld the
restriction imposed on petitioner since the conditions for his "house arrest" (particularly, that he
may not issue any press statements or give any press conference during the period of his
detention) are justified by the requirements of military discipline. In these two cases, the
constitutional rights to information, transparency in matters of public concern, and to free speech
- not to due process clause - were restricted to better serve the greater military purpose. (Cudia v.
The Superintendent of the Philippine Military Academy, G.R. No. 211362, February 24, 2015)

Procedural safeguards in student disciplinary cases: Due process in disciplinary

cases involving students does not entail proceedings and hearings similar to those in
courts of justice. Proceedings may be summary; cross-examination is not an essential
part of the investigation or hearing; and the required proof in a student disciplinary
action is only substantial evidence. Official action must meet minimum standards of
fairness to the individual, which generally encompass the right of adequate notice
and a meaningful opportunity to be heard.

Ateneo de Manila University v. Capulong x x x held that although both Ang Tibay and
Guzman essentially deal with the requirements of due process, the latter case is more apropos
since it specifically deals with the minimum standards to be satisfied in the imposition of
disciplinary sanctions in academic institutions. That Guzman is the authority on the procedural
rights of students in disciplinary cases was reaffirmed by the Court in the fairly recent case of Go
v. Colegio De San Juan De Letran.

In Guzman, the Court held that there are minimum standards which must be met to satisfy
the demands of procedural due process, to wit:

(1) the students must be informed in writing of the nature and cause of any accusation
against them; (2) they shall have the right to answer the charges against them, with the assistance
of counsel, if desired; (3) they shall be informed of the evidence against them; ( 4) they shall have
the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by
the investigating committee or official designated by the school authorities to hear and decide the
case.

We have been consistent in reminding that due process in disciplinary cases involving
students does not entail proceedings and hearings similar to those prescribed for actions and
proceedings in courts of justice; that the proceedings may be summary; that cross-examination is
not an essential part of the investigation or hearing; and that the required proof in a student
disciplinary action, which is an administrative case, is neither proof beyond reasonable doubt nor
33 | P a g e
preponderance of evidence but only substantial evidence or "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."

What is crucial is that official action must meet minimum standards of fairness to the
individual, which generally encompass the right of adequate notice and a meaningful opportunity
to be heard. As held in De La Salle University, Inc. v. Court of Appeals:
Notice and hearing is the bulwark of administrative due process, the right to which
is among the primary rights that must be respected even in administrative proceedings. The
essence of due process is simply an opportunity to be heard, or as applied to administrative
proceedings, an opportunity to explain one's side or an opportunity to seek reconsideration
of the action or ruling complained of. So long as the party is given the opportunity to advocate
her cause or defend her interest in due course, it cannot be said that there was denial of due
process.

A formal trial-type hearing is not, at all times and in all instances, essential to due
process - it is enough that the parties are given a fair and reasonable opportunity to explain
their respective sides of the controversy and to present supporting evidence on which a fair
decision can be based. "To be heard" does not only mean presentation of testimonial evidence
in court - one may also be heard through pleadings and where the opportunity to be heard
through pleadings is accorded, there is no denial of due process.

The PMA Honor Code explicitly recognizes that an administrative proceeding conducted
to investigate a cadet's honor violation need not be clothed with the attributes of a judicial
proceeding.

xxx

In Andrews, the U.S. Court of Appeals held that Wasson and Hagopian are equally
controlling in cases where cadets were separated from the military academy for violation of the
Honor Code. Following the two previous cases, it was ruled that in order to be proper and immune
from constitutional infirmity, a cadet who is sought to be dismissed or separated from the
academy must be afforded a hearing, be apprised of the specific charges against him, and be given
an adequate opportunity to present his or her defense both from the point of view of time and the
use of witnesses and other evidence. Conspicuously, these vital conditions are not too far from
what We have already set in Guzman and the subsequent rulings in Alcuaz v. Philippine School
of Business Administration and De La Salle University, Inc. v. Court of Appeals.

In this case, the investigation of Cadet 1 CL Cudia' s Honor Code violation followed the
prescribed procedure and existing practices in the PMA. He was notified of the Honor Report
from Maj. Hindang. He was then given the opportunity to explain the report against him. He was
informed about his options and the entire process that the case would undergo. The preliminary
investigation immediately followed after he replied and submitted a written explanation. Upon its
completion, the investigating team submitted a written report together with its recommendation
to the HC Chairman. The HC thereafter reviewed the findings and recommendations. When the
honor case was submitted for formal investigation, a new team was assigned to conduct the
hearing. During the formal investigation/hearing, he was informed of the charge against him and
given the right to enter his plea. He had the chance to explain his side, confront the witnesses
against him, and present evidence in his behalf. After a thorough discussion of the HC voting
members, he was found to have violated the ' Honor Code. Thereafter, the guilty verdict
underwent the review process at the Academy level - from the OIC of the HC, to the SJA, to the
Commandant of Cadets, and to the PMA Superintendent. A separate investigation was also
conducted by the HTG. Then, upon the directive of the AFP-GHQ to reinvestigate the case, a
review was conducted by the CRAB. Further, a Fact-Finding Board/Investigation Body composed
of the CRAB members and the PMA senior officers was constituted to conduct a deliberate
investigation of the case. Finally, he had the opportunity to appeal to the President. Sadly for him,
all had issued unfavorable rulings. (Cudia v. The Superintendent of the Philippine Military
Academy, G.R. No. 211362, February 24, 2015)

EQUAL PROTECTION

The requirements for a valid and reasonable classification are: (1) it must rest
on substantial distinctions; (2) it must be germane to the purpose of the law; (3) it
must not be limited to existing conditions only; and (4) it must apply equally to all
members of the same class. For the purpose of urban development and housing
program, the disparities between a real property owner and an informal settler as
two distinct classes are too obvious. Thus, a socialized housing tax on real property

34 | P a g e
owners to provide funds for the housing of informal settler is a not class legislation
that violates the equal protection clause.

In this case, petitioner argues that the [Socialized Housing Tax] is a penalty imposed on
real property owners because it burdens them with expenses to provide funds for the housing of
informal settlers, and that it is a class legislation since it favors the latter who occupy properties
which is not their own and pay no taxes.

We disagree.

Equal protection requires that all persons or things similarly situated should be treated
alike, both as to rights conferred and responsibilities imposed. The guarantee means that no
person or class of persons shall be denied the same protection of laws which is enjoyed by other
persons or other classes in like circumstances.114 Similar subjects should not be treated differently
so as to give undue favor to some and unjustly discriminate against others. The law may, therefore,
treat and regulate one class differently from another class provided there are real and substantial
differences to distinguish one class from another

An ordinance based on reasonable classification does not violate the constitutional

guaranty of the equal protection of the law. The requirements for a valid and reasonable
classification are: (1) it must rest on substantial distinctions; (2) it must be germane to the purpose
of the law; (3) it must not be limited to existing conditions only; and (4) it must apply equally to
all members of the same class. For the purpose of undertaking a comprehensive and continuing
urban development and housing program, the disparities between a real property owner and an
informal settler as two distinct classes are too obvious and need not be discussed at length. The
differentiation conforms to the practical dictates of justice and equity and is not discriminatory
within the meaning of the Constitution. Notably, the public purpose of a tax may legally exist even
if the motive which impelled the legislature to impose the tax was to favor one over another. It is
inherent in the power to tax that a State is free to select the subjects of taxation. Inequities which
result from a singling out of one particular class for taxation or exemption infringe no
constitutional limitation. (Ferrer v. Bautista, G.R. No. 210551, June 30, 2015)

Favoring women over men as victims of violence and abuse is not a violation
of the equal protection clause. The unequal power relationship between women and
men, the fact that women are more likely than men to be victims of violence, and the
widespread gender bias and prejudice against women -- all make for real differences
justifying the classification under the law. These substantial distinctions are germane
to the purpose of preventing violence and abuse against women and children.

Equal protection simply requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities imposed. The oft-repeated
disquisition in the early case of Victoriano v. Elizalde Rope Workers' Union is instructive:
The guaranty of equal protection of the laws is not a guaranty of equality in the
application of the laws upon all citizens of the state. x x x The equal protection clause does
not forbid discrimination as to things that are different. x x x

The equal protection of the laws clause of the Constitution allows classification. x x
x All that is required of a valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which make for real differences;
that it must be germane to the purpose of the law; that it must not be limited to
existing conditions only; and that it must apply equally to each member of the
class. This Court has held that the standard is satisfied if the classification or distinction is
based on a reasonable foundation or rational basis and is not palpably arbitrary. (Emphasis
supplied)

x x x R.A. 9262 x x x did not violate the equal protection clause by favoring women over
men as victims of violence and abuse to whom the State extends its protection.

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that women are more
likely than men to be victims of violence; and the widespread gender bias and prejudice against
women all make for real differences justifying the classification under the law. x x x

xxx

II. The classification is germane to the purpose of the law.

35 | P a g e
 The distinction between men and women is germane to the purpose of R.A. 9262, which
is to address violence committed against women and children x x x.

xxx

III. The classification is not limited to existing conditions only, and apply equally to all
members.

Moreover, the application of R.A. 9262 is not limited to the existing conditions when it
was promulgated, but to future conditions as well, for as long as the safety and security of women
and their children are threatened by violence and abuse.

R.A. 9262 applies equally to all women and children who suffer violence and abuse.

(Garcia v. Drilon, G.R. No. 179267, June 25, 2013)

The lesbian, gay, bisexual, and transgender have the same interest in
participating in the party-list system as other political parties similarly situated.
Hence, laws of general application should apply with equal force to LGBTs; COMELEC’s
act of differentiating LGBTs from heterosexuals insofar as the party-list system
violates the equal protection clause.

Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor
shall any person be denied equal protection of the laws," courts have never interpreted the
provision as an absolute prohibition on classification. x x x

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor
targets a suspect class, we will uphold the classification as long as it bears a rational relationship
to some legitimate government end. In Central Bank Employees Association, Inc. v. Banko
Sentral ng Pilipinas, we declared that "[i]n our jurisdiction, the standard of analysis of equal
protection challenges x x x have followed the ‘rational basis’ test, coupled with a deferential
attitude to legislative classifications and a reluctance to invalidate a law unless there is a showing
of a clear and unequivocal breach of the Constitution."

The COMELEC posits that the majority of the Philippine population considers homosexual
conduct as immoral and unacceptable, and this constitutes sufficient reason to disqualify the
petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such
belief. No law exists to criminalize homosexual behavior or expressions or parties about
homosexual behavior. x x x

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender
have the same interest in participating in the party-list system on the same basis as other political
parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of
general application should apply with equal force to LGBTs, and they deserve to participate in the
party-list system on the same basis as other marginalized and under-represented sectors.

It bears stressing that our finding that COMELEC’s act of differentiating LGBTs from
heterosexuals insofar as the party-list system is concerned does not imply that any other law
distinguishing between heterosexuals and homosexuals under different circumstances would
similarly fail. We disagree with the OSG’s position that homosexuals are a class in themselves for
the purposes of the equal protection clause. We are not prepared to single out homosexuals as a
separate class meriting special or differentiated treatment. We have not received sufficient
evidence to this effect, and it is simply unnecessary to make such a ruling today. Petitioner itself
has merely demanded that it be recognized under the same basis as all other groups similarly
situated, and that the COMELEC made "an unwarranted and impermissible classification not
justified by the circumstances of the case." (Ang Ladlad LGBT Party v. Commission on Elections,
G.R. No. 190582, April 8, 2010)

The policy of JBC requiring 5 years of service as judges of first-level courts

before they can qualify as applicant to second-level courts does not violate the equal
protection clause. There is a substantial distinction between judges with 5 year
experience and those with less than 5 five years. The classification is reasonable and
relevant to its legitimate purpose of selecting those with proven competence.

36 | P a g e
 The crux of this petition is whether or not the policy of JBC requiring five years of service
as judges of first-level courts before they can qualify as applicant to second-level courts is
constitutional.

There is no question that JBC employs standards to have a rational basis to screen
applicants who cannot be all accommodated and appointed to a vacancy in the judiciary, to
determine who is best qualified among the applicants, and not to discriminate against any
particular individual or class.

The equal protection clause of the Constitution does not require the universal application
of the laws to all persons or things without distinction; what it requires is simply equality among
equals as determined according to a valid classification. Hence, the Court has affirmed that if a
law neither burdens a fundamental right nor targets a suspect class, the classification stands as
long as it bears a rational relationship to some legitimate government end.

"The equal protection clause, therefore, does not preclude classification of individuals who
may be accorded different treatment under the law as long as the classification is reasonable and
not arbitrary." "The mere fact that the legislative classification may result in actual inequality is
not violative of the right to equal protection, for every classification of persons or things for
regulation by law produces inequality in some degree, but the law is not thereby rendered invalid."

That is the situation here. In issuing the assailed policy, the JBC merely exercised its
discretion in accordance with the constitutional requirement and its rules that a member of the
Judiciary must be of proven competence, integrity, probity and independence. x x x The difference
in treatment between lower court judges who have served at least five years and those who have
served less than five years, on the other hand, was rationalized by JBC as follows:

x x x The assailed criterion or consideration for promotion to a second-level court, which

is five years experience as judge of a first-level court, is a direct adherence to the qualities
prescribed by the Constitution. Placing a premium on many years of judicial experience, the JBC
is merely applying one of the stringent constitutional standards requiring that a member of the
judiciary be of "proven competence." In determining competence, the JBC considers, among other
qualifications, experience and performance.

Based on the JBC’s collective judgment, those who have been judges of first-level courts
for five (5) years are better qualified for promotion to second-level courts. It deems length of
experience as a judge as indicative of conversance with the law and court procedure. x x x

xxx

Clearly, the classification created by the challenged policy satisfies the rational basis test.
The foregoing shows that substantial distinctions do exist between lower court judges with five
year experience and those with less than five years of experience, like the petitioner, and the
classification enshrined in the assailed policy is reasonable and relevant to its legitimate purpose.
The Court, thus, rules that the questioned policy does not infringe on the equal protection clause
as it is based on reasonable classification intended to gauge the proven competence of the
applicants. Therefore, the said policy is valid and constitutional. (Villanueva v. Judicial and Bar
Council, G.R. No. 211833, April 7, 2015)

Imposing an annual garbage fee on all domestic households based on rates

that depend on land or floor area and whether the payee is an occupant of a lot,
condominium, social housing project or apartment – violates the equal protection
clause. For the purpose of garbage collection, there is no substantial distinction
between an occupant of a lot, on one hand, and an occupant of a unit in a
condominium, socialized housing project or apartment, on the other hand. Most likely,
garbage output produced by these types of occupants is uniform and does not vary to
a large degree; thus, a similar schedule of fee is both just and equitable.

We cannot sustain the validity of Ordinance No. S-2235. It violates the equal protection
clause of the Constitution and the provisions of the LGC that an ordinance must be equitable and
based as far as practicable on the taxpayer’s ability to pay, and not unjust, excessive, oppressive,
confiscatory.

In the subject ordinance, the rates of the imposable fee depend on land or floor area and
whether the payee is an occupant of a lot, condominium, social housing project or apartment. xxx

xxx

37 | P a g e
 For the purpose of garbage collection, there is, in fact, no substantial distinction between
an occupant of a lot, on one hand, and an occupant of a unit in a condominium, socialized housing
project or apartment, on the other hand. Most likely, garbage output produced by these types of
occupants is uniform and does not vary to a large degree; thus, a similar schedule of fee is both
just and equitable.

The rates being charged by the ordinance are unjust and inequitable: a resident of a 200
sq. m. unit in a condominium or socialized housing project has to pay twice the amount than a
resident of a lot similar in size; unlike unit occupants, all occupants of a lot with an area of 200
sq. m. and less have to pay a fixed rate of Php100.00; and the same amount of garbage fee is
imposed regardless of whether the resident is from a condominium or from a socialized housing
project.

Indeed, the classifications under Ordinance No. S-2235 are not germane to its declared
purpose of "promoting shared responsibility with the residents to attack their common mindless
attitude in over-consuming the present resources and in generating waste. Instead of
simplistically categorizing the payee into land or floor occupant of a lot or unit of a condominium,
socialized housing project or apartment, respondent City Council should have considered factors
that could truly measure the amount of wastes generated and the appropriate fee for its collection.
Factors include, among others, household age and size, accessibility to waste collection,
population density of the barangay or district, capacity to pay, and actual occupancy of the
property. xxx A lack of uniformity in the rate charged is not necessarily unlawful discrimination.
The establishment of classifications and the charging of different rates for the several classes is
not unreasonable and does not violate the requirements of equality and uniformity.
Discrimination to be unlawful must draw an unfair line or strike an unfair balance between those
in like circumstances having equal rights and privileges. Discrimination with respect to rates
charged does not vitiate unless it is arbitrary and without a reasonable fact basis or justification.

xxx

xxx Ordinance No. SP-2235, S-2013, which collects an annual garbage fee on all domestic
households in Quezon City, is hereby declared as UNCONSTITUTIONAL AND ILLEGAL. (Ferrer
v. Bautista, G.R. No. 210551, June 30, 2015)

Prohibiting owners of Public Utility Vehicles (PUVs) and transport terminals

from posting election campaign materials violates the equal protection clause. If
owners of private vehicles and other properties are allowed to express their political
ideas and opinion by posting election campaign materials on their properties, there is
no cogent reason to deny the same preferred right to owners of PUVs and transport
terminals.

One of the basic principles on which this government was founded is that of the equality
of right, which is embodied in Section 1, Article III of the 1987 Constitution. "Equal protection
requires that all persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed. Similar subjects, in other words, should not be treated
differently, so as to give undue favor to some and unjustly discriminate against others."

xxx

Nevertheless, the guaranty of equal protection of the laws is not a guaranty of equality in
the application of the laws to all citizens of the state. Equality of operation of statutes does not
mean their indiscriminate operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution
does not require that things, which are different in fact, be treated in law as though they were the
same. The equal protection clause does not forbid discrimination as to things that are different.

In order that there can be valid classification so that a discriminatory governmental act
may pass the constitutional norm of equal protection, it is necessary that the four requisites of
valid classification be complied with, namely: (1) it must be based upon substantial distinctions;
(2) it must be germane to the purposes of the law; (3) it must not be limited to existing conditions
only; and (4) it must apply equally to all members of the class.

xxx

As regards ownership, there is no substantial distinction between owners of PUVs and

transport terminals and owners of private vehicles and other properties. As already explained, the
ownership of PUVs and transport terminals, though made available for use by the public, remains
private. If owners of private vehicles and other properties are allowed to express their political
38 | P a g e
ideas and opinion by posting election campaign materials on their properties, there is no cogent
reason to deny the same preferred right to owners of PUVs and transport terminals. In terms of
ownership, the distinction between owners of PUVs and transport terminals and owners of private
vehicles and properties is merely superficial. Superficial differences do not make for a valid
classification.

xxx

Further, classifying owners of PUVs and transport terminals apart from owners of private
vehicles and other properties bears no relation to the stated purpose of Section 7(g) items(5) and
(6) of Resolution No. 9615, i.e., to provide equal time, space and opportunity to candidates in
elections. (1-United Transport Koalisyon [1-Utak] v. Commission on Elections, G.R. No. 206020,
April 14, 2015)

UNREASONABLE SEARCHES AND SEIZURES

A proclamation of a state of emergency by a provincial governor cannot serve

as legal basis for general searches and seizures, including warrantless arrests. Even
a declaration of martial law by the President does not suspend the operation of the
Constitution.

On 31 March 2009, Governor Tan issued Proclamation 1-09, declaring a state of

emergency in the province of Sulu. It cited the kidnapping incident [of three members from the
International Committee of the Red Cross] as a ground for the said declaration, describing it as a
terrorist act pursuant to the Human Security Act (R.A. 9372). x x x

In the same Proclamation, respondent Tan called upon the PNP and the CEF to set up
checkpoints and chokepoints, conduct general search and seizures including arrests, and other
actions necessary to ensure public safety. The pertinent portion of the proclamation states:
NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN ME BY LAW, I,
ABDUSAKUR MAHAIL TAN, GOVERNOR OF THE PROVINCE OF SULU, DO HEREBY
DECLARE A STATE OF EMERGENCY IN THE PROVINCE OF SULU, AND CALL ON THE
PHILIPPINE NATIONAL POLICE WITH THE ASSISTANCE OF THE ARMED FORCES OF
THE PHILIPPINES AND THE CIVILIAN EMERGENCY FORCE TO IMPLEMENT THE
FOLLOWING:

1. The setting-up of checkpoints and chokepoints in the province;

2. The imposition of curfew for the entire province subject to such Guidelines as may
be issued by proper authorities;

3. The conduct of General Search and Seizure including arrests in the pursuit of the
kidnappers and their supporters; and

4. To conduct such other actions or police operations as may be necessary to ensure

public safety.

xxx

On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to respondent
P/SUPT. Julasirim Kasim. Upon arriving at the police station, he was booked, and interviewed
about his relationship to Musin, Jaiton, and Julamin, who were all his deceased relatives. Upon
admitting that he was indeed related to the three, he was detained. After a few hours, former
Punong Barangay Juljahan Awadi, Hadji Hadjirul Bambra, Abdugajir Hadjirul, as well as PO2
Marcial Hajan, SPO3 Muhilmi Ismula, Punong Barangay Alano Mohammad and jeepney driver
Abduhadi Sabdani, were also arrested. The affidavit of the apprehending officer alleged that they
were suspected ASG supporters and were being arrested under Proclamation 1-09. x x x

xxx

Petitioners cite the implementation of "General Search and Seizure including arrests in
the pursuit of the kidnappers and their supporters," as being violative of the constitutional
proscription on general search warrants and general seizures. Petitioners rightly assert that this
alone would be sufficient to render the proclamation void, as general searches and seizures are
proscribed, for being violative of the rights enshrined in the Bill of Rights, particularly:
The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be
39 | P a g e
 inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

In fact, respondent governor has arrogated unto himself powers exceeding even the
martial law powers of the President, because as the Constitution itself declares, "A state of martial
law does not suspend the operation of the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the conferment of the jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ." (Kulayan v. Tan, G.R. No. 187298, July 03, 2012)

Search warrants: Requirements for validity

The right of a person against unreasonable searches and seizure is recognized and
protected by no less than the Constitution, particularly, Sections 2 and 3(2) of Article III which
provide:
SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.
SEC. 3. x x x
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible
for any purpose in any proceeding.

Accordingly, Sections 4 and 5, Rule 126 of the Revised Rules on Criminal Procedure laid
down the following requisites for the issuance of a valid search warrant:
SEC. 4. Requisites for issuing search warrant. – A search warrant shall not issue except upon
probable cause in connection with one specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the things to be seized which may be anywhere in
the Philippines.
SEC. 5. Examination of complainant; record. – The judge must, before issuing the warrant,
personally examine in the form of searching questions and answers, in writing and under oath, the
complainant and the witnesses he may produce on facts personally known to them and attach to the
record their sworn statements, together with the affidavits submitted.

Therefore, the validity of the issuance of a search warrant rests upon the following factors:
(1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge
himself and not by the applicant or any other person; (3) in the determination of probable cause,
the judge must examine, under oath or affirmation, the complainant and such witnesses as the
latter may produce; and (4) the warrant issued must particularly describe the place to be searched
and persons or things to be seized. (People v. Tuan, G.R. No. 176066, August 11, 2010)

Search warrants: There must be probable cause – the existence of such facts
and circumstances which could lead a reasonably discreet and prudent man to believe
that an offense has been committed and that the item(s), article(s) or object(s)
sought in connection with said offense is in the place to be searched.
In People v. Aruta, the Court defined probable cause as follows:
Although probable cause eludes exact and concrete definition, it generally signifies a
reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to
warrant a cautious man to believe that the person accused is guilty of the offense with which he is
charged. It likewise refers to the existence of such facts and circumstances which could lead a
reasonably discreet and prudent man to believe that an offense has been committed and that the
item(s), article(s) or object(s) sought in connection with said offense or subject to seizure and
destruction by law is in the place to be searched. (People v. Tuan, G.R. No. 176066, August 11,
2010)

Search warrant warrants must be based on substantial evidence that the items
are seizable.
Before a search warrant can be issued, it must be shown by substantial evidence that the
items sought are in fact seizable by virtue of being connected with criminal activity, and that the
40 | P a g e
items will be found in the place to be searched.
A magistrate’s determination of probable cause for the issuance of a search warrant is paid
great deference by a reviewing court, as long as there was substantial basis for that determination.
Substantial basis means that the questions of the examining judge brought out such facts and
circumstances as would lead a reasonably discreet and prudent man to believe that an offense has
been committed, and the objects in connection with the offense sought to be seized are in the place
sought to be searched. (People v. Tuan, G.R. No. 176066, August 11, 2010)

Search warrants: The judge must personally and thoroughly examine the
applicant and his witnesses.
Under Section 2, Article III of the Constitution, the existence of probable cause for the
issuance of a warrant is central to the right, and its existence largely depends on the finding of the
judge conducting the examination.
xxx
[W]hat the Constitution requires is for the judge to conduct an “examination under oath
or affirmation of the complainant and the witnesses he may produce,” after which he determines
the existence of probable cause for the issuance of the warrant. The examination requirement
was originally a procedural rule found in Section 98 of General Order No. 58,30 but was elevated
as part of the guarantee of the right under the 1935 Constitution. The intent was to ensure that a
warrant is issued not merely on the basis of the affidavits of the complainant and his witnesses,
but only after examination by the judge of the complainant and his witnesses. As the same
examination requirement was adopted in the present Constitution, we declared that affidavits of
the complainant and his witnesses are insufficient to establish the factual basis for probable cause.
Personal examination by the judge of the applicant and his witnesses is indispensable, and the
examination should be probing and exhaustive, not merely routinary or a rehash of the affidavits.
(Ogayon v. People, September 2, 2015)
xxx
There must be, in the records, particular facts and circumstances that were
considered by the judge as sufficient to make an independent evaluation of the
existence of probable cause to justify the issuance of the search warrant. In the
absence of records indicating that the issuing judge personally and thoroughly
examined the applicant and his witnesses – such as depositions and transcripts of
the examination and the application for the search warrant and supporting affidavits
– the Search warrant is a nullity.
Ideally, compliance with the examination requirement is shown by the depositions and
the transcript. In their absence, however, a warrant may still be upheld if there is evidence in the
records that the requisite examination was made and probable cause was based thereon. There
must be, in the records, particular facts and circumstances that were considered by the judge as
sufficient to make an independent evaluation of the existence of probable cause to justify the
issuance of the search warrant.
xxx
Apart from the statement in the search warrant itself, we find nothing in the records of
this case indicating that the issuing judge personally and thoroughly examined the applicant and
his witnesses. The absence of depositions and transcripts of the examination was already
admitted; the application for the search warrant and the affidavits, although acknowledged by
Ogayon himself, could not be found in the records. xxx
The records, therefore, bear no evidence from which we can infer that the requisite
examination was made, and from which the factual basis for probable cause to issue the search
warrant was derived. A search warrant must conform strictly to the constitutional requirements
for its issuance; otherwise, it is void. Based on the lack of substantial evidence that the search
warrant was issued after the requisite examination of the complainant and his witnesses was
made, the Court declares Search Warrant No. AEK 29-2003 a nullity. (Ogayon v. People,
September 2, 2015)

Search warrants: A description of the place to be searched is sufficient if the

officer serving the warrant can, with reasonable effort, ascertain and identify the
place intended and distinguish it from other places in the community. The specific
room in the house to be searched need not be identified.

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 Equally without merit is accused-appellant’s assertion that the Search Warrant did not
describe with particularity the place to be searched.
A description of the place to be searched is sufficient if the officer serving the warrant can,
with reasonable effort, ascertain and identify the place intended and distinguish it from other
places in the community. A designation or description that points out the place to be searched to
the exclusion of all others, and on inquiry unerringly leads the peace officers to it, satisfies the
constitutional requirement of definiteness. In the case at bar, the address and description of the
place to be searched in the Search Warrant was specific enough. There was only one house located
at the stated address, which was accused-appellant’s residence, consisting of a structure with two
floors and composed of several rooms. (People v. Tuan, G.R. No. 176066, August 11, 2010)

The search must be at the place described in the warrant.

The items were seized by a barangay tanod in a nipa hut, 20 meters away from the
residence of the petitioner. The confiscated items, having been found in a place other than the one
described in the search warrant, can be considered as fruits of an invalid warrantless search, the
presentation of which as an evidence is a violation of petitioner's constitutional guaranty against
unreasonable searches and seizure. (Castillo v. People, G.R. No. 185128, January 30, 2012)

Warrantless search: In a search incident to a lawful arrest, the law requires

that there first be a lawful arrest before a search can be made -- the process cannot
be reversed.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity of
the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g.,
whether an arrest was merely used as a pretext for conducting a search. In this instance, the law
requires that there first be a lawful arrest before a search can be made -- the process cannot be
reversed. x x x

xxx

A search as an incident to a lawful arrest is sanctioned by the Rules of Court. It bears

emphasis that the law requires that the search be incidental to a lawful arrest. Therefore it is
beyond cavil that a lawful arrest must precede the search of a person and his belongings; the
process cannot be reversed.

Here, the search preceded the arrest of Sanchez. There was no arrest prior to the conduct
of the search. Arrest is defined under Section 1, Rule 113 of the Rules of Court as the taking of a
person into custody that he may be bound to answer for the commission of an offense. Under
Section 2, of the same rule, an arrest is effected by an actual restraint of the person to be arrested
or by his voluntary submission to the custody of the person making the arrest. x x x Evidently,
what happened in this case was that a search was first undertaken and then later an arrest was
effected based on the evidence produced by the search. (Sanchez v. People, G.R. No. 204589,
November 19, 2014)

Warrantless search: Search incident to a lawful arrest: A search incidental to a

lawful arrest requires that there must first be a lawful arrest before a search is made.
Otherwise stated, a lawful arrest must precede the search; the process cannot be
reversed.

The police officers at the checkpoint personally knew Veridiano.

They allowed some vehicles to pass through after checking that he was not on board. At
around 10:00 a.m., they chanced upon Veridiano inside a passenger jeepney coming from San
Pablo, Laguna. 13 They flagged down the jeepney and asked the passengers to disembark. The
police officers instructed the passengers to raise their t-shirts to check for possible concealed
weapons and to remove the contents of their pockets.

The police officers recovered from Veridiano "a tea bag containing what appeared to be
marijuana." POI Cabello confiscated the tea bag and marked it with his initials. Veridiano was
arrested and apprised of his constitutional rights. xxxx

xxxx The contents of the tea bag tested positive for marijuana.

42 | P a g e
 xxxv Veridiano guilty beyond reasonable doubt for the crime of illegal possession of
marijuana.

xxx Veridiano appealed the decision of the trial court asserting that "he was illegally
arrested." He argued that the tea bag containing marijuana is "inadmissible in evidence [for] being
the 'fruit of a poisonous tree. "xxxx

xxxx

Petitioner's warrantless arrest was unlawful.

A search incidental to a lawful arrest requires that there must first be a lawful arrest before
a search is made. Otherwise stated, a lawful arrest must precede the search; "the process cannot
be reversed." For there to be a lawful arrest, law enforcers must be armed with a valid warrant.
Nevertheless, an arrest may also be effected without a warrant. (Veridiano v. People, G.R. No.
200370, 07 June 2017)

Warrantless search: Search incident to a lawful arrest: Requirements for a valid

in flagrante delicto arrest to justify a subsequent search: (1) the person to be arrested
must execute an overt act indicating that he [or she] has just committed, is actually
committing, or is attempting to commit a crime; and (2) such overt act is done in the
presence or within the view of the arresting officer.

There are three (3) grounds that will justify a warrantless arrest. Rule 113, Section 5 of the
Revised Rules of Criminal Procedure provides:

Section 5. Arrest Without Warrant; When Lawful. -A peace officer or a private

person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person to be
arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined
while his case is pending, or has escaped while being transferred from one confinement
to another.

The first kind of warrantless arrest is known as an in flagrante delicto arrest. The validity
of this warrantless arrest requires compliance with the overt act test as explained in Cogaed:

[F]or a warrantless arrest of in flagrante delicto to be affected, "two elements must concur:
(1) the person to be arrested must execute an overt act indicating that he [or she] has just
committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is
done in the presence or within the view of the arresting officer."

Failure to comply with the overt act test renders an inflagrante delicto arrest
constitutionally infirm. In Cogaed, the warrantless arrest was invalidated as an in flagrante delicto
arrest because the accused did not exhibit an overt act within the view of the police officers
suggesting that he was in possession of illegal drugs at the time he was apprehended.

The warrantless search in People v. Racho was also considered unlawful. The police
officers received information that a man was in possession of illegal drugs and was on board a
Genesis bus bound for Baler, Aurora. The informant added that the man was "wearing a red and
white striped [t]-shirt." The police officers waited for the bus along the national highway. When
the bus arrived, Jack Racho (Racho) disembarked and waited along the highway for a tricycle.
Suddenly, the police officers approached him and invited him to the police station since he was
suspected of having shabu in his possession. As Racho pulled out his hands from his pocket, a
white envelope fell yielding a sachet of shabu.

In holding that the warrantless search was invalid, this Court observed that Racho was not
"committing a crime in the presence of the police officers" at the time he was apprehended.
Moreover, Racho's arrest was solely based on a tip. Although there are cases stating that reliable
information is sufficient to justify a warrantless search incidental to a lawful arrest, they were

43 | P a g e
covered under the other exceptions to the rule on warrantless searches. (Veridiano v. People, G.R.
No. 200370, 07 June 2017)

Warrantless search: Search incident to a lawful arrest: Requirements for a valid

in hot pursuit arrest: Law enforcers need not personally witness the commission of a
crime. However, they must have personal knowledge of facts and circumstances
indicating that the person sought to be arrested committed it. A hearsay tip by itself
does not justify a warrantless arrest. Law enforcers must have personal knowledge
of facts, based on their observation, that the person sought to be arrested has just
committed a crime

Rule 113, Section 5(b) of the Rules of Court pertains to a hot pursuit arrest. The rule
requires that an offense has just been committed. It connotes "immediacy in point of time." That
a crime was in fact committed does not automatically bring the case under this rule. An arrest
under Rule 113, Section 5(b) of the Rules of Court entails a time element from the moment the
crime is committed up to the point of arrest.

Law enforcers need not personally witness the commission of a crime. However, they must
have personal knowledge of facts and circumstances indicating that the person sought to be
arrested committed it.

People v. Gerente illustrates a valid arrest under Rule 113, Section 5(b) of the Rules of
Court. In Gerente, the accused was convicted for murder and for violation of Republic Act No.
6425. He assailed the admissibility of dried marijuana leaves as evidence on the ground that they
were allegedly seized from him pursuant to a warrantless arrest. On appeal, the accused's
conviction was affirmed. This Court ruled that the warrantless arrest was justified under Rule 113,
Section 5(b) of the Rules of Court. The police officers had personal knowledge of facts and
circumstances indicating that the accused killed the victim:

The policemen arrested Gerente only some three (3) hours after Gerente
and his companions had killed Blace. They saw Blace dead in the hospital and when
they inspected the scene of the crime, they found the instruments of death: a piece
of wood and a concrete hollow block which the killers had used to bludgeon him to
death. The eye-witness, Edna Edwina Reyes, reported the happening to the
policemen and pinpointed her neighbor, Gerente, as one of the killers. Under those
circumstances, since the policemen had personal knowledge of the violent death of
Blace and of facts indicating that Gerente and two others had killed him, they could
lawfully arrest Gerente without a warrant. If they had postponed his arrest until
they could obtain a warrant, he would have fled the law as his two companions
did.

The requirement that law enforcers must have personal knowledge of facts surrounding
the commission of an offense was underscored in In Re Saliba v. Warden.

In Re Saliba involved a petition for habeas corpus. The police officers suspected Datukan
Salibo (Salibo) as one (1) of the accused in the Maguindano Massacre. Salibo presented himself
before the authorities to clear his name. Despite his explanation, Salibo was apprehended and
detained. In granting the petition, this Court pointed out that Salibo was not restrained under a
lawful court process or order. Furthermore, he was not arrested pursuant to a valid warrantless
arrest:

It is undisputed that petitioner Salibo presented himself before the Datu Hofer Police
Station to clear his name and to prove that he is not the accused Butukan S. Malang. When
petitioner Salibo was in the presence of the police officers of Datu Hofer Police Station, he was
neither committing nor attempting to commit an offense. The police officers had no personal
knowledge of any offense that he might have committed. Petitioner Salibo was also not an escapee
prisoner.

In this case, petitioner's arrest could not be justified as an inflagrante delicta arrest under
Rule 113, Section 5(a) of the Rules of Court. He was not committing a crime at the checkpoint.
Petitioner was merely a passenger who did not exhibit any unusual conduct in the presence of the
law enforcers that would incite suspicion. In effecting the warrantless arrest, the police officers
relied solely on the tip they received. Reliable information alone is insufficient to support a
warrantless arrest absent any overt act from the person to be arrested indicating that a crime has
just been committed, was being committed, or is about to be committed.

44 | P a g e
 The warrantless arrest cannot likewise be justified under Rule 113, Section 5(b) of the
Revised Rules of Criminal Procedure. The law enforcers had no personal knowledge of any fact or
circumstance indicating that petitioner had just committed an offense.

A hearsay tip by itself does not justify a warrantless arrest. Law enforcers must have
personal knowledge of facts, based on their observation, that the person sought to be arrested has
just committed a crime. This is what gives rise to probable cause that would justify a warrantless
search under Rule 113, Section 5(b) of the Revised Rules of Criminal Procedure. (Veridiano v.
People, G.R. No. 200370, 07 June 2017)

Warrantless search: Search incident to a lawful arrest: An informant’s tip that

a pot session is going on inside a house is not sufficient justification for police officers
to enter such house to effect an arrest and seizure without a warrant. Personal
knowledge of facts in arrests without warrant must be based upon probable cause,
which means an actual belief or reasonable grounds of suspicion.

As culled from the testimonies of prosecution witnesses, x x x it appears that on September

2, 2006, at around 12:45 o’clock in the afternoon, PO1 Azardon was on duty at the Police
Community Precinct II along Arellano Street, Dagupan City, when a concerned citizen entered the
precinct and reported that a pot session was going on in the house of accused Rafael Gonzales
(Gonzales) in Trinidad Subdivision, Dagupan City. Upon receipt of the report, PO1 Azardon, PO1
Alejandro Dela Cruz (PO1 Dela Cruz), and members of the Special Weapons and Tactics (SWAT)
team hied to Trinidad Subdivision, Dagupan City. Upon inquiry from people in the area, the house
of Gonzales was located.

As the police officers entered the gate of the house, they saw accused Orlando Doria
(Doria) coming out of the side door and immediately arrested him. Inside the house, they saw
accused Gonzales, Arnold Martinez (A. Martinez), Edgar Dizon (Dizon), and Rezin Martinez (R.
Martinez) in a room. The four were surprised by the presence of the police. In front of them were
open plastic sachets (containing shabu residue), pieces of rolled used aluminum foil and pieces of
used aluminum foil.

xxx

A review of the facts reveal that the arrest of the accused was illegal and the subject items
were confiscated as an incident thereof. According to the testimony of PO1 Azardon and his Joint
Affidavit13 with PO1 Dela Cruz, they proceeded to, and entered, the house of accused Gonzales
based solely on the report of a concerned citizen that a pot session was going on in said house.

Although this Court has ruled in several dangerous drugs cases that tipped information is
sufficient probable cause to effect a warrantless search, such rulings cannot be applied in the case
at bench because said cases involve either a buy-bust operation or drugs in transit, basically,
circumstances other than the sole tip of an informer as basis for the arrest. None of these drug
cases involve police officers entering a house without warrant to effect arrest and seizure based
solely on an informer’s tip. The case of People v. Bolasa is informative on this matter.

In People v. Bolasa, an anonymous caller tipped off the police that a man and a woman
were repacking prohibited drugs at a certain house. The police immediately proceeded to the
house of the suspects. They walked towards the house accompanied by their informer. When they
reached the house, they peeped inside through a small window and saw a man and woman
repacking marijuana. They then entered the house, introduced themselves as police officers,
confiscated the drug paraphernalia, and arrested the suspects. This Court ruled:

The manner by which accused-appellants were apprehended does not fall under any
of the above-enumerated categories. Perforce, their arrest is illegal. First, the arresting
officers had no personal knowledge that at the time of their arrest, accused-appellants had
just committed, were committing, or were about to commit a crime. Second, the arresting
officers had no personal knowledge that a crime was committed nor did they have any
reasonable ground to believe that accused-appellants committed it. Third, accused-
appellants were not prisoners who have escaped from a penal establishment.

Neither can it be said that the objects were seized in plain view. First, there was no
valid intrusion. As already discussed, accused-appellants were illegally arrested. Second, the
evidence, i.e., the tea bags later on found to contain marijuana, was not inadvertently
discovered. The police officers intentionally peeped first through the window before they saw
and ascertained the activities of accused-appellants inside the room. In like manner, the
45 | P a g e
 search cannot be categorized as a search of a moving vehicle, a consented warrantless search,
a customs search, or a stop and frisk; it cannot even fall under exigent and emergency
circumstances, for the evidence at hand is bereft of any such showing.

On the contrary, it indicates that the apprehending officers should have conducted
first a surveillance considering that the identities and address of the suspected culprits were
already ascertained. After conducting the surveillance and determining the existence of
probable cause for arresting accused-appellants, they should have secured a search warrant
prior to effecting a valid arrest and seizure. The arrest being illegal ab initio, the
accompanying search was likewise illegal. Every evidence thus obtained during the illegal
search cannot be used against accused-appellants; hence, their acquittal must follow in
faithful obeisance to the fundamental law.

It has been held that personal knowledge of facts in arrests without warrant must be based
upon probable cause, which means an actual belief or reasonable grounds of suspicion. The
grounds of suspicion are reasonable when the suspicion, that the person to be arrested is probably
guilty of committing an offense, is based on actual facts, that is, supported by circumstances
sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested.
(People v. Martinez, G.R. No. 191366, December 13, 2010)

Warrantless search: Search incident to a lawful arrest: Roadside questioning

of a motorist pursuant to a routine traffic stop is not necessarily an arrest that
justifies a warrantless search. Also, a warrantless arrest cannot be made for an
offense penalized by a fine only. Hence, no valid search incident to a lawful arrest can
be made under such circumstances.

At the time that he was waiting for PO3 Alteza to write his citation ticket, petitioner could
not be said to have been "under arrest." There was no intention on the part of PO3 Alteza to arrest
him, deprive him of his liberty, or take him into custody. Prior to the issuance of the ticket, the
period during which petitioner was at the police station may be characterized merely as waiting
time. In fact, as found by the trial court, PO3 Alteza himself testified that the only reason they
went to the police sub-station was that petitioner had been flagged down "almost in front" of that
place. Hence, it was only for the sake of convenience that they were waiting there. There was no
intention to take petitioner into custody.

In Berkemer v. McCarty, the United States (U.S.) Supreme Court discussed at length
whether the roadside questioning of a motorist detained pursuant to a routine traffic stop should
be considered custodial interrogation. The Court held that, such questioning does not fall under
custodial interrogation, nor can it be considered a formal arrest, by virtue of the nature of the
questioning, the expectations of the motorist and the officer, and the length of time the procedure
is conducted.

It also appears that, according to City Ordinance No. 98-012, which was violated by
petitioner, the failure to wear a crash helmet while riding a motorcycle is penalized by a fine only.
Under the Rules of Court, a warrant of arrest need not be issued if the information or charge was
filed for an offense penalized by a fine only. It may be stated as a corollary that neither can a
warrantless arrest be made for such an offense.

This ruling does not imply that there can be no arrest for a traffic violation. Certainly, when
there is an intent on the part of the police officer to deprive the motorist of liberty, or to take the
latter into custody, the former may be deemed to have arrested the motorist. In this case, however,
the officer’s issuance (or intent to issue) a traffic citation ticket negates the possibility of an arrest
for the same violation.

xxx

[T]here being no valid arrest, the warrantless search that resulted from it was likewise
illegal. (Luz v. People, G.R. No. 197788, February 29, 2012)

Warrantless search: Search of a moving vehicle: Checkpoints are allowed.

Another instance of a valid warrantless search is a search of a moving vehicle. The rules
governing searches and seizures have been liberalized when the object of a search is a vehicle for
practical purposes. Police officers cannot be expected to appear before a judge and apply for a
search warrant when time is of the essence considering the efficiency of vehicles in facilitating
transactions involving contraband or dangerous articles. However, the inherent mobility of
vehicles cannot justify all kinds of searches. Law enforcers must act on the basis of probable cause.

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 A checkpoint search is a variant of a search of a moving vehicle. Due to the number of
cases involving warrantless ·searches in checkpoints and for the guidance of law enforcers, it is
imperative to discuss the parameters by which searches in checkpoints should be conducted.

Checkpoints per se are not invalid. They are allowed in exceptional circumstances to
protect the lives of individuals and ensure their safety. They are also sanctioned in cases where
the government's survival is in danger. (Veridiano v. People, G.R. No. 200370, 07 June 2017)

Warrantless search: Search of a moving vehicle: Routine checkpoint searches

are valid for as long as the vehicle is neither searched nor its occupants subjected to
a body search, and the inspection of the vehicle is limited to a visual search.

Considering that routine checkpoints intrude "on [a] motorist'sright to 'free passage'" to a
certain extent, they must be "conducted in a way least intrusive to motorists." The extent of
routine inspections must be limited to a visual search. Routine inspections do not give law
enforcers carte blanche to perform warrantless searches.

In Valmonte v. De Villa, this Court clarified that "[f]or as long as the vehicle is neither
searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited
to a visual search, said routine checks cannot be regarded as violative of an individual's right
against unreasonable search[es]." Thus, a search where an "officer merely draws aside the curtain
of a vacant vehicle which is parked on the public fair grounds, or simply looks into a vehicle, or
flashes a light therein" is not unreasonable. (Veridiano v. People, G.R. No. 200370, 07 June 2017)

Warrantless search: Search of a moving vehicle: Extensive checkpoint searches

are valid when law enforcers have probable cause to believe that the vehicle's
passengers committed a crime or when the vehicle contains instruments of an
offense. Moreover, law enforcers cannot act solely on the basis of confidential or
tipped information. A tip is still hearsay no matter how reliable it may be. It is not
sufficient to constitute probable cause in the absence of any other circumstance that
will arouse suspicion.

However, an extensive search may be conducted on a vehicle at a checkpoint when law

enforcers have probable cause to believe that the vehicle's passengers committed a crime or when
the vehicle contains instruments of an offense.

Thus, routinary and indiscriminate searches of moving vehicles are allowed if they are
limited to a visual search. This holds especially true when the object of the search is a public
vehicle where individuals have a reasonably reduced expectation of privacy. On the other hand,
extensive searches are permissible only when they are founded upon probable cause. Any
evidence obtained will be subject to the exclusionary principle under the Constitution.

That the object of a warrantless search is allegedly inside a moving vehicle does not justify
an extensive search absent probable cause. Moreover, law enforcers cannot act solely on the basis
of confidential or tipped information. A tip is still hearsay no matter how reliable it may be. It is
not sufficient to constitute probable cause in the absence of any other circumstance that will
arouse suspicion.

Although this Court has upheld warrantless searches of moving vehicles based on tipped
information, there have been other circumstances that justified warrantless searches conducted
by the authorities.

In People v. Breis, apart from the tipped information they received, the law enforcement
agents observed suspicious behavior on the part of the accused that gave them reasonable ground
to believe that a crime was being committed. The accused attempted to alight from the bus after
the law enforcers introduced themselves and inquired about the ownership of a box which the
accused had in their possession. In their attempt to leave the bus, one (1) of the accused physically
pushed a law enforcer out of the way. Immediately alighting from a bus that had just left the
terminal and leaving one's belongings behind is unusual conduct.

In People v. Mariacos, a police officer received information that a bag containing illegal
drugs was about to be transported on a passenger jeepney. The bag was marked with "O.K." On
the basis of the tip, a police officer conducted surveillance operations on board a jeepney. Upon
seeing the bag described to him, he peeked inside and smelled the distinct odor of marijuana
emanating from the bag. The tipped information and the police officer's personal observations
gave rise to probable cause that rendered the warrantless search valid.

47 | P a g e
 The police officers in People v. Ayangao, and People v. Libnao likewise received tipped
information regarding the transport of illegal drugs. In Libnao, the police officers had probable
cause to arrest the accused based on their three (3)-month long surveillance operation in the area
where the accused was arrested. On the other hand, in Ayangao, the police officers noticed
marijuana leaves protruding through a hole in one (1) of the sacks carried by the accused.

In the present case, the extensive search conducted by the police officers exceeded the
allowable limits of warrantless searches. They had no probable cause to believe that the accused
violated any law except for the tip they received. They did not observe any peculiar activity from
the accused that may either arouse their suspicion or verify the tip. Moreover, the search was
flawed at its inception. The checkpoint was set up to target the arrest of the accused.

There are different hybrids of reasonable warrantless searches. There are searches based
on reasonable suspicion as in Posadas v. Court of Appeals where this Court justified the
warrantless search of the accused who attempted to flee with a buri bag after the police officers
identified themselves. (Veridiano v. People, G.R. No. 200370, 07 June 2017)

Warrantless search: The protection against unreasonable searches and

seizures cannot be extended to acts committed by private individuals so as to bring
it within the ambit of alleged unlawful intrusion by the government. With port
security personnel’s functions having the color of state-related functions, they are
deemed agents of government for purposes of the application of the right against
unreasonable searches and seizures.

In People v. Marti, [involving a search by private forwarding company of a package] xxx

[the] court held that there was no unreasonable search or seizure. The evidence obtained against
the accused was not procured by the state acting through its police officers or authorized
government agencies. The Bill of Rights does not govern relationships between individuals; it
cannot be invoked against the acts of private individuals:

If the search is made upon the request of law enforcers, a warrant must generally be first
secured if it is to pass the test of constitutionality. However, if the search is made at the behest or
initiative of the proprietor of a private establishment for its own and private purposes, as in the
case at bar, and without the intervention of police authorities, the right against unreasonable
search and seizure cannot be invoked for only the act of private individual, not the law enforcers,
is involved. In sum, the protection against unreasonable searches and seizures cannot be extended
to acts committed by private individuals so as to bring it within the ambit of alleged unlawful
intrusion by the government.

Hence, by virtue of Marti, items seized pursuant to a reasonable search conducted by

private persons are not covered by the exclusionary rule.

xxxx

In People v. Malngan, barangay tanod and the Barangay Chairman were deemed as law
enforcement officers for purposes of applying Article III of the Constitution. In People v.
Lauga, this court held that a "bantay bayan," in relation to the authority to conduct a custodial
investigation under Article III, Section 12 of the Constitution, "has the color of a state-related
function and objective insofar as the entitlement of a suspect to his constitutional rights[.]"

Thus, with port security personnel’s functions having the color of state-related functions
and deemed agents of government, Marti is inapplicable in the present case. (Dela Cruz v. People,
G.R. No. 209387, January 11, 2016)

Warrantless search: Routine x-ray scanning of baggage at ports by port

authorities: The security measures of x-ray scanning and inspection in domestic ports
-- akin to routine security procedures in airports – are reasonable. The reason behind
it is that there is a reasonable reduced expectation of privacy when coming into
airports or ports of travel.

The first point of intrusion occurred when petitioner presented his bag for inspection to port
personnel—the x-ray machine operator and baggage inspector manning the x-ray machine
station. With regard to searches and seizures, the standard imposed on private persons is different
from that imposed on state agents or authorized government authorities.

xxxx
48 | P a g e
 Nevertheless, searches pursuant to port security measures are not unreasonable per se. The
security measures of x-ray scanning and inspection in domestic ports are akin to routine security
procedures in airports.

xxxx

This court in Suzuki found that the search conducted on the accused was a valid exception
to the prohibition against warrantless searches as it was pursuant to a routine airport security
procedure: xxxx

xxxx

The reason behind it is that there is a reasonable reduced expectation of privacy when
coming into airports or ports of travel:

Persons may lose the protection of the search and seizure clause by exposure of their
persons or property to the public in a manner reflecting a lack of subjective expectation of
privacy, which expectation society is prepared to recognize as reasonable. Such recognition is
implicit in airport security procedures. With increased concern over airplane hijacking and
terrorism has come increased security at the nation’s airports. Passengers attempting to board
an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked
luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of
suspicious objects, physical searches are conducted to determine what the objects are. There is
little question that such searches are reasonable, given their minimal intrusiveness, the gravity
of the safety interests involved, and the reduced privacy expectations associated with airline
travel. Indeed, travelers are often notified through airport public address systems, signs and
notices in their airline tickets that they are subject to search and, if any prohibited materials
or substances are found, such would be subject to seizure. These announcements place
passengers on notice that ordinary constitutional protections against warrantless searches
and seizures do not apply to routine airport procedures. (Emphasis supplied, citations
omitted)

This rationale was reiterated more recently in Sales v. People. This court in Sales upheld the
validity of the search conducted as part of the routine security check at the old Manila Domestic
Airport—now Terminal 1 of the Ninoy Aquino International Airport.

Port authorities were acting within their duties and functions when it used x-ray scanning
machines for inspection of passengers’ bags. When the results of the x-ray scan revealed the
existence of firearms in the bag, the port authorities had probable cause to conduct a search of
petitioner’s bag. (Dela Cruz v. People, G.R. No. 209387, January 11, 2016)

Warrantless search: Routine baggage inspections at ports by port authorities:

Opening of baggage by port inspector is reasonable. The port personnel’s actions
proceed from the authority and policy to ensure the safety of travelers and vehicles
within the port. It is a permissible intrusion to privacy when measured against the
possible harm to society caused by lawless persons.

Was the search rendered unreasonable at the second point of intrusion—when the baggage
inspector opened petitioner’s bag and called the attention of the port police officer?

We rule in the negative.

The port personnel’s actions proceed from the authority and policy to ensure the safety of
travelers and vehicles within the port. At this point, petitioner already submitted himself and his
belongings to inspection by placing his bag in the x-ray scanning machine.

The presentation of petitioner’s bag for x-ray scanning was voluntary. Petitioner had the
choice of whether to present the bag or not. He had the option not to travel if he did not want his
bag scanned or inspected. X-ray machine scanning and actual inspection upon showing of
probable cause that a crime is being or has been committed are part of reasonable security
regulations to safeguard the passengers passing through ports or terminals. xxxx

It is not too burdensome to be considered as an affront to an ordinary person’s right to travel

if weighed against the safety of all passengers and the security in the port facility.

xxxx

49 | P a g e
 Any perceived curtailment of liberty due to the presentation of person and effects for port
security measures is a permissible intrusion to privacy when measured against the possible harm
to society caused by lawless persons. (Dela Cruz v. People, G.R. No. 209387, January 11, 2016)

Warrantless search: Stop-and-Frisk search: Probable cause is not required but

a genuine reason must exist, in light of the police officer's experience and surrounding
conditions, to warrant the belief that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently dangerous.

We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a

"limited protective search of outer clothing for weapons," as laid down in Terry, thus:

We merely hold today that where a police officer observes unusual conduct which leads
him reasonably to conclude in light of his experience that criminal activity may be afoot and that
the persons with whom he is dealing may be armed and presently dangerous, where in the course
of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries,
and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his
own or others' safety, he is entitled for the protection of himself and others in the area to conduct
a carefully limited search of the outer clothing of such persons in an attempt to discover weapons
which might be used to assault him. Such a search is a reasonable search under the Fourth
Amendment x x x x.

Other notable points of Terry are that while probable cause is not required to conduct a
"stop-and-frisk," it nevertheless holds that mere suspicion or a hunch will not validate a "stop-
and-frisk." A genuine reason must exist, in light of the police officer's experience and surrounding
conditions, to warrant the belief that the person detained has weapons concealed about him.
(Sanchez v. People, G.R. No. 204589, November 19, 2014)

Police officers cannot justify unbridled searches and be shielded by this exception, unless
there is compliance with the "genuine reason" requirement and that the search serves the purpose
of protecting the public. (People v. Cogaed, G.R. No. 200334, July 30, 2014)

[T]here could be no valid "stop-and-frisk" search in the case at bench. Elucidating on what
constitutes "stop-and-frisk" operation and how it is to be carried out, the Court in People v. Chua
wrote:

A stop and frisk was defined as the act of a police officer to stop a citizen on the
street, interrogate him, and pat him for weapon(s) or contraband. The police officer
should properly introduce himself and make initial inquiries, approach and restrain a
person who manifests unusual and suspicious conduct, in order to check the latter’s
outer clothing for possibly concealed weapons. The apprehending police officer must
have a genuine reason, in accordance with the police officer’s experience and the
surrounding conditions, to warrant the belief that the person to be held has weapons (or
contraband) concealed about him. It should therefore be emphasized that a search and
seizure should precede the arrest for this principle to apply.

In this jurisdiction, what may be regarded as a genuine reason or a reasonable suspicion

justifying a Terry stop-and-frisk search had been sufficiently illustrated in two cases. In Manalili
v. Court of Appeals and People, a policeman chanced upon Manalili in front of the cemetery who
appeared to be "high" on drugs as he was observed to have reddish eyes and to be walking in a
swaying manner. Moreover, he appeared to be trying to avoid the policemen and when
approached and asked what he was holding in his hands, he tried to resist. When he showed his
wallet, it contained marijuana. The Court held that the policeman had sufficient reason to accost
Manalili to determine if he was actually "high" on drugs due to his suspicious actuations, coupled
with the fact that the area was a haven for drug addicts.

In People v. Solayao, the Court also found justifiable reason for the police to stop and frisk
the accused after considering the following circumstances: the drunken actuations of the accused
and his companions; the fact that his companions fled when they saw the policemen; and the fact
that the peace officers were precisely on an intelligence mission to verify reports that armed
persons where roaming the vicinity. Seemingly, the common thread of these examples is the
presence of more than one seemingly innocent activity, which, taken together, warranted a
reasonable inference of criminal activity. It was not so in the case at bench.

The Court does not find the totality of the circumstances described by SPO1 Amposta as
sufficient to incite a reasonable suspicion that would justify a stop-and-frisk search on Sanchez.
Coming out from the house of a drug pusher and boarding a tricycle, without more, were
innocuous movements, and by themselves alone could not give rise in the mind of an experienced
50 | P a g e
and prudent police officer of any belief that he had shabu in his possession, or that he was
probably committing a crime in the presence of the officer. There was even no allegation that
Sanchez left the house of the drug dealer in haste or that he acted in any other suspicious manner.
There was no showing either that he tried to evade or outmaneuver his pursuers or that he
attempted to flee when the police officers approached him. Truly, his acts and the surrounding
circumstances could not have engendered any reasonable suspicion on the part of the police
officers that a criminal activity had taken place or was afoot.

A stop and frisk was defined as the act of a police officer to stop a citizen on the street,
interrogate him, and pat him for weapon(s) or contraband. The police officer should properly
introduce himself and make initial inquiries, approach and restrain a person who manifests
unusual and suspicious conduct, in order to check the latter’s outer clothing for possibly concealed
weapons. The apprehending police officer must have a genuine reason, in accordance with the
police officer’s experience and the surrounding conditions, to warrant the belief that the person
to be held has weapons concealed about him. It should therefore be emphasized that a search and
seizure should precede the arrest for this principle to apply.

Coming out from the house of a drug pusher and boarding a tricycle, without more, were
innocuous movements, and by themselves alone could not give rise in the mind of an experienced
and prudent police officer of any belief that he had shabu in his possession, or that he was
probably committing a crime in the presence of the officer. (Sanchez v. People, G.R. No. 204589,
November 19, 2014)

Warrantless search: Plain view doctrine: Requirements: 1) prior justification

for an intrusion; 2) discovery is inadvertent; and 3) object is immediately apparent.
Contraband inside a match box being held by the person unlawfully arrested, and
which was not readily apparent to the police officers cannot be validly seized under
the plain view doctrine.

Under the plain view doctrine, objects falling in the plain view of an officer who has a right
to be in the position to have that view are subject to seizure and may be presented as evidence.
The plain view doctrine applies when the following requisites concur: (1) the law enforcement
officer in search of the evidence has a prior justification for an intrusion or is in a position from
which he can view a particular area; (2) the discovery of the evidence in plain view is inadvertent;
and (3) it is immediately apparent to the officer that the item he observes may be evidence of a
crime, contraband or otherwise subject to seizure.

Measured against the foregoing standards, it is readily apparent that the seizure of the
subject shabu does not fall within the plain view exception. First, there was no valid intrusion. As
already discussed, Sanchez was illegally arrested. Second, subject shabu was not inadvertently
discovered, and third, it was not plainly exposed to sight. Here, the subject shabu was allegedly
inside a match box being then held by Sanchez and was not readily apparent or transparent to the
police officers. (Sanchez v. People, G.R. No. 204589, November 19, 2014)

Warrantless search: Plain view doctrine: Contraband lying outside of a

suspect’s house and exposed to the sight of police officers serving a search warrant
can be seized under the plain view doctrine.

The constitutional prohibition against warrantless searches and seizures admits of certain
exceptions, one of which is seizure of evidence in plain view. Under the plain view doctrine, objects
falling in the "plain view" of an officer, who has a right to be in the position to have that view, are
subject to seizure and may be presented as evidence.

There is no question that the DENR personnel were not armed with a search warrant when
they went to the house of the petitioner. When the DENR personnel arrived at the petitioner’s
house, the lumbers were lying under the latter’s house and at the shoreline about two meters away
from the house of the petitioner. It is clear, therefore, that the said lumber is plainly exposed to
sight. Hence, the seizure of the lumber outside the petitioner’s house falls within the purview of
the plain view doctrine. (Crescencio v People, G.R. No. 205015, November 19, 2014)

Warrantless search: Consented search: Silence is not necessarily consent to a

search but mere passive conformity given under intimidating or coercive
circumstances. The police carry the burden of showing that the waiver of a
constitutional right is one which is knowing, intelligent, and free from any coercion.
The prosecution and the police carry the burden of showing that the waiver of a

51 | P a g e
constitutional right is one which is knowing, intelligent, and free from any coercion.
In all cases, such waivers are not to be presumed.

Appellant’s silence should not be lightly taken as consent to such search. The implied
acquiescence to the search, if there was any, could not have been more than mere passive
conformity given under intimidating or coercive circumstances and is thus considered no consent
at all within the purview of the constitutional guarantee. The prosecution and the police carry the
burden of showing that the waiver of a constitutional right is one which is knowing, intelligent,
and free from any coercion. In all cases, such waivers are not to be presumed. (People v. Cogaed,
G.R. No. 200334, July 30, 2014)

Warrantless arrest: Plain view doctrine: Evidence cannot be considered

“inadvertently discovered” for purposes of seizure of evidence in plain view if the
police officers intentionally entered the house with no prior surveillance or
investigation.

Neither can it be said that the subject items were seized in plain view. The elements of
plain view are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police
are legally present in the pursuit of their official duties; (b) the evidence was inadvertently
discovered by the police who have the right to be where they are; (c) the evidence must be
immediately apparent; and, (d) "plain view" justified mere seizure of evidence without further
search.

The evidence was not inadvertently discovered as the police officers intentionally entered
the house with no prior surveillance or investigation before they discovered the accused with the
subject items. If the prior peeking of the police officers in Bolasa was held to be insufficient to
constitute plain view, then more so should the warrantless search in this case be struck down.
Neither can the search be considered as a search of a moving vehicle, a consented warrantless
search, a customs search, a stop and frisk, or one under exigent and emergency circumstances.

The apprehending officers should have first conducted a surveillance considering that the
identity and address of one of the accused were already ascertained. After conducting the
surveillance and determining the existence of probable cause, then a search warrant should have
been secured prior to effecting arrest and seizure. The arrest being illegal, the ensuing search as a
result thereof is likewise illegal. Evidence procured on the occasion of an unreasonable search and
seizure is deemed tainted for being the proverbial fruit of a poisonous tree and should be excluded.
(People v. Martinez, G.R. No. 191366, December 13, 2010)

Airport security searches are valid even without a warrant, because of their
minimal intrusiveness, the gravity of the safety interests involved, and the reduced
privacy expectations associated with airline travel.

[T]he prosecution has satisfactorily established that airport security officers found in the
person of petitioner the marijuana fruiting tops contained in rolled paper sticks during the final
security check at the airport’s pre-departure area. Petitioner at first refused to show the contents
of his short pants pocket to Soriano who became suspicious when his hand felt the "slightly
bulging" item while frisking petitioner.

In People v. Johnson, which also involved seizure of a dangerous drug from a passenger
during a routine frisk at the airport, this Court ruled that such evidence obtained in a warrantless
search was acquired legitimately pursuant to airport security procedures, thus:

Persons may lose the protection of the search and seizure clause by exposure of their
persons or property to the public in a manner reflecting a lack of subjective expectation of privacy,
which expectation society is prepared to recognize as reasonable. Such recognition is implicit in
airport security procedures. With increased concern over airplane hijacking and terrorism has
come increased security at the nation’s airports. Passengers attempting to board an aircraft
routinely pass through metal detectors; their carry-on baggage as well as checked luggage are
routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious
objects, physical searches are conducted to determine what the objects are. There is little question
that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety
interests involved, and the reduced privacy expectations associated with airline travel. Indeed,
travelers are often notified through airport public address systems, signs, and notices in their
airline tickets that they are subject to search and, if any prohibited materials or substances are
52 | P a g e
found, such would be subject to seizure. These announcements place passengers on notice that
ordinary constitutional protections against warrantless searches and seizures do not apply to
routine airport procedures.

xxx

We find no irregularity in the search conducted on petitioner who was asked to empty the
contents of his pockets upon the frisker’s reasonable belief that what he felt in his hand while
frisking petitioner’s short pants was a prohibited or illegal substance.

Such search was made pursuant to routine airport security procedure, which is allowed
under Section 9 of R.A. No. 6235. Said provision reads:

SEC. 9. Every ticket issued to a passenger by the airline or air carrier concerned shall contain
among others the following condition printed thereon: "Holder hereof and his hand-carried luggage(s)
are subject to search for, and seizure of, prohibited materials or substances. Holder refusing to be
searched shall not be allowed to board the aircraft," which shall constitute a part of the contract
between the passenger and the air carrier. (Italics in the original)

The ruling in People v. Johnson was applied in People v. Canton where the accused, a
female passenger was frisked at the NAIA after passing through the metal detector booth that
emitted a beeping sound. Since the frisker noticed something bulging at accused’s abdomen,
thighs and genital area, which felt like packages containing rice granules, accused was subjected
to a thorough physical examination inside the ladies’ room. Three sealed packages were taken
from accused’s body which when submitted for laboratory examination yielded positive results
for methamphetamine hydrochloride or shabu. Accused was forthwith arrested and prosecuted
for illegal possession of a regulated drug.

Affirming accused Canton’s conviction for the crime of illegal possession of shabu, we
ruled that accused-appellant was lawfully arrested without a warrant after being caught in
flagrante delicto. We further held that the scope of a search pursuant to airport security procedure
is not confined only to search for weapons under the "Terry search" doctrine. The more extensive
search conducted on accused Canton was necessitated by the discovery of packages on her body,
her apprehensiveness and false statements which aroused the suspicion of the frisker that she was
hiding something illegal. Thus:

x x x. It must be repeated that R.A. No. 6235 authorizes search for prohibited
materials or substances. To limit the action of the airport security personnel to simply
refusing her entry into the aircraft and sending her home (as suggested by appellant), and
thereby depriving them of "the ability and facility to act accordingly, including to further
search without warrant, in light of such circumstances, would be to sanction impotence and
ineffectivity in law enforcement, to the detriment of society." Thus, the strip search in the
ladies’ room was justified under the circumstances. (Emphasis supplied)

The search of the contents of petitioner’s short pants pockets being a valid search pursuant
to routine airport security procedure, the illegal substance (marijuana) seized from him was
therefore admissible in evidence. Petitioner’s reluctance to show the contents of his short pants
pocket after the frisker’s hand felt the rolled papers containing marijuana, and his nervous
demeanor aroused the suspicion of the arresting officers that he was indeed carrying an item or
material subject to confiscation by the said authorities. (Sales v. People, G.R. No. 191023,
February 06, 2013)

To establish a violation of one’s right against unreasonable searches and

seizures, one must first prove that he has exhibited an actual (subjective) expectation
of privacy in the place searched or the item seized; and second, his subjective
expectation is one that society is prepared to recognize as reasonable (objective).

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right
protected by the guarantee against unreasonable search and seizure under Section 2, Article III
of the 1987 Constitution, which provides:

SEC. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.

53 | P a g e
 The constitutional guarantee is not a prohibition of all searches and seizures but only of
unreasonable searches and seizures. x x x

The constitutional guarantee is not a prohibition of all searches and seizures but only of
unreasonable searches and seizures. But to fully understand this concept and application for the
purpose of resolving the issue at hand, it is essential that we examine the doctrine in the light of
pronouncements in another jurisdiction. As the Court declared in People v. Marti:

Our present constitutional provision on the guarantee against unreasonable search

and seizure had its origin in the 1935 Charter which, x x x was in turn derived almost
verbatim from the Fourth Amendment to the United States Constitution. As such, the
Court may turn to the pronouncements of the United States Federal Supreme Court and
State Appellate Courts which are considered doctrinal in this jurisdiction .

In the 1967 case of Katz v. United States, the US Supreme Court held that the act of FBI
agents in electronically recording a conversation made by petitioner in an enclosed public
telephone booth violated his right to privacy and constituted a search and seizure. Because the
petitioner had a reasonable expectation of privacy in using the enclosed booth to make a personal
telephone call, the protection of the Fourth Amendment extends to such area. In the concurring
opinion of Mr. Justice Harlan, it was further noted that the existence of privacy right under prior
decisions involved a two-fold requirement: first, that a person has exhibited an actual (subjective)
expectation of privacy; and second, that the expectation be one that society is prepared to
recognize as reasonable (objective). (Pollo v. Constantino-David, G.R. No. 181881, October 18,
2011)

A government employee’s expectation of privacy in a regulated office

environment is reduced. The employee’s privacy interest in an office is to a large
extent limited by the company’s work policies, the collective bargaining agreement,
if any, and the inherent right of the employer to maintain discipline and efficiency in
the workplace.

In Mancusi v. DeForte which addressed the reasonable expectations of private employees

in the workplace, the US Supreme Court held that a union employee had Fourth Amendment
rights with regard to an office at union headquarters that he shared with other union officials,
even as the latter or their guests could enter the office. The Court thus recognized that employees
may have a reasonable expectation of privacy against intrusions by police.

That the Fourth Amendment equally applies to a government workplace was addressed in
the 1987 case of OConnor v. Ortega where a physician, Dr. Magno Ortega, who was employed by
a state hospital, claimed a violation of his Fourth Amendment rights when hospital officials
investigating charges of mismanagement of the psychiatric residency program, sexual harassment
of female hospital employees and other irregularities involving his private patients under the state
medical aid program, searched his office and seized personal items from his desk and filing
cabinets. In that case, the Court categorically declared that [i]ndividuals do not lose Fourth
Amendment rights merely because they work for the government instead of a private employer. A
plurality of four Justices concurred that the correct analysis has two steps: first, because some
government offices may be so open to fellow employees or the public that no expectation of
privacy is reasonable, a court must consider [t]he operational realities of the workplace in order
to determine whether an employees Fourth Amendment rights are implicated; and next, where
an employee has a legitimate privacy expectation, an employers intrusion on that expectation for
noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct,
should be judged by the standard of reasonableness under all the circumstances.

On the matter of government employees’ reasonable expectations of privacy in their

workplace, OConnor teaches:

x x x Public employees expectations of privacy in their offices, desks, and file

cabinets, like similar expectations of employees in the private sector, may be reduced by
virtue of actual office practices and procedures, or by legitimate regulation. x x x The
employees expectation of privacy must be assessed in the context of the employment
relation. x x x Simply put, it is the nature of government offices that others such as fellow
employees, supervisors, consensual visitors, and the general public may have frequent
access to an individuals office. We agree with JUSTICE SCALIA that [c]onstitutional
54 | P a g e
 protection against unreasonable searches by the government does not disappear merely
because the government has the right to make reasonable intrusions in its capacity as
employer, x x x but some government offices may be so open to fellow employees
or the public that no expectation of privacy is reasonable. x x x Given the great
variety of work environments in the public sector, the question of whether an
employee has a reasonable expectation of privacy must be addressed on a
case-by-case basis. (Citations omitted; emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court declared that
Dr. Ortegas Fourth Amendment rights are implicated only if the conduct of the hospital officials
infringed an expectation of privacy that society is prepared to consider as reasonable. Given the
undisputed evidence that respondent Dr. Ortega did not share his desk or file cabinets with any
other employees, kept personal correspondence and other private items in his own office while
those work-related files (on physicians in residency training) were stored outside his office, and
there being no evidence that the hospital had established any reasonable regulation or policy
discouraging employees from storing personal papers and effects in their desks or file cabinets
(although the absence of such a policy does not create any expectation of privacy where it would
not otherwise exist), the Court concluded that Dr. Ortega has a reasonable expectation of privacy
at least in his desk and file cabinets.

Proceeding to the next inquiry as to whether the search conducted by hospital officials was
reasonable, the OConnor plurality decision discussed the following principles:

Having determined that Dr. Ortega had a reasonable expectation of privacy in his
office, the Court of Appeals simply concluded without discussion that the search was not a
reasonable search under the fourth amendment. x x x [t]o hold that the Fourth Amendment
applies to searches conducted by [public employers] is only to begin the inquiry into the
standards governing such searches[W]hat is reasonable depends on the context within
which a search takes place. x x x Thus, we must determine the appropriate standard of
reasonableness applicable to the search. A determination of the standard of reasonableness
applicable to a particular class of searches requires balanc[ing] the nature and quality of
the intrusion on the individuals Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion. x x x In the case of searches
conducted by a public employer, we must balance the invasion of the
employees legitimate expectations of privacy against the governments need
for supervision, control, and the efficient operation of the workplace.

xxxx

In our view, requiring an employer to obtain a warrant whenever the employer

wished to enter an employee’s office, desk, or file cabinets for a work-related purpose would
seriously disrupt the routine conduct of business and would be unduly
burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who
would otherwise have no reason to be familiar with such procedures, is simply
unreasonable. In contrast to other circumstances in which we have required warrants,
supervisors in offices such as at the Hospital are hardly in the business of investigating the
violation of criminal laws. Rather, work-related searches are merely incident to the primary
business of the agency. Under these circumstances, the imposition of a warrant
requirement would conflict with the common-sense realization that government offices
could not function if every employment decision became a constitutional matter. x x x

xxxx

The governmental interest justifying work-related intrusions by public employers

is the efficient and proper operation of the workplace. Government agencies provide
myriad services to the public, and the work of these agencies would suffer if employers were
required to have probable cause before they entered an employees’ desk for the purpose of
finding a file or piece of office correspondence. Indeed, it is difficult to give the concept of
probable cause, rooted as it is in the criminal investigatory context, much meaning when
the purpose of a search is to retrieve a file for work-related reasons. Similarly, the concept
of probable cause has little meaning for a routine inventory conducted by public employers
for the purpose of securing state property. x x x To ensure the efficient and proper operation
of the agency, therefore, public employers must be given wide latitude to enter employee
offices for work-related, noninvestigatory reasons.

We come to a similar conclusion for searches conducted pursuant to an

investigation of work-related employee misconduct. Even when employers conduct an
investigation, they have an interest substantially different from the normal need for law
enforcement. x x x Public employers have an interest in ensuring that their agencies
operate in an effective and efficient manner, and the work of these agencies inevitably
suffers from the inefficiency, incompetence, mismanagement, or other work-related
55 | P a g e
 misfeasance of its employees. Indeed, in many cases, public employees are entrusted with
tremendous responsibility, and the consequences of their misconduct or incompetence to
both the agency and the public interest can be severe. In contrast to law enforcement
officials, therefore, public employers are not enforcers of the criminal law; instead, public
employers have a direct and overriding interest in ensuring that the work of the agency is
conducted in a proper and efficient manner. In our view, therefore, a probable cause
requirement for searches of the type at issue here would impose intolerable
burdens on public employers. The delay in correcting the employee
misconduct caused by the need for probable cause rather than reasonable
suspicion will be translated into tangible and often irreparable damage to the
agency’s work, and ultimately to the public interest. x x x

xxxx

In sum, we conclude that the special needs, beyond the normal need for
law enforcement make the probable-cause requirement impracticable, x x x
for legitimate, work-related noninvestigatory intrusions as well as
investigations of work-related misconduct. A standard of reasonableness will
neither unduly burden the efforts of government employers to ensure the efficient and
proper operation of the workplace, nor authorize arbitrary intrusions upon the privacy of
public employees. We hold, therefore, that public employer intrusions on the
constitutionally protected privacy interests of government employees for
noninvestigatory, work-related purposes, as well as for investigations of
work-related misconduct, should be judged by the standard of
reasonableness under all the circumstances. Under this reasonableness
standard, both the inception and the scope of the intrusion must be reasonable:

Determining the reasonableness of any search involves a twofold inquiry:

first, one must consider whether the action was justified at its inception, x
x x ; second, one must determine whether the search as actually conducted
was reasonably related in scope to the circumstances which justified the
interference in the first place, x x x

Ordinarily, a search of an employee’s office by a supervisor will be

justified at its inception when there are reasonable grounds for suspecting
that the search will turn up evidence that the employee is guilty of work-
related misconduct, or that the search is necessary for a noninvestigatory
work-related purpose such as to retrieve a needed file. x x x The search will be
permissible in its scope when the measures adopted are reasonably related to
the objectives of the search and not excessively intrusive in light of the nature
of the [misconduct]. x x x (Citations omitted; emphasis supplied.)

xxx

In OConnor the Court recognized that special needs authorize warrantless searches
involving public employees for work-related reasons. The Court thus laid down a balancing test
under which government interests are weighed against the employee’s reasonable expectation of
privacy. This reasonableness test implicates neither probable cause nor the warrant requirement,
which are related to law enforcement.

xxx

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board which involved the
constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates
for public office, students of secondary and tertiary schools, officers and employees of public and
private offices, and persons charged before the prosecutor’s office with certain offenses, have
also recognized the fact that there may be such legitimate intrusion of privacy in the workplace.

The first factor to consider in the matter of reasonableness is the nature of

the privacy interest upon which the drug testing, which effects a search within the
meaning of Sec. 2, Art. III of the Constitution, intrudes. x x x The employees
privacy interest in an office is to a large extent circumscribed by the
company’s work policies, the collective bargaining agreement, if any,
entered into by management and the bargaining unit, and the inherent
right of the employer to maintain discipline and efficiency in the
workplace. Their privacy expectation in a regulated office environment is, in fine,
reduced; and a degree of impingement upon such privacy has been upheld.
(Emphasis supplied.)

(Pollo v. Constantino-David, G.R. No. 181881, October 18, 2011)

56 | P a g e
 A government employee cannot have a subjective expectation of privacy in his
government-issued computer containing his personal files, if the government office
implemented a policy that put its employees on notice that they have no expectation
of privacy in anything they create, store, send or receive on the office computers.

Applying the analysis and principles announced in OConnor and Simons to the case at
bar, we now address the following questions: (1) Did petitioner have a reasonable expectation of
privacy in his office and computer files?; and (2) Was the search authorized by the CSC Chair, the
copying of the contents of the hard drive on petitioners computer reasonable in its inception and
scope?

In this inquiry, the relevant surrounding circumstances to consider include (1) the
employee’s relationship to the item seized; (2) whether the item was in the immediate control of
the employee when it was seized; and (3) whether the employee took actions to maintain his
privacy in the item. These factors are relevant to both the subjective and objective prongs of the
reasonableness inquiry, and we consider the two questions together. Thus, where the employee
used a password on his computer, did not share his office with co-workers and kept the same
locked, he had a legitimate expectation of privacy and any search of that space and items located
therein must comply with the Fourth Amendment.

We answer the first in the negative. Petitioner failed to prove that he had an actual
(subjective) expectation of privacy either in his office or government-issued computer which
contained his personal files. Petitioner did not allege that he had a separate enclosed office which
he did not share with anyone, or that his office was always locked and not open to other employees
or visitors. Neither did he allege that he used passwords or adopted any means to prevent other
employees from accessing his computer files. On the contrary, he submits that being in the public
assistance office of the CSC-ROIV, he normally would have visitors in his office like friends,
associates and even unknown people, whom he even allowed to use his computer which to him
seemed a trivial request. He described his office as full of people, his friends, unknown people and
that in the past 22 years he had been discharging his functions at the PALD, he x x x hardly had
any time for himself alone, that in fact he stays in the office as a paying customer. Under this
scenario, it can hardly be deduced that petitioner had such expectation of privacy that society
would recognize as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the

aforementioned factual circumstances, that petitioner had at least a subjective expectation of
privacy in his computer as he claims, such is negated by the presence of policy regulating the use
of office computers, as in Simons.

Office Memorandum No. 10, S. 2002 Computer Use Policy (CUP) explicitly provides:

POLICY

1. The Computer Resources are the property of the Civil Service

Commission and may be used only for legitimate business purposes.
2. Users shall be permitted access to Computer Resources to assist them in
the performance of their respective jobs.
3. Use of the Computer Resources is a privilege that may be revoked at any
given time.

xxxx

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission

shall not have an expectation of privacy in anything they create, store, send, or
receive on the computer system.

The Head of the Office for Recruitment, Examination and Placement shall
select and assign Users to handle the confidential examination data and processes.

5. Waiver of privacy rights. Users expressly waive any right to privacy

in anything they create, store, send, or receive on the computer through the Internet
or any other computer network. Usersunderstand that the CSC may use human
or automated means to monitor the use of its Computer Resources.
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 6. Non-exclusivity of Computer Resources. A computer resource is not a
personal property or for the exclusive use of a User to whom a memorandum of
receipt (MR) has been issued. It can be shared or operated by other users. However,
he is accountable therefor and must insure its care and maintenance.

xxxx

Passwords

xxx

13. Passwords do not imply privacy. Use of passwords to gain access to the
computer system or to encode particular files or messages does not imply
that Users have an expectation of privacy in the material they create or receive on
the computer system. xxx

x x x x (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice that they
have no expectation of privacy in anything they create, store, send or receive on the office
computers, and that the CSC may monitor the use of the computer resources using both
automated or human means. This implies that on-the-spot inspections may be done to ensure
that the computer resources were used only for such legitimate business purposes. (Pollo v.
Constantino-David, G.R. No. 181881, October 18, 2011)

A warrantless search by a government employer of an employees’ office in

connection with investigation of work-related misconduct is justified at inception
when there are reasonable grounds for suspecting that it will turn up evidence that
the employee is guilty of work-related misconduct. Thus, a search of a government
employee’s files in the government-issued computer, conducted in connection with
investigation of work-related misconduct prompted by an anonymous letter-
complaint -- is reasonable.

As to the second point of inquiry on the reasonableness of the search conducted on

petitioner’s computer, we answer in the affirmative.

The search of petitioners’ computer files was conducted in connection with investigation
of work-related misconduct prompted by an anonymous letter-complaint addressed to
Chairperson David regarding anomalies in the CSC-ROIV where the head of the Mamamayan
Muna Hindi Mamaya Na division is supposedly lawyering for individuals with pending cases in
the CSC. x x x

xxxx

A search by a government employer of an employee’s office is justified at inception when

there are reasonable grounds for suspecting that it will turn up evidence that the employee is
guilty of work-related misconduct. x x x

Under the facts obtaining, the search conducted on petitioners computer was justified at
its inception and scope. We quote with approval the CSCs discussion on the reasonableness of its
actions, consistent as it were with the guidelines established by OConnor:

Even conceding for a moment that there is no such administrative policy, there is
no doubt in the mind of the Commission that the search of Pollos computer has successfully
passed the test of reasonableness for warrantless searches in the workplace as enunciated
in the above-discussed American authorities. It bears emphasis that the Commission
pursued the search in its capacity as a government employer and that it was
undertaken in connection with an investigation involving a work-related
misconduct, one of the circumstances exempted from the warrant requirement. At the
inception of the search, a complaint was received recounting that a certain division chief in
the CSCRO No. IV was lawyering for parties having pending cases with the said regional
office or in the Commission. The nature of the imputation was serious, as it was
grievously disturbing. If, indeed, a CSC employee was found to be furtively engaged in
the practice of lawyering for parties with pending cases before the Commission x x x [i]t

58 | P a g e
 would undeniably cast clouds of doubt upon the institutional integrity of the Commission
as a quasi-judicial agency x x x.

Considering the damaging nature of the accusation, the Commission

had to act fast, if only to arrest or limit any possible adverse consequence or fall-
out. Thus, on the same date that the complaint was received, a search was forthwith
conducted involving the computer resources in the concerned regional office. That it was
the computers that were subjected to the search was justified since these
furnished the easiest means for an employee to encode and store
documents. xxx Concomitantly, the ephemeral nature of computer files, that
is, they could easily be destroyed at a click of a button, necessitated drastic and
immediate action. Pointedly, to impose the need to comply with the probable cause
requirement would invariably defeat the purpose of the wok-related investigation.

xxx

All in all, the Commission is convinced that the warrantless search done on
computer assigned to Pollo was not, in any way, vitiated with unconstitutionality. It was a
reasonable exercise of the managerial prerogative of the Commission as an employer aimed
at ensuring its operational effectiveness and efficiency by going after the work-related
misfeasance of its employees. Consequently, the evidence derived from the questioned
search are deemed admissible.

Petitioner’s claim of violation of his constitutional right to privacy must necessarily

fail. His other argument invoking the privacy of communication and correspondence under
Section 3(1), Article III of the 1987 Constitution is also untenable considering the recognition
accorded to certain legitimate intrusions into the privacy of employees in the government
workplace under the aforecited authorities. x x x As already mentioned, the search of petitioners
computer was justified there being reasonable ground for suspecting that the files stored therein
would yield incriminating evidence relevant to the investigation being conducted by CSC as
government employer of such misconduct subject of the anonymous complaint. This situation
clearly falls under the exception to the warrantless requirement in administrative searches
defined in OConnor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty.
Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila involving a branch clerk
(Atty. Morales) who was investigated on the basis of an anonymous letter alleging that he was
consuming his working hours filing and attending to personal cases, using office supplies,
equipment and utilities. The OCA conducted a spot investigation aided by NBI agents. The team
was able to access Atty. Morales personal computer and print two documents stored in its hard
drive, which turned out to be two pleadings, one filed in the CA and another in the RTC of Manila,
both in the name of another lawyer. Atty. Morales computer was seized and taken in custody of
the OCA but was later ordered released on his motion, but with order to the MISO to first retrieve
the files stored therein. The OCA disagreed with the report of the Investigating Judge that there
was no evidence to support the charge against Atty. Morales as no one from the OCC personnel
who were interviewed would give a categorical and positive statement affirming the charges
against Atty. Morales, along with other court personnel also charged in the same case. The OCA
recommended that Atty. Morales should be found guilty of gross misconduct. The Court En
Banc held that while Atty. Morales may have fallen short of the exacting standards required of
every court employee, the Court cannot use the evidence obtained from his personal computer
against him for it violated his constitutional right against unreasonable searches and seizures. The
Court found no evidence to support the claim of OCA that they were able to obtain the subject
pleadings with the consent of Atty. Morales, as in fact the latter immediately filed an
administrative case against the persons who conducted the spot investigation, questioning the
validity of the investigation and specifically invoking his constitutional right against unreasonable
search and seizure. And as there is no other evidence, apart from the pleadings, retrieved from
the unduly confiscated personal computer of Atty. Morales, to hold him administratively liable,
the Court had no choice but to dismiss the charges against him for insufficiency of evidence.

The above case is to be distinguished from the case at bar because, unlike the former which
involved a personal computer of a court employee, the computer from which the personal files
of herein petitioner were retrieved is a government-issued computer, hence government property
the use of which the CSC has absolute right to regulate and monitor. Such relationship of the
petitioner with the item seized (office computer) and other relevant factors and circumstances
under American Fourth Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007
on Computer Use Policy, failed to establish that petitioner had a reasonable expectation of privacy

59 | P a g e
in the office computer assigned to him. (Pollo v. Constantino-David, G.R. No. 181881, October
18, 2011)

For a warrantless arrest of an accused caught in flagrante delicto to be valid,

two requisites must concur: (1) the person to be arrested must execute an overt act
indicating that he has just committed, is actually committing, or is attempting to
commit a crime; and (2) such overt act is done in the presence or within the view of
the arresting officer." Trying to run away when no crime has been overtly committed,
and without more, cannot be evidence of guilt. Flight per se is not synonymous with
guilt.

Section 5(a), Rule 113 of the Rules of Criminal Procedure provides that a peace officer or
a private person may, without a warrant, arrest a person when, in his presence, the person to be
arrested has committed, is actually committing, or is attempting to commit an offense. This is
known an arrest in flagrante delicto.

"For a warrantless arrest of an accused caught in flagrante delicto to be valid, two

requisites must concur: (1) the person to be arrested must execute an overt act indicating that he
has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt
act is done in the presence or within the view of the arresting officer."

In the present case, there was no overt act indicative of a felonious enterprise that could
be properly attributed to the appellant to rouse suspicion in the mind of PO3 Corbe that he
(appellant) had just committed, was actually committing, or was attempting to commit a crime.
In fact, PO3 Corbe testified that the appellant and the informant were just talking with each other
when he approached them. x x x

As testified to by PO3 Corbe himself, the appellant and the informant were just talking to
each other; there was no exchange of money and drugs when he approached the car. Notably,
while it is true that the informant waved at PO3 Corbe, the latter admitted that this was not the
pre-arranged signal to signify that the sale of drugs had been consummated. PO3 Corbe also
admitted on cross-examination that he had no personal knowledge on whether there was a
prohibited drug and gun inside the space wagon when he approached it.

That the appellant attempted to run away when PO3 Corbe approached him is irrelevant
and cannot by itself be construed as adequate to charge the police officer with personal knowledge
that the appellant had just engaged in, was actually engaging in or was attempting to engage in
criminal activity.

As the Court explained in People v. Villareal:

Furthermore, appellant’s act of darting away when PO3 de Leon approached him
should not be construed against him. Flight per se is not synonymous with guilt and must
not always be attributed to one’s consciousness of guilt. It is not a reliable indicator of guilt
without other circumstances, for even in high crime areas there are many innocent reasons
for flight, including fear of retribution for speaking to officers, unwillingness to appear as
witnesses, and fear of being wrongfully apprehended as a guilty party. Thus, appellant’s
attempt to run away from PO3 de Leon is susceptible of various explanations; it could easily
have meant guilt just as it could likewise signify innocence.

In other words, trying to run away when no crime has been overtly committed, and without
more, cannot be evidence of guilt.

Considering that the appellant’s warrantless arrest was unlawful, the search and seizure
that resulted from it was likewise illegal. Thus, the alleged plastic bag containing white crystalline
substances seized from him is inadmissible in evidence, having come from an invalid search and
seizure. (People v. Edano, G.R. No. 188133, July 7, 2014)

Reliable information alone is not enough to justify a warrantless arrest. The

accused must perform some overt act that would indicate that he has committed, is
actually committing, or is attempting to commit an offense.

The long standing rule in this jurisdiction is that "reliable information" alone is not
sufficient to justify a warrantless arrest. The rule requires, in addition, that the accused perform

60 | P a g e
some overt act that would indicate that he has committed, is actually committing, or is attempting
to commit an offense. (People v. Racho, G.R. No. 186529, August 3, 2010)

“Overt act” requirement in in flagrante delicto arrest: The mere act of leaving
a residence of a known drug peddler is not sufficient for a valid arrest, unless there is
an overt manifestation that the person had just engaged in, was actually engaging in
or was attempting to engage in the criminal activity of illegal possession of shabu.

Even granting arguendo that Sanchez was arrested before the search, still the warrantless
search and seizure must be struck down as illegal because the warrantless arrest was unlawful.
Section 5, Rule 113 of the Rules of Criminal Procedure lays down the basic rules on lawful
warrantless arrests, either by a peace officer or a private person, as follows:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person
may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actuallly
committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person to be
arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.

xxx

For warrantless arrest under paragraph (a) of Section 5 (in flagrante delicto arrest) to
operate, two elements must concur: (1) the person to be arrested must execute an overt act
indicating that he has just committed, is actually committing, or is attempting to commit a crime;
and (2) such overt act is done in the presence or within the view of the arresting officer. On the
other hand, paragraph (b) of Section 5 (arrest effected in hot pursuit) requires for its application
that at the time of the arrest, an offense has in fact just been committed and the arresting officer
has personal knowledge of facts indicating that the person to be apprehended has committed it.
These elements would be lacking in the case at bench.

The evidence on record reveals that no overt physical act could be properly attributed to
Sanchez as to rouse suspicion in the minds of the police operatives that he had just committed,
was committing, or was about to commit a crime. Sanchez was merely seen by the police
operatives leaving the residence of a known drug peddler, and boarding a tricycle that proceeded
towards the direction of Kawit, Cavite. Such acts cannot in any way be considered criminal acts.
In fact, even if Sanchez had exhibited unusual or strange acts, or at the very least appeared
suspicious, the same would not have been considered overt acts in order for the police officers to
effect a lawful warrantless arrest under paragraph (a) of Section 5, Rule 113.

It has not been established either that the rigorous conditions set forth in paragraph (b)
of Section 5 have been complied with in this warrantless arrest. When the police officers chased
the tricycle, they had no personal knowledge to believe that Sanchez bought shabu from the
notorious drug dealer and actually possessed the illegal drug when he boarded the tricycle. x x x
The police officers in this case had no inkling whatsoever as to what Sanchez did inside the house
of the known drug dealer. Besides, nowhere in the prosecution evidence does it show that the drug
dealer was conducting her nefarious drug activities inside her house so as to warrant the police
officers to draw a reasonable suspicion that Sanchez must have gotten shabu from her and
possessed the illegal drug when he came out of the house. In other words, there was no overt
manifestation on the part of Sanchez that he had just engaged in, was actually engaging in or was
attempting to engage in the criminal activity of illegal possession of shabu. (Sanchez v. People,
G.R. No. 204589, November 19, 2014)

In a hot pursuit arrest, police presence at the scene while the crime was being
committed is not required. It is enough that evidence of the recent commission of the
crime is patent and the police officer has probable cause to believe, based on personal
knowledge of facts or circumstances, that the person to be arrested has recently
committed the crime.
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 To summarize, the arresting officers went to the scene of the crime upon the complaint of
Atty. Generoso of his alleged mauling; the police officers responded to the scene of the crime less
than one (1) hour after the alleged mauling; the alleged crime transpired in a community where
Atty. Generoso and the petitioners reside; Atty. Generoso positively identified the petitioners as
those responsible for his mauling and, notably, the petitioners and Atty. Generoso lived almost in
the same neighborhood; more importantly, when the petitioners were confronted by the arresting
officers, they did not deny their participation in the incident with Atty. Generoso, although they
narrated a different version of what transpired.

With these facts and circumstances that the police officers gathered and which they have
personally observed less than one hour from the time that they have arrived at the scene of the
crime until the time of the arrest of the petitioners, we deem it reasonable to conclude that the
police officers had personal knowledge of facts or circumstances justifying the petitioners'
warrantless arrests. These circumstances were well within the police officers' observation,
perception and evaluation at the time of the arrest. These circumstances qualify as the police
officers' personal observation, which are within their personal knowledge, prompting them to
make the warrantless arrests.

Similar to the factual antecedents in Jayson, the police officers in the present case saw
Atty. Generoso in his sorry bloodied state. As the victim, he positively identified the petitioners as
the persons who mauled him; however, instead of fleeing like what happened in Jayson, the
petitioners agreed to go with the police officers.

In determining the reasonableness of the warrantless arrests, it is incumbent upon the

courts to consider if the police officers have complied with the requirements set under Section
5(b), Rule 113 of the Revised Rules of Criminal Procedure, specifically, the requirement of
immediacy; the police officer's personal knowledge of facts or circumstances; and lastly, the
propriety of the determination of probable cause that the person sought to be arrested committed
the crime.

The records show that soon after the report of the incident occurred, SPOl Monsalve
immediately dispatched the arresting officer, SP02 Javier, to render personal assistance to the
victim. This fact alone negates the petitioners' argument that the police officers did not have
personal knowledge that a crime had been committed -the police immediately responded and had
personal knowledge that a crime had been committed.

To reiterate, personal knowledge of a crime just committed under the terms of the above-
cited provision, does not require actual presence at the scene while a crime was being committed;
it is enough that evidence of the recent commission of the crime is patent (as in this case) and the
police officer has probable cause to believe based on personal knowledge of facts or circumstances,
that the person to be arrested has recently committed the crime. (Pestilos v. Generoso, G.R. No.
182601, November 10, 2014)

The arrest of a person who has presented himself before the police station to
clear his name and prove that he is not the accused -- is not valid, as he was neither
committing nor attempting to commit an offense, and the police officers had no
personal knowledge of any offense that he might have committed.

It is undisputed that petitioner Salibo presented himself before the Datu Hofer Police
Station to clear his name and to prove that he is not the accused Butukan S. Malang

[P]etitioner Salibo was not validly arrested without a warrant. Rule 113, Section 5 of the
Rules of Court enumerates the instances when a warrantless arrest may be made:

SEC. 5. Arrest without warrant; when lawful.—A peace officer or a private person may, without
a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or
is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment
or place where he is serving final judgment or is temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.

62 | P a g e
 xxx

It is undisputed that petitioner Salibo presented himself before the Datu Hofer Police
Station to clear his name and to prove that he is not the accused Butukan S. Malang. When
petitioner Salibo was in the presence of the police officers of Datu Hofer Police Station, he was
neither committing nor attempting to commit an offense. The police officers had no personal
knowledge of any offense that he might have committed. Petitioner Salibo was also not an escapee
prisoner.

The police officers, therefore, had no probable cause to arrest petitioner Salibo without a
warrant. They deprived him of his right to liberty without due process of law, for which a petition
for habeas corpus may be issued. (In the Matter of Petition for Habeas Corpus of Datukan
Malang Salibo, v. Warden, Quezon City Jail, G.R. No. 197597, April 8, 2015)

FREE SPEECH

When a penal statute encroaches upon the freedom of speech, a facial

challenge grounded on the void-for-vagueness doctrine is acceptable. This is to
counter the "chilling effect" on protected speech. A person who does not know
whether his speech constitutes a crime under an overbroad or vague law may simply
restrain himself from speaking to avoid being charged of a crime.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded
on the void-for-vagueness doctrine is acceptable. x x x

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.

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge
to the constitutionality of a statute even if he claims no violation of his own rights under the
assailed statute where it involves free speech on grounds of overbreadth or vagueness of the
statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that
comes from statutes violating free speech. A person who does not know whether his speech
constitutes a crime under an overbroad or vague law may simply restrain himself from speaking
in order to avoid being charged of a crime. The overbroad or vague law thus chills him into silence.
(Disini v. Secretary of Justice, G.R. No. 203335, February 18, 2014)

A facial challenge is allowed to be made to a vague statute and to one which is overbroad
because of possible "chilling effect" upon protected speech. x x x The possible harm to society in
permitting some unprotected speech to go unpunished is outweighed by the possibility that the
protected speech of others may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes. (Southern Hemisphere Engagement Network
v. Anti-Terrorism Council, G.R. No. 178552, October 5, 2010)

Overbreadth and vagueness doctrines, as facial challenges, apply only to free

speech cases, not for testing the validity of penal statutes.

The overbreadth and vagueness doctrines then have special application only to free speech
cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in
an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside
the limited context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that
"claims of facial overbreadth have been entertained in cases involving statutes which, by their
terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at
all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied
to protected conduct." x x x

63 | P a g e
 In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing "on their faces" statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made to do service when what is involved
is a criminal statute. (Southern Hemisphere Engagement Network v. Anti-Terrorism Council,
G.R. No. 178552, October 5, 2010; Estrada v. Sandiganbayan, G.R. No. 148560, November 19,
2001)

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." (Disini v. Secretary of
Justice, G.R. No. 203335, February 18, 2014)

Facial challenges can be launched to assail the validity of statutes concerning

not only protected speech, but also all other rights in the First Amendment – which
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.

In United States (US) constitutional law, a facial challenge, also known as a First
Amendment Challenge, is one that is launched to assail the validity of statutes concerning not
only protected speech, but also all other rights in the First Amendment. 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 statues, it has expanded its scope to cover statutes
not only regulating free speech, but also those involving religious freedom, and other fundamental
rights. 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 Law can indeed pass constitutional scrutiny.
(Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

The prohibition on the sending of internet “spam” under Republic Act (R.A.)
10175 (the Cybercrime Prevention Act of 2012) is a violation of freedom of
expression. To prohibit the transmission of unsolicited ads would deny a person the
right to read his emails, even unsolicited commercial ads addressed to him;
commercial speech is also entitled to protection.
Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of
cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(3) Unsolicited Commercial Communications. – The transmission of commercial

electronic communication with the use of computer system which seeks to advertise, sell, or
offer for sale products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

xxx
64 | P a g e
 The above penalizes the transmission of unsolicited commercial communications, also
known as "spam." x x x

The Government, represented by the Solicitor General, points out that unsolicited
commercial communications or spams are a nuisance that wastes the storage and network
capacities of internet service providers, reduces the efficiency of commerce and technology, and
interferes with the owner’s peaceful enjoyment of his property. Transmitting spams amounts to
trespass to one’s privacy since the person sending out spams enters the recipient’s domain without
prior permission. The OSG contends that commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads
reduce the "efficiency of computers." Secondly, people, before the arrival of the age of computers,
have already been receiving such unsolicited ads by mail. These have never been outlawed as
nuisance since people might have interest in such ads. What matters is that the recipient has the
option of not opening or reading these mail ads. That is true with spams. Their recipients always
have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his
emails, even unsolicited commercial ads addressed to him. Commercial speech is a separate
category of speech which is not accorded the same level of protection as that given to other
constitutionally guaranteed forms of expression but is nonetheless entitled to protection.The
State cannot rob him of this right without violating the constitutionally guaranteed freedom of
expression. Unsolicited advertisements are legitimate forms of expression. (Disini v. Secretary of
Justice, G.R. No. 203335, February 18, 2014)

Libel is unprotected speech and may be penalized. The government has an

obligation to protect private individuals from defamation. The cybercrime law
penalizing the author of a libelous online statement or article is valid.

The Court agrees with the Solicitor General that libel is not a constitutionally protected
speech and that the government has an obligation to protect private individuals from defamation.
Indeed, cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the
penal code, already punishes it. In effect, Section 4(c)(4) above merely affirms that online
defamation constitutes "similar means" for committing libel.

But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author
of the libelous statement or article. (Disini v. Secretary of Justice, G.R. No. 203335, February 18,
2014)

The law penalizing “aiding and abetting” the commission of internet libel is
void for being vague and overbroad. The terms "aiding or abetting" unnecessarily
sweep broadly, thereby invading the area of protected freedoms, generating a chilling
effect on those who express themselves in cyberspace. Also, netizens are not given
"fair notice" or warning as to what is criminal conduct and what is lawful conduct. Its
vagueness also causes a chilling effect on the freedom of expression.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject

to state regulation, may not be achieved by means that unnecessarily sweep its subject broadly,
thereby invading the area of protected freedoms.

xxx

Libel in the cyberspace can of course stain a person’s image with just one click of the
mouse. x x x Still, a governmental purpose, which seeks to regulate the use of this cyberspace
communication technology to protect a person’s reputation and peace of mind, cannot adopt
means that will unnecessarily and broadly sweep, invading the area of protected freedoms.

If such means are adopted, self-inhibition borne of fear of what sinister predicaments
await internet users will suppress otherwise robust discussion of public issues. Democracy will be
threatened and with it, all liberties. Penal laws should provide reasonably clear guidelines for law
enforcement officials and triers of facts to prevent arbitrary and discriminatory enforcement. The
terms "aiding or abetting" constitute broad sweep that generates chilling effect on those who
express themselves through cyberspace posts, comments, and other messages. Hence, Section 5
of the cybercrime law that punishes "aiding or abetting" libel on the cyberspace is a nullity.
65 | P a g e
 xxx

Who is to decide when to prosecute persons who boost the visibility of a posting on the
internet by liking it? Netizens are not given "fair notice" or warning as to what is criminal conduct
and what is lawful conduct. When a case is filed, how will the court ascertain whether or not one
netizen’s comment aided and abetted a cybercrime while another comment did not?

xxx

x x x Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises

apprehension on the part of internet users because of its obvious chilling effect on the freedom of
expression, especially since the crime of aiding or abetting ensnares all the actors in the
cyberspace front in a fuzzy way. (Disini v. Secretary of Justice, G.R. No. 203335, February 18,
2014)

Expressions concerning one’s homosexuality and the activity of forming a

political association that supports LGBT individuals are protected. The Comelec
cannot interfere with speech to promote an approved message or discourage a
disfavored one.

Under our system of laws, every group has the right to promote its agenda and attempt to
persuade society of the validity of its position through normal democratic means. It is in the public
square that deeply held convictions and differing opinions should be distilled and deliberated
upon.

xxx

Freedom of expression constitutes one of the essential foundations of a democratic society,

and this freedom applies not only to those that are favorably received but also to those that offend,
shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate
aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to
impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to interfere
with speech for no better reason than promoting an approved message or discouraging a
disfavored one.

This position gains even more force if one considers that homosexual conduct is not illegal
in this country. It follows that both expressions concerning one’s homosexuality and the activity
of forming a political association that supports LGBT individuals are protected as well.

xxx

We do not doubt that a number of our citizens may believe that homosexual conduct is
distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the other
hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that relationships
between individuals of the same sex are morally equivalent to heterosexual relationships. They,
too, are entitled to hold and express that view. However, as far as this Court is concerned, our
democracy precludes using the religious or moral views of one part of the community to exclude
from consideration the values of other members of the community. (Ang Ladlad LGBT Party v.
Commission on Elections, G.R. No. 190582, April 8, 2010)

Why Comelec regulation of political speech on oversized tarpaulins posted on

private property by non-candidates during elections is void

Speech with political consequences enjoys a high degree of protection.

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

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

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 xxx

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

x x x In Philippine Blooming Mills, this court discussed the preferred position occupied by
freedom of expression:
xxx

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

xxx

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

xxx

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

Prohibiting non-candidates from posting on their private property tarpaulins

containing their opinions that may affect elections is a content-based regulation that
is presumed invalid. A content-based prior restraint will only be valid it if passes the
clear and present danger test.

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

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

xxx

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

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

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

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

xxx

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

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

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 Even with the clear and present danger test, respondents failed to justify the regulation.
There is no compelling and substantial state interest endangered by the posting of the tarpaulin
as to justify curtailment of the right of freedom of expression. xxx

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

of the utterance or speech."

xxx

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

Regulation of speech in the context of electoral campaigns made by non-

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

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

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

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

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

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

xxx

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

provide limits to some expression during electoral campaigns.

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

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

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

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

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

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

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

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

The act of the Comelec in restraining private individuals from posting

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

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

xxx

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

xxx

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

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

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

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

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

x x x Consistent with our ruling in Adiong, we find that the act of respondents in seeking
to restrain petitioners from posting the tarpaulin in their own private property is an impermissible

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encroachments on the right to property. (The Diocese of Bacolod v. Commission on Elections,
G.R. No. 205728, January 21, 2015)

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

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

The tarpaulin in question may be viewed as producing a caricature of those who are
running for public office. Their message may be construed generalizations of very complex
individuals and party-list organizations.

They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."

But this caricature, though not agreeable to some, is still protected speech.

xxx

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

of expression protected by our fundamental law. It is an expression designed to invite attention,
cause debate, and hopefully, persuade. x x x

What is involved in this case is the most sacred of speech forms: expression by the
electorate that tends to rouse the public to debate contemporary issues. This is not speech by
candidates or political parties to entice votes. It is a portion of the electorate telling candidates the
conditions for their election. It is the substantive content of the right to suffrage.

This is a form of speech x x x is protected as a fundamental and primordial right by our

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

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

invalid

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

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

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

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

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

xxx

70 | P a g e
 Section 9 (a) of COMELEC Resolution No. 9615 comes up with what is challenged as being
an unreasonable basis for determining the allowable air time that candidates and political parties
may avail of. Petitioner GMA came up with its analysis of the practical effects of such a regulation:

5.8. Given the reduction of a candidate's airtime minutes in the New Rules,
petitioner GMA estimates that a national candidate will only have 120 minutes to utilize for
his political advertisements in television during the whole campaign period of 88 days, or
will only have 81.81 seconds per day TV exposure allotment. If he chooses to place his
political advertisements in the 3 major TV networks in equal allocation, he will only have
27.27 seconds of airtime per network per day. This barely translates to 1 advertisement spot
on a 30-second spot basis in television.

5.9. With a 20-hour programming per day and considering the limits of a station's
coverage, it will be difficult for 1 advertising spot to make a sensible and feasible
communication to the public, or in political propaganda, to "make known [a candidate's]
qualifications and stand on public issues".

xxx

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

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

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

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

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

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

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

Why the Comelec prohibition on posting of an election campaign material

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

71 | P a g e
 The Comelec prohibition on posting of an election campaign material during an
election period in Public Utility Vehicles (PUVs) and transport terminals --constitutes
a prior restraint on the right to free expression. Prior restraints are presumed invalid.

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

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

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

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

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

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

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

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

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

April 14, 2015)

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

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

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

The Court does not agree.

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

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

It is conceded that Resolution No. 9615, including the herein assailed provisions, furthers
an important and substantial governmental interest, i.e., ensuring equal opportunity, time and
space among candidates aimed at the holding of free, orderly, honest, peaceful, and credible
elections. It is further conceded that the governmental interest in imposing the said prohibition
is unrelated to the suppression of free expression. However, Section 7(g) items (5) and (6), in
relation to Section 7(f), of Resolution No. 9615, are not within the constitutionally delegated
power of the COMELEC under Section 4, Article IX-C of the Constitution. Also, there is absolutely
no necessity to restrict the right to free speech of the owners of PUVs and transport terminals. (1-
United Transport Koalisyon v. Commission on Elections, G.R. No. 206020, April 14, 2015)

Prohibiting owners of PUVs and transport terminals from posting election

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

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

The COMELEC’s claim is untenable.

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

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

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

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

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

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

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

Election surveys may influence voter preferences. When left unregulated,

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

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

xxx

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

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

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

xxx

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

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

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

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

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

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

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

COMELEC correctly points out that in Section 5.2(a) of the Fair Election Act, those who
"commissioned" and those who "paid for" the published survey are separated by the disjunctive
term "or." x x x
74 | P a g e
 The second class makes no distinction between those who pay for a specific survey and
those who pay for election surveys in general. Indeed, subscribers do not escape the burden
ofpaying for the component articles comprising a subscription. x x x

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

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

Compelling governmental interest would include constitutionally declared principles. xxx

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

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

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

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

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

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

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

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

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

The Comelec rule on mandatory right to reply is valid: The Constitution itself
mandates the right to reply. Moreover, radio and TV broadcasting companies do not
own the airwaves but are merely given the temporary privilege of using them. The

75 | P a g e
exercise of the privilege may reasonably be burdened with the performance by the
grantee of some form of public service.

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

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

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

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

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

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

RELIGIOUS FREEDOM

Under the Establishment Clause, the State is prohibited from sponsoring any
religion or favoring any religion as against other religions.

[T]he constitutional assurance of religious freedom provides two guarantees: the

Establishment Clause and the Free Exercise Clause.

The establishment clause "principally prohibits the State from sponsoring any religion or
favoring any religion as against other religions. It mandates a strict neutrality in affairs among
religious groups." Essentially, it prohibits the establishment of a state religion and the use of
public resources for the support or prohibition of a religion. (Imbong v. Ochoa, G.R. No. 204819,
8 April 2014)

Non-Establishment Clause: The constitutional mandate that "no law shall be

made respecting an establishment of religion," is known as the non-establishment
clause. It simply means that the State cannot set up a Church; nor pass laws which
aid one religion, aid all religion, or prefer one religion over another nor force nor
influence a person to go to or remain away from church against his will or force him
to profess a belief or disbelief in any religion. What non-establishment calls for is
government neutrality in religious matters.

On the opposite side of the spectrum is the constitutional mandate that "no law shall be
made respecting an establishment of religion," otherwise known as the non-establishment clause.
xxx

The non-establishment clause reinforces the wall of separation between Church and State.
It simply means that the State cannot set up a Church; nor pass laws which aid one religion, aid
all religion, or prefer one religion over another nor force nor influence a person to go to or remain
away from church against his will or force him to profess a belief or disbelief in any religion; that
the state cannot punish a person for entertaining or professing religious beliefs or disbeliefs, for
church attendance or nonattendance; that no tax in any amount, large or small, can be levied to
support any religious activity or institution whatever they may be called or whatever form they
may adopt or teach or practice religion; that the state cannot openly or secretly participate in the
affairs of any religious organization or group and vice versa. Its minimal sense is that the state
cannot establish or sponsor an official religion.

In the same breath that the establishment clause restricts what the government can do
with religion, it also limits what religious sects can or cannot do. They can neither cause the
government to adopt their particular doctrines as policy for everyone, nor can they cause the
76 | P a g e
government to restrict other groups. To do so, in simple terms, would cause the State to adhere to
a particular religion and, thus, establish a state religion.

Father Bernas further elaborated on this matter, as follows:

"In effect, what non-establishment calls for is government neutrality in

religious matters. Such government neutrality may be summarized in four general
propositions: (1) Government must not prefer one religion over another or religion
over irreligion because such preference would violate voluntarism and breed
dissension; (2) Government funds must not be applied to religious purposes
because this too would violate voluntarism and breed interfaith dissension; (3)
Government action must not aid religion because this too can violate voluntarism
and breed interfaith dissension; [and] (4) Government action must not result in
excessive entanglement with religion because this too can violate voluntarism and
breed interfaith dissension."

(In re: Holding of Religious Rituals at the Hall of Justice Building in Quezon City, A.M.
No. 10-4-19-SC, March 7, 2017)

The Non-Establishment Clause calls for government neutrality in religious

matters. It is a grave violation of the non-establishment clause for the COMELEC to
utilize the Bible and the Koran to justify the exclusion of a party from registration.
The government must act for secular purposes.

Ang Ladlad is an organization composed of men and women who identify themselves as
lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang
Ladlad first applied for registration with the COMELEC in 2006. The application for accreditation
was denied x x x. On August 17, 2009, Ang Ladlad again filed a Petition for registration with the
COMELEC.

xxx

On November 11, 2009, after admitting the petitioner’s evidence, the COMELEC (Second
Division) dismissed the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds.

xxx

x x x [P]etitioner tolerates immorality which offends religious beliefs.

xxx

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 [party].

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. (Ang Ladlad LGBT Party v. Commission
on Elections, G.R. No. 190582, April 8, 2010)

The free exercise clause prohibits government from inhibiting religious beliefs
with penalties for religious beliefs and practice, while the establishment clause
prohibits government from inhibiting religious belief with rewards for religious beliefs
and practices.

The establishment clause "principally prohibits the State from sponsoring any religion or
favoring any religion as against other religions. It mandates a strict neutrality in affairs among
religious groups." Essentially, it prohibits the establishment of a state religion and the use of
public resources for the support or prohibition of a religion.

On the other hand, the basis of the free exercise clause is the respect for the inviolability
of the human conscience. Under this part of religious freedom guarantee, the State is prohibited
77 | P a g e
from unduly interfering with the outside manifestations of one's belief and faith. Explaining the
concept of religious freedom, the Court, in Victoriano v. Elizalde Rope Workers Union wrote:

The constitutional provisions not only prohibits legislation for the support of any
religious tenets or the modes of worship of any sect, thus forestalling compulsion by law of
the acceptance of any creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78,
88 L. ed. 1148, 1153), but also assures the free exercise of one's chosen form of
religion within limits of utmost amplitude. It has been said that the religion clauses
of the Constitution are all designed to protect the broadest possible liberty of conscience, to
allow each man to believe as his conscience directs, to profess his beliefs, and to live as he
believes he ought to live, consistent with the liberty of others and with the common good.
Any legislation whose effect or purpose is to impede the observance of one or
all religions, or to discriminate invidiously between the religions, is invalid,
even though the burden may be characterized as being only indirect. (Sherbert v.
Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by
enacting, within its power, a general law which has for its purpose and effect to advance the
state's secular goals, the statute is valid despite its indirect burden on religious observance,
unless the state can accomplish its purpose without imposing such burden. (Braunfeld v.
Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420,
444-5 and 449).

As expounded in Escritor,

The establishment and free exercise clauses were not designed to serve contradictory
purposes. They have a single goal-to promote freedom of individual religious beliefs and practices.
In simplest terms, the free exercise clause prohibits government from inhibiting religious beliefs
with penalties for religious beliefs and practice, while the establishment clause prohibits
government from inhibiting religious belief with rewards for religious beliefs and practices. In
other words, the two religion clauses were intended to deny government the power to use either
the carrot or the stick to influence individual religious beliefs and practices. (Imbong v. Ochoa,
G.R. No. 204819, 8 April 2014)

The Free Exercise Clause of the Constitution protects the freedom to believe
and the freedom to act on one’s beliefs. The individual is free to believe (or disbelieve)
as he pleases concerning the hereafter. But where the individual externalizes his
beliefs in acts or omissions that affect the public, his freedom to do so becomes
subject to the authority of the State.

[T]he right to believe or not to believe has again been enshrined in Section 5, Article III of
the 1987 Constitution:
Section 5. xxx. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. xxx.

Free Exercise Clause

Freedom of religion was accorded preferred status by the framers of our fundamental law.
xxx

"The right to religious profession and worship has a two-fold aspect - freedom to believe
and freedom to act on one's beliefs. The first is absolute as long as the belief is confined within the
realm of thought. The second is subject to regulation where the belief is translated into external
acts that affect the public welfare." Justice Isagani A. Cruz explained these two (2) concepts in this
wise:
(1) Freedom to Believe

The individual is free to believe (or disbelieve) as he pleases concerning the

hereafter. xxxx

(2) Freedom to Act on One's Beliefs

But where the individual externalizes his beliefs in acts or omissions that affect the
public, his freedom to do so becomes subject to the authority of the State. As great as this
liberty may be, religious freedom, like all other rights guaranteed in the Constitution, can
be enjoyed only with a proper regard for the rights of others.

It is error to think that the mere invocation of religious freedom will stalemate the
State and render it impotent in protecting the general welfare. The inherent police power
can be exercised to prevent religious practices inimical to society. And this is true even if

78 | P a g e
 such practices are pursued out of sincere religious conviction and not merely for the
purpose of evading the reasonable requirements or prohibitions of the law.

(In re: Holding of Religious Rituals at the Hall of Justice Building in Quezon City, A.M.
No. 10-4-19-SC, March 7, 2017)

The guarantee of religious freedom is comprised of two parts: the freedom to

believe and the freedom to act on one's belief; the first part is absolute; the second
part is limited and subject to regulation where the external acts affect the public
welfare. In case of conflict, the court adheres to the doctrine of benevolent neutrality.

Corollary to the guarantee of free exercise of one's religion is the principle that the
guarantee of religious freedom is comprised of two parts: the freedom to believe, and the freedom
to act on one's belief. The first part is absolute. As explained in Gerona v. Secretary of Education:

The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought. So is the freedom of belief, including religious belief, limitless and
without bounds. One may believe in most anything, however strange, bizarre and
unreasonable the same may appear to others, even heretical when weighed in the scales of
orthodoxy or doctrinal standards. x x x

The second part however, is limited and subject to the awesome power of the State
and can be enjoyed only with proper regard to the rights of others. It is "subject to regulation
where the belief is translated into external acts that affect the public welfare."

Thus, in case of conflict between the free exercise clause and the State, the Court adheres
to the doctrine of benevolent neutrality. This has been clearly decided by the Court in Estrada v.
Escritor, (Escritor) where it was stated "that benevolent neutrality-accommodation, whether
mandatory or permissive, is the spirit, intent and framework underlying the Philippine
Constitution." (Imbong v. Ochoa, G.R. No. 204819, 8 April 2014)

Meaning of benevolent neutrality: Government accommodation of religion may

be allowed, not to promote the government's favored form of religion, but to allow
individuals and groups to exercise their religion without hindrance. The purpose of
accommodation is to remove a burden on, or facilitate the exercise of, a person's or
institution's religion.

The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government's favored form of
religion, but to allow individuals and groups to exercise their religion without hindrance. "The
purpose of accommodation is to remove a burden on, or facilitate the exercise of, a person's or
institution's religion." "What is sought under the theory of accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an exemption from its application or its
'burdensome effect,' whether by the legislature or the courts. (Imbong v. Ochoa, G.R. No. 204819,
8 April 2014)

Pursuant to the Doctrine of Benevolent Neutrality, the conscientious objector's

claim to religious freedom would warrant an exemption from obligations under the
RH Law, unless the government succeeds in demonstrating a more compelling state
interest in the accomplishment of an important secular objective. To compel a
conscientious objector to act contrary to his religious belief and conviction would be
violate "the principle of non-coercion" enshrined in the right to free exercise of
religion.

While the RH Law, in espousing state policy to promote reproductive health manifestly
respects diverse religious beliefs in line with the Non-Establishment Clause, the same conclusion
cannot be reached with respect to Sections 7, 23 and 24 thereof. The said provisions commonly
mandate that a hospital or a medical practitioner to immediately refer a person seeking health
care and services under the law to another accessible healthcare provider despite their
conscientious objections based on religious or ethical beliefs.

In a situation where the free exercise of religion is allegedly burdened by government

legislation or practice, the compelling state interest test in line with the Court's espousal of the
Doctrine of Benevolent Neutrality in Escritor, finds application. In this case, the conscientious
objector's claim to religious freedom would warrant an exemption from obligations under the RH
79 | P a g e
Law, unless the government succeeds in demonstrating a more compelling state interest in the
accomplishment of an important secular objective. Necessarily so, the plea of conscientious
objectors for exemption from the RH Law deserves no less than strict scrutiny.

In applying the test, the first inquiry is whether a conscientious objector's right to religious
freedom has been burdened. x x x

The Court is of the view that the obligation to refer imposed by the RH Law violates the
religious belief and conviction of a conscientious objector. Once the medical practitioner, against
his will, refers a patient seeking information on modem reproductive health products, services,
procedures and methods, his conscience is immediately burdened as he has been compelled to
perform an act against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas)
has written, "at the basis of the free exercise clause is the respect for the inviolability of the human
conscience.”

xxx

Moreover, the guarantee of religious freedom is necessarily intertwined with the right to
free speech, it being an externalization of one's thought and conscience. This in turn includes the
right to be silent. With the constitutional guarantee of religious freedom follows the protection
that should be afforded to individuals in communicating their beliefs to others as well as the
protection for simply being silent. The Bill of Rights guarantees the liberty of the individual to
utter what is in his mind and the liberty not to utter what is not in his mind. While the RH Law
seeks to provide freedom of choice through informed consent, freedom of choice guarantees the
liberty of the religious conscience and prohibits any degree of compulsion or burden, whether
direct or indirect, in the practice of one's religion.

In case of conflict between the religious beliefs and moral convictions of individuals, on
one hand, and the interest of the State, on the other, to provide access and information on
reproductive health products, services, procedures and methods to enable the people to determine
the timing, number and spacing of the birth of their children, the Court is of the strong view that
the religious freedom of health providers, whether public or private, should be accorded primacy.
Accordingly, a conscientious objector should be exempt from compliance with the mandates of
the RH Law. If he would be compelled to act contrary to his religious belief and conviction, it
would be violative of "the principle of non-coercion" enshrined in the constitutional right to free
exercise of religion.

xxx

The same holds true with respect to non-maternity specialty hospitals and hospitals owned
and operated by a religious group and health care service providers. Considering that Section 24
of the RH Law penalizes such institutions should they fail or refuse to comply with their duty to
refer under Section 7 and Section 23(a)(3), the Court deems that it must be struck down for being
violative of the freedom of religion. The same applies to Section 23(a)(l) and (a)(2) in relation to
Section 24, considering that in the dissemination of information regarding programs and services
and in the performance of reproductive health procedures, the religious freedom of health care
service providers should be respected.

x x x The punishment of a healthcare service provider, who fails and/or refuses to refer a
patient to another, or who declines to perform reproductive health procedure on a patient because
incompatible religious beliefs, is a clear inhibition of a constitutional guarantee which the Court
cannot allow. (Imbong v. Ochoa, G.R. No. 204819, 8 April 2014)

Exception: Life threatening cases: The government may compel healthcare

providers to give reproductive health care, because the right to life of the mother
should be given preference. If it is necessary to save the life of a mother, procedures
endangering the life of the child may be resorted to even if is against the religious
sentiments of the medical practitioner.

All this notwithstanding, the Court properly recognizes a valid exception set forth in the
law. While generally healthcare service providers cannot be forced to render reproductive health
care procedures if doing it would contravene their religious beliefs, an exception must be made in
life-threatening cases that require the performance of emergency procedures. In these situations,
the right to life of the mother should be given preference, considering that a referral by a medical
practitioner would amount to a denial of service, resulting to unnecessarily placing the life of a
mother in grave danger. x x x

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 In a conflict situation between the life of the mother and the life of a child, the doctor is
morally obliged always to try to save both lives. If, however, it is impossible, the resulting death
to one should not be deliberate.

xxx

Accordingly, if it is necessary to save the life of a mother, procedures endangering the life
of the child may be resorted to even if is against the religious sentiments of the medical
practitioner. As quoted above, whatever burden imposed upon a medical practitioner in this case
would have been more than justified considering the life he would be able to save. (Imbong v.
Ochoa, G.R. No. 204819, 8 April 2014)

Mandatory family planning seminars: No violation of religious freedom because

attendees are not compelled to accept the information given to them.

Anent the requirement imposed under Section 152 as a condition for the issuance of a
marriage license, the Court finds the same to be a reasonable exercise of police power by the
government. A cursory reading of the assailed provision bares that the religious freedom of the
petitioners is not at all violated. All the law requires is for would-be spouses to attend a seminar
on parenthood, family planning breastfeeding and infant nutrition. It does not even mandate the
type of family planning methods to be included in the seminar, whether they be natural or
artificial. As correctly noted by the OSG, those who receive any information during their
attendance in the required seminars are not compelled to accept the information given to them,
are completely free to reject the information they find unacceptable, and retain the freedom to
decide on matters of family life without the intervention of the State. (Imbong v. Ochoa, G.R. No.
204819, 8 April 2014)

Why the holding of religious rituals such as Catholic masses at the basement
of any hall of justice may be allowed

Allowing the practice does not violate the principle of separation of Church and
State. The State recognizes the inherent right of the people to freely exercise their
religion. Our very own Constitution recognizes the religiosity of our people. Allowing
religion to flourish is not contrary to the principle of separation of Church and State.

The Court agrees with the findings and recommendation of the OCA and denies the prayer
of Valenciano that the holding of religious rituals of any of the world's religions in the QC Hall of
Justice or any halls of justice all over the country be prohibited.

The Holding of Religious Rituals in the Halls of Justice does not Amount to a Union of
Church and State

xxx Valenciano is against the holding of religious rituals in the halls of justice on the
ground that it violates the constitutional provision on the separation of Church and State and the
constitutional prohibition against the appropriation of public money or property for the benefit
of a sect, church, denomination, or any other system of religion. Indeed, Section 6, Article II of
the 1987 Constitution provides:

The separation of Church and State shall be inviolable.

The Court once pronounced that "our history, not to speak of the history of mankind, has
taught us that the union of church and state is prejudicial to both, for occasions might arise when
the state will use the church, and the church the state, as a weapon in the furtherance of their
respective ends and aims."

xxx

This, notwithstanding, the State still recognizes the inherent right of the people to have
some form of belief system, whether such may be belief in a Supreme Being, a certain way of life,
or even an outright rejection of religion. Our very own Constitution recognizes the heterogeneity
and religiosity of our people as reflected in lmbong v. Ochoa, as follows:

xxx The undisputed fact is that our people generally believe in a deity, whatever they
conceived Him to be, and to Whom they called for guidance and enlightenment in crafting our
fundamental law. xxx Thus, the preamble of the present Constitution reads:

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a
just and humane society, xxx
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 The Filipino people in "imploring the aid of Almighty God" manifested their spirituality
innate in our nature and consciousness as a people, shaped by tradition and historical experience.
As this is embodied in the preamble, it means that the State recognizes with respect the influence
of religion in so far as it instills into the mind the purest principles of morality. Moreover, in
recognition of the contributions of religion to society, the 1935, 1973 and 1987 Constitutions
contain benevolent and accommodating provisions towards religions such as tax exemption of
church property, salary of religious officers in government institutions, and optional religious
instructions in public schools. [Emphases supplied]

In Aglipay v. Ruiz (Aglipay), the Court acknowledged how religion could serve as a
motivating force behind each person's actions:

xxx

Thus, the right to believe or not to believe has again been enshrined in Section 5, Article
III of the 1987 Constitution:

Section 5. xxx. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. xxx.

xxxx

Allowing religion to flourish is not contrary to the principle of separation of Church and
State. In fact, these two principles are in perfect harmony with each other.

The State is aware of the existence of religious movements whose members believe in the
divinity of Jose Rizal. Yet, it does not implement measures to suppress the said religious sects.
xxx

As pointed out by Judge Lutero, "the Roman Catholics express their worship through the
holy mass and to stop these would be tantamount to repressing the right to the free exercise of
their religion. Our Muslim brethren, who are government employees, are allowed to worship their
Allah even during office hours inside their own offices. The Seventh Day Adventists are exempted
from rendering Saturday duty because their religion prohibits them from working on a Saturday.
Even Christians have been allowed to conduct their own bible studies in their own offices. All
these have been allowed in respect of the workers' right to the free exercise of their religion. xxx"

Clearly, allowing the citizens to practice their religion is not equivalent to a fusion of
Church and State. (In re: Holding of Religious Rituals at the Hall of Justice Building in Quezon
City, A.M. No. 10-4-19-SC, March 7, 2017)

Although religious freedom is not absolute, a compelling interest of the state

can prevail over the fundamental right to religious liberty. To successfully invoke
compelling state interest, it must be demonstrated that the masses in the QC Hall of
Justice unduly disrupt the delivery of public services or affect the judges and
employees in the performance of their official functions. In this case, there is no state
interest compelling enough to prohibit the exercise of religious freedom in the halls
of justice.

Religious freedom, however, is not absolute. It cannot have its way if there is a compelling
state interest. To successfully invoke compelling state interest, it must be demonstrated that the
masses in the QC Hall of Justice unduly disrupt the delivery of public services or affect the judges
and employees in the performance of their official functions. In Estrada v. Escritor, the Court
expounded on the test as follows:

The "compelling state interest" test is proper where conduct is involved for
the whole gamut of human conduct has different effects on the state's interests:
some effects may be immediate and short-term while others delayed and far-
reaching. A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore necessary. However,
not any interest of the state would suffice to prevail over the right to religious
freedom as this is a fundamental. right that enjoys a preferred position in the
hierarchy of rights - "the most inalienable and sacred of all human rights", in the
words of Jefferson. This right is sacred for an invocation of the Free Exercise
Clause is an appeal to a higher sovereignty. The entire constitutional order of
limited government is premised upon an acknowledgment of such higher
sovereignty, thus the Filipinos implore the "aid of Almighty God in order to build

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 a just and humane society and establish a government." As held in Sherbert, only
the gravest abuses, endangering paramount interests can limit this fundamental
right. A mere balancing of interests which balances a right with just a colorable
state interest is therefore not appropriate. Instead, only a compelling interest of
the state can prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to do otherwise
would allow the state to batter religion, especially the less powerful ones until they
are destroyed. xxxx The "compelling state interest" serves the purpose of revering
religious liberty while at the same time affording protection to the paramount
interests of the state. This was the test used in Sherbert which involved conduct,
i.e. refusal to work on Saturdays. In the end, the "compelling state interest" test,
by upholding the paramount interests of the state, seeks to protect the very state,
without which, religious liberty will not be preserved.xxx

As reported by the Executive Judges of Quezon City, the masses were being conducted
only during noon breaks and were not disruptive of public services. The court proceedings were
not being distracted or interrupted and that the performance of the judiciary employees were not
being adversely affected. Moreover, no Civil Service rules were being violated. As there has been
no detrimental effect on the public service or prejudice to the State, there is simply no state
interest compelling enough to prohibit the exercise of religious freedom in the halls of justice. (In
re: Holding of Religious Rituals at the Hall of Justice Building in Quezon City, A.M. No. 10-4-19-
SC, March 7, 2017)

Allowing the holding of Catholic masses at the basement of the QC Hall of

Justice is not a case of establishment, but merely accommodation. To give life to the
constitutional right of freedom of religion, the State adopts a policy of
accommodation. Benevolent neutrality allows accommodation of religion under
certain circumstances. Accommodations are government policies that take religion
specifically into account, not to promote the government's favored form of religion,
but to allow individuals to exercise their religion without hindrance. Their purpose or
effect therefore is to remove a burden on, or facilitate the exercise of, a person's or
institution's religion.

In order to give life to the constitutional right of freedom of religion, the State adopts a
policy of accommodation. Accommodation is a recognition of the reality that some governmental
measures may not be imposed on a certain portion of the population for the reason that these
measures are contrary to their religious beliefs. As long as it can be shown that the exercise of the
right does not impair the public welfare, the attempt of the State to regulate or prohibit such right
would be an unconstitutional encroachment.

In Estrada v. Escritor, the Court adopted a policy of benevolent neutrality:

With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically into
account not to promote the government's favored form of religion, but to allow
individuals and groups to exercise their religion without hindrance. Their purpose
or effect therefore is to remove a burden on, or facilitate the exercise of, a person's
or institution's religion. As Justice Brennan explained, the "government [may] take
religion into account ... to exempt, when possible, from generally applicable
governmental regulation individuals whose religious beliefs and practices would
otherwise thereby be infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise may flourish." [Emphases
supplied]

In Victoriano v. Elizalde Rope Workers Union, the Court upheld the exemption of
members of Iglesia ni Cristo from the coverage of a closed shop agreement between their
employer and a union, because it would violate the teaching of their church not to affiliate with a
labor organization.

In Ebralinag v. Division Superintendent of Schools of Cebu, the petitioners, who were

members of the Jehovah 's Witnesses, refused to salute the flag, sing the national anthem, and
recite the patriotic pledge for it is their belief that those were acts of worship or religious devotion,
which they could not conscientiously give to anyone or anything except God. The Court
accommodated them and granted them an exemption from observing the flag ceremony out of
respect for their religious beliefs.

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 Further, several laws have been enacted to accommodate religion. The Revised
Administrative Code of 1987 has declared Maundy Thursday, Good Friday, and Christmas Day as
regular holidays. Republic Act (R.A.) No. 9177 proclaimed the FIRST Day of Shawwal, the tenth
month of the Islamic Calendar, a national holiday for the observance of Eidul Fitr (the end of
Ramadan). R.A. No. 9849 declared the tenth day of Zhu/ Hijja, the twelfth month of the Islamic
Calendar, a national holiday for the observance of Eidul Adha. Presidential Decree (P.D.) No.
1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, expressly allows
a Filipino Muslim to have more than one (1) wife and exempts him from the crime of bigamy
punishable under Revised Penal Code (RPC). The same Code allows Muslims to have divorce.

As to Muslims in government offices, Section 3 of P.D. No. 291, as amended by P.D. No.
322, provides:

Sec. 3. (a) During the fasting season on the month of Ramadan, all Muslim
employees in the national government, government-owned or controlled
corporations, provinces, cities, municipalities and other instrumentalities shall
observe office hours from seven-thirty in the morning (7:30 a.m.) to three-thirty
in the afternoon (3:30 p.m.) without lunch break or coffee breaks, and that there
shall be no diminution of salary or wages, provided, that the employee who is not
fasting is not entitled to the benefit of this provision.

Pursuant thereto, the CSC promulgated Resolution No. 81-1277, dated November 13, 1981,
which reads in part:

2. During "Ramadan" the Fasting month (30 days) of the Muslims, the Civil Service official
time of 8 o'clock to 12 o'clock and 1 o'clock to 5 o'clock is hereby modified to 7:30 AM. to 3:30
P.M. without noon break and the difference of 2 hours is not counted as undertime.

Following the decree, in Re: Request of Muslim Employees in the Different Courts in
Iligan City (Re: Office Hours), the Court recognized that the observance of Ramadan as integral
to the Islamic faith and allowed Muslim employees in the Judiciary to hold flexible office hours
from 7:30 o'clock in the morning to 3:30 o'clock in the afternoon without any break during the
period. This is a clear case of accommodation because Section 5, Rule XVII of the Omnibus Rules
Implementing Book V of E.0. No. 292, enjoins all civil servants, of whatever religious
denomination, to render public service of no less than eight (8) hours a day or forty (40) hours a
week.

xxx

Establishment entails a positive action on the part of the State. Accommodation, on the
other hand, is passive. In the former, the State becomes involved through the use of government
resources with the primary intention of setting up a state religion. In the latter, the State, without
being entangled, merely gives consideration to its citizens who want to freely exercise their
religion.

In a September 12, 2003 Memorandum for Chief Justice Hilario G. Davide, Jr., the Office
of the Chief Attorney recommended to deny, on constitutional grounds, the request of Rev. Fr.
Carlo M. Ilagan to hold a oneday vigil in honor of the Our Lady of Caysasay within the premises
of the Court. Such controversy must be distinguished from the present issue in that with respect
to the former, a Catholic priest was the one who requested for the vigil. Moreover, in that case,
the vigil would take one (1) whole working day; whereas in this case, the masses are held at the
initiative of Catholic employees and only during the thirty-minute lunch break. (In re: Holding of
Religious Rituals at the Hall of Justice Building in Quezon City, A.M. No. 10-4-19-SC, March 7,
2017)

Guided by the foregoing, it is our considered view that the holding of Catholic masses at
the basement of the QC Hall of Justice is not a case of establishment, but merely accommodation.
First, there is no law, ordinance or circular issued by any duly constitutive authorities expressly
mandating that judiciary employees attend the Catholic masses at the basement. Second, when
judiciary employees attend the masses to profess their faith, it is at their own initiative as they are
there on their own free will and volition, without any coercion from the judges or administrative
officers. Third, no government funds are being spent because the lightings and airconditioning
continue to be operational even if there are no religious rituals there. Fourth, the basement has
neither been converted into a Roman Catholic chapel nor has it been permanently appropriated
for the exclusive use of its faithful. Fifth, the allowance of the masses has not prejudiced other
religions.

xxx

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 That the holding of masses at the basement of the QC Hall of Justice may offend non-
Catholics is no reason to proscribe it. Our Constitution ensures and mandates an unconditional
tolerance, without regard to whether those who seek to profess their faith belong to the majority
or to the minority. It is emphatic in saying that "the free exercise and enjoyment of religious
profession and worship shall be without discrimination or preference." Otherwise,
accommodation or tolerance would just be mere lip service.

One cannot espouse that the constitutional freedom of religion ensures tolerance, but, in
reality, refuses to practice what he preaches. One cannot ask for tolerance when he refuses to do
the same for others.

In fine, the Court denies the plea that the holding of Catholic masses at the basement of
the QC Hall of Justice be prohibited because the said practice does not violate the constitutional
principle of separation of Church and State. (In re: Holding of Religious Rituals at the Hall of
Justice Building in Quezon City, A.M. No. 10-4-19-SC, March 7, 2017)

RIGHT TO PRIVACY

The right to privacy is the right to be let alone.

The right to privacy is enshrined in our Constitution and in our laws. It is defined as "the
right to be free from unwarranted exploitation of one’s person or from intrusion into one’s private
activities in such a way as to cause humiliation to a person’s ordinary sensibilities." It is the right
of an individual "to be free from unwarranted publicity, or to live without unwarranted
interference by the public in matters in which the public is not necessarily concerned." Simply
put, the right to privacy is "the right to be let alone." (Spouses Hing v. Choachuy, G.R. No. 179736,
June 26, 2013)

Right to privacy may extend to places where one has the right to exclude the
public or deny them access, such as a business office.

An individual’s right to privacy under Article 26(1) of the Civil Code should not be confined
to his house or residence as it may extend to places where he has the right to exclude the public
or deny them access. The phrase "prying into the privacy of another’s residence," therefore, covers
places, locations, or even situations which an individual considers as private. And as long as his
right is recognized by society, other individuals may not infringe on his right to privacy. (Spouses
Hing v. Choachuy, G.R. No. 179736, June 26, 2013)

The "reasonable expectation of privacy" test should be used to determine

whether there is a violation of the right to privacy. The reasonableness of a person’s
expectation of privacy depends on a two-part test: (1) whether, by his conduct, the
individual has exhibited an expectation of privacy; and (2) this expectation is one that
society recognizes as reasonable.

In ascertaining whether there is a violation of the right to privacy, courts use the
"reasonable expectation of privacy" test. This test determines whether a person has a reasonable
expectation of privacy and whether the expectation has been violated. In Ople v. Torres, we
enunciated that "the reasonableness of a person’s expectation of privacy depends on a two-part
test: (1) whether, by his conduct, the individual has exhibited an expectation of privacy; and (2)
this expectation is one that society recognizes as reasonable." Customs, community norms, and
practices may, therefore, limit or extend an individual’s "reasonable expectation of
privacy." Hence, the reasonableness of a person’s expectation of privacy must be determined on a
case-to-case basis since it depends on the factual circumstances surrounding the case. (Spouses
Hing v. Choachuy, G.R. No. 179736, June 26, 2013)

Surveillance cameras should not pry into or cover places where there is
reasonable expectation of privacy.

In this day and age, video surveillance cameras are installed practically everywhere for the
protection and safety of everyone. The installation of these cameras, however, should not cover
places where there is reasonable expectation of privacy, unless the consent of the individual,
85 | P a g e
whose right to privacy would be affected, was obtained. Nor should these cameras be used to pry
into the privacy of another’s residence or business office as it would be no different from
eavesdropping, which is a crime under Republic Act No. 4200 or the Anti-Wiretapping Law.

xxx

x x x [P]etitioners have a "reasonable expectation of privacy" in their property, whether

they use it as a business office or as a residence and that the installation of video surveillance
cameras directly facing petitioners’ property or covering a significant portion thereof, without
their consent, is a clear violation of their right to privacy. As we see then, the issuance of a
preliminary injunction was justified. (Spouses Hing v. Choachuy, G.R. No. 179736, June 26,
2013)

There are the three strands of the right to privacy, viz: (1) locational or
situational privacy; (2) informational privacy; and (3) decisional privacy. The right to
informational privacy––usually defined as the right of individuals to control
information about themselves.

The concept of privacy has, through time, greatly evolved, with technological
advancements having an influential part therein. This evolution was briefly recounted in former
Chief Justice Reynato S. Puno’s speech, The Common Right to Privacy, where he explained the
three strands of the right to privacy, viz: (1) locational or situational privacy; (2) informational
privacy; and (3) decisional privacy. Of the three, what is relevant to the case at bar is the right to
informational privacy––usually defined as the right of individuals to control information about
themselves.

With the availability of numerous avenues for information gathering and data sharing
nowadays, not to mention each system’s inherent vulnerability to attacks and intrusions, there is
more reason that every individual’s right to control said flow of information should be protected
and that each individual should have at least a reasonable expectation of privacy in cyberspace.
(Vivares v. St. Theresa’s College, G.R. No. 202666, September 29, 2014)

To have an expectation of privacy in Facebook posts, a user must show

intention to keep certain posts private through the use of privacy tools. A Facebook
user who opts to make use of a privacy tool to grant or deny access to his or her post
or profile detail should not be denied the informational privacy right which necessarily
accompanies said choice.

The question now though is up to what extent is the right to privacy protected in OSNs
[online social network] ? x x x

xxx

To address concerns about privacy, but without defeating its purpose, Facebook was
armed with different privacy tools designed to regulate the accessibility of a user’s profile as well
as information uploaded by the user. x x x

xxx

The foregoing are privacy tools, available to Facebook users, designed to set up barriers to
broaden or limit the visibility of his or her specific profile content, statuses, and photos, among
others, from another user’s point of view. x x x

x x x It is through the availability of said privacy tools that many OSN users are said to
have a subjective expectation that only those to whom they grant access to their profile will view
the information they post or upload thereto.

This, however, does not mean that any Facebook user automatically has a protected
expectation of privacy in all of his or her Facebook activities.

Before one can have an expectation of privacy in his or her OSN activity, it is first necessary
that said user, in this case the children of petitioners, manifest the intention to keep certain posts
private, through the employment of measures to prevent access thereto or to limit its visibility.
And this intention can materialize in cyberspace through the utilization of the OSN’s privacy tools.
In other words, utilization of these privacy tools is the manifestation, in cyber world, of the user’s
invocation of his or her right to informational privacy.

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 Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny access
to his or her post or profile detail should not be denied the informational privacy right which
necessarily accompanies said choice. x x x

xxx

It is well to note that not one of petitioners disputed Escudero’s sworn account that her
students, who are the minors’ Facebook "friends," showed her the photos using their own
Facebook accounts. This only goes to show that no special means to be able to view the allegedly
private posts were ever resorted to by Escudero’s students, and that it is reasonable to assume,
therefore, that the photos were, in reality, viewable either by (1) their Facebook friends, or (2) by
the public at large.

Considering that the default setting for Facebook posts is "Public," it can be surmised that
the photographs in question were viewable to everyone on Facebook, absent any proof that
petitioners’ children positively limited the disclosure of the photograph. If such were the case,
they cannot invoke the protection attached to the right to informational privacy. The ensuing
pronouncement in US v. Gines-Perez is most instructive:
[A] person who places a photograph on the Internet precisely intends to forsake and
renounce all privacy rights to such imagery, particularly under circumstances such as here,
where the Defendant did not employ protective measures or devices that would have
controlled access to the Web page or the photograph itself.

xxx

In sum, there can be no quibbling that the images in question, or to be more precise, the
photos of minor students scantily clad, are personal in nature, likely to affect, if indiscriminately
circulated, the reputation of the minors enrolled in a conservative institution. However, the
records are bereft of any evidence, other than bare assertions that they utilized Facebook’s privacy
settings to make the photos visible only to them or to a select few. Without proof that they placed
the photographs subject of this case within the ambit of their protected zone of privacy, they
cannot now insist that they have an expectation of privacy with respect to the photographs in
question. (Vivares v. St. Theresa’s College, G.R. No. 202666, September 29, 2014)

An ordinance requiring property owners to expose their property by limiting

the height of fences to one meter and requiring fences in excess of one meter to be
at least 80% see-thru is a violation of the right to privacy of the property owners.

The petitioners argue that x x x Section 3.1 [of Ordinance No. 192] limiting the height of
fences to one meter and requiring fences in excess of one meter to be at least 80% see-thru, should
remain valid and enforceable against the respondents.

xxx

It also appears that requiring the exposure of their property via a see-thru fence is violative
of their right to privacy, considering that the residence of the Benedictine nuns is also located
within the property. The right to privacy has long been considered a fundamental right guaranteed
by the Constitution that must be protected from intrusion or constraint. The right to privacy is
essentially the right to be let alone, as governmental powers should stop short of certain intrusions
into the personal life of its citizens. It is inherent in the concept of liberty, enshrined in the Bill of
Rights (Article III) in Sections 1, 2, 3(1), 6, 8, and 17, Article III of the 1987 Constitution.

The enforcement of Section 3.1 would, therefore, result in an undue interference with the
respondents’ rights to property and privacy. Section 3.1 of Ordinance No. 192 is, thus, also invalid
and cannot be enforced against the respondents. (Fernando v. St. Scholastica’s College, G.R. No.
161107, March 12, 2013)

RIGHT TO PEACEABLY ASSEMBLE

Freedom of assembly is not to be limited or denied, except on a showing of a

clear and present danger of a substantive evil that the state has a right to prevent. If
the mayor is to refuse or modify (the venue for example) of an application for a permit
to a rally, such refusal or modification must be based on the clear and present danger
test; also the mayor must immediately inform the applicant who should be heard first
87 | P a g e
on the perceived imminent and grave danger of a substantive evil that may warrant
the change of venue.

In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita, the Court

reiterated:

x x x Freedom of assembly connotes the right of the people to meet peaceably

for consultation and discussion of matters of public concern. It is entitled to be
accorded the utmost deference and respect. It is not to be limited, much less
denied, except on a showing, as is the case with freedom of expression,
of a clear and present danger of a substantive evil that the state has a
right to prevent. x x x The sole justification for a limitation on the
exercise of this right, so fundamental to the maintenance of democratic
institutions, is the danger, of a character both grave and imminent, of a
serious evil to public safety, public morals, public health, or any other
legitimate public interest. (emphasis supplied)

The Court in Bayan stated that the provisions of the Public Assembly Act of 1985
practically codified the 1983 ruling in Reyes v. Bagatsing. In juxtaposing Sections 4 to 6 of the
Public Assembly Act with the pertinent portion of the Reyes case, the Court elucidated as follows:

x x x [The public official concerned shall] appraise whether there may be

valid objections to the grant of the permit or to its grant but at another public
place. It is an indispensable condition to such refusal or modification that the clear
and present danger test be the standard for the decision reached. If he is of the view
that there is such an imminent and grave danger of a substantive evil, the applicants
must be heard on the matter. Thereafter, his decision, whether favorable or adverse,
must be transmitted to them at the earliest opportunity. Thus if so minded, they can
have recourse to the proper judicial authority. (italics and underscoring supplied)

In modifying the permit outright, respondent 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. The
opportunity to be heard precedes the action on the permit, since the applicant may directly go to
court after an unfavorable action on the permit.

Respondent 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, it bears repeating, 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. (Integrated Bar of the Philippines v. Atienza, G.R. No. 175241, February 24, 2010)

RIGHT TO LIBERTY:

THE WRIT OF HABEAS CORPUS

The waiver by the detainee or arrested person of his right to be delivered to

the proper judicial authorities within the periods provided in Article 125 of the RPC
does not vest upon the DOJ, PPO, BJMP, and PNP the unbridled right to indefinitely
incarcerate him. The waiver of Article 125 must coincide with the prescribed period
for preliminary investigation. Detention beyond this period violates the accused's
constitutional right to liberty. Stated differently, the waiver of the effects of Article
125 of the RPC is not a license to detain a person ad infinitum and does not trump
his constitutional right in cases where probable cause was initially found wanting by
reason of the dismissal of the complaint filed before the prosecutor's office even if
such dismissal is on appeal, reconsideration, reinvestigation or on automatic review.

This is a petition for the issuance of writ of habeas corpus with a petition for declaratory
relief filed by the Integrated Bar of the Philippines (IBP) Pangasinan Chapter Legal Aid, xxx.

The petition claims that as a result of jail visitations participated in by the IBP Legal Aid
Program, as well as a series of consultations with the Philippine National Police (PNP) on the
extant condition of detention prisoners, it was discovered that several detention prisoners had

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been languishing in jail for years without a case being filed in court by the prosecutor's office and
without definite findings as to the existence or nonexistence of probable cause.

xxxx

The rule is that a person subject of a warrantless arrest must be delivered to the proper
judicial authorities within the periods provided in Article 125 of the RPC, otherwise, the public
official or employee could be held liable for the failure to deliver except if grounded on reasonable
and allowable delays. Article 125 of the RPC is intended to prevent any abuse resulting from
confining a person without informing him of his offense and without allowing him to post bail. It
punishes public officials or employees who shall detain any person for some legal ground but fail
to deliver such person to the proper judicial authorities within the periods prescribed by law. In
case the detention is without legal ground, the person arrested can charge the arresting officer
with arbitrary detention under Article 124 of the RPC. This is without prejudice to the possible
filing of an action for damages under Article 32 of the New Civil Code of the Philippines.

Article 125 of the RPC, however, can be waived if the detainee who was validly arrested
without a warrant opts for the conduct of preliminary investigation. The question to be addressed
here, therefore, is whether such waiver gives the State the right to detain a person indefinitely.

The Court answers in the negative.

The waiver of Article 125 of the RPC does not vest upon the DOJ, PPO, BJMP, and PNP
the unbridled right to indefinitely incarcerate an arrested person and subject him to the whims
and caprices of the reviewing prosecutor of the DOJ. The waiver of Article 125 must coincide with
the prescribed period for preliminary investigation as mandated by Section 7, Rule 112 of the
Rules of Court. Detention beyond this period violates the accused's constitutional right to liberty.

Stated differently, the waiver of the effects of Article 125 of the RPC is not a license to
detain a person ad infinitum. Waiver of a detainee's right to be delivered to proper judicial
authorities as prescribed by Article 125 of the RPC does not trump his constitutional right in cases
where probable cause was initially found wanting by reason of the dismissal of the complaint
filed before the prosecutor's office even if such dismissal is on appeal, reconsideration,
reinvestigation or on automatic review. Every person's basic right to liberty is not to be construed
as waived by mere operation of Section 7, Rule 112 of the Rules of Court. The fundamental law
provides limits and this must be all the more followed especially so that detention is proscribed
absent probable cause.

Accordingly, the Court rules that a detainee under such circumstances must be promptly
released to avoid violation of the constitutional right to liberty, despite a waiver of Article 125, if
the 15-day period (or the thirty 30- day period in cases of violation of R.A. No. 91659) for the
conduct of the preliminary investigation lapses. This rule also applies in cases where the
investigating prosecutor resolves to dismiss the case, even if such dismissal was appealed to the
DOJ or made the subject of a motion for reconsideration, reinvestigation or automatic review.
The reason is that such dismissal automatically results in a prima facie finding of lack of probable
cause to file an information in court and to detain a person.

The Court is aware that this decision may raise discomfort to some, especially at this time
when the present administration aggressively wages its "indisputably popular war on illegal
drugs." As Justice Diosdado Peralta puts it, that the security of the public and the interest of the
State would be jeopardized is not a justification to trample upon the constitutional rights of the
detainees against deprivation of liberty without due process of law, to be presumed innocent until
the contrary is proved and to a speedy disposition of the case.

WHEREFORE, it is hereby declared, and ruled, that all detainees whose pending cases
have gone beyond the mandated periods for the conduct of preliminary investigation, or whose
cases have already been dismissed on inquest or preliminary investigation, despite pending
appeal, reconsideration, reinvestigation or automatic review by the Secretary of Justice, are
entitled to be released pursuant to their constitutional right to liberty and their constitutional
right against unreasonable seizures, unless detained for some other lawful cause. (Integrated
Bar of the Philippines v. Department of Justice, G.R. No. 232413, July 25, 2017)

A person is illegally arrested and detained because of a mistaken identity can

avail himself of a Petition for Habeas Corpus.

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 Petitioner Salibo was not arrested by virtue of any warrant charging him of an offense. He
was not restrained under a lawful process or an order of a court. He was illegally deprived of his
liberty, and, therefore, correctly availed himself of a Petition for Habeas Corpus.

The Information and Alias Warrant of Arrest issued by the Regional Trial Court, Branch
221, Quezon City in People of the Philippines v. Datu Andal Ampatuan, Jr., et al. charged and
accused Butukan S. Malang, not Datukan Malang Salibo, of 57 counts of murder in connection
with the Maguindanao Massacre.

Furthermore, petitioner Salibo was not validly arrested without a warrant. x x x

It is undisputed that petitioner Salibo presented himself before the Datu Hofer Police
Station to clear his name and to prove that he is not the accused Butukan S. Malang. When
petitioner Salibo was in the presence of the police officers of Datu Hofer Police Station, he was
neither committing nor attempting to commit an offense. The police officers had no personal
knowledge of any offense that he might have committed. Petitioner Salibo was also not an escapee
prisoner.

The police officers, therefore, had no probable cause to arrest petitioner Salibo without a
warrant. They deprived him of his right to liberty without due process of law, for which a petition
for habeas corpus may be issued.

xxx

A motion for reinvestigation will not cure the defect of lack of preliminary investigation.
The Information and Alias Warrant of Arrest were issued on the premise that Butukan S. Malang
and Datukan Malang Salibo are the same person. There is evidence, however, that the person
detained by virtue of these processes is not Butukan S. Malang but another person named
Datukan Malang Salibo. (In the Matter of Petition for Habeas Corpus of Datukan Malang Salibo,
v. Warden, Quezon City Jail, G.R. No. 197597, April 8, 2015)

PROTECTING THE RIGHT TO LIFE, LIBERTY & SECURITY:

THE WRIT OF AMPARO

Nature of the Writ of Amparo: The protective writ of amparo is a judicial

remedy to expeditiously provide relief to violations of a person's constitutional right
to life, liberty, and security, and more specifically, to address the problem of
extralegal killings and enforced disappearances or threats thereof.

The protective writ of amparo is a judicial remedy to expeditiously provide relief to

violations of a person's constitutional right to life, liberty, and security, and more specifically, to
address the problem of extralegal killings and enforced disappearances or threats thereof. Section
1 of A.M. No. 07-9-12-SC provides:

Sec. 1. Petition. - The petition for a writ of amparo is a remedy available to

any person whose right to life, liberty and security is violated or threatened with
violation by an unlawful act or omission of a public official or employee, or of a
private individual or entity.

The writ shall cover extralegal killings and enforced

disappearances or threats thereof. (Emphasis supplied)

(Callo v. Commissioner Morente, G.R. No. 230324, September 19, 2017)

Meaning of enforced disappearance: The arrest, detention, or abduction of

persons by, or with the authorization, support or acquiescence of a State or a political
organization followed by a refusal to acknowledge that deprivation of freedom or to
give information on the fate or whereabouts of those persons, with the intention of
removing from the protection of the law for a prolonged period of time.

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 It is clear from the above-quoted provision that the writ of amparo covers extralegal
killings and enforced disappearances or threats thereof. Enforced disappearance is defined under
Republic Act (RA) No. 9851, Section 3(g) of which provides:

(g) "Enforced or involuntary disappearance of persons" means the arrest, detention, or

abduction of persons by, or with the authorization, support or acquiescence of a State or a political
organization followed by a refusal to acknowledge that deprivation of freedom or to give
information on the fate or whereabouts of those persons, with the intention of removing from the
protection of the law for a prolonged period of time. (Callo v. Commissioner Morente, G.R. No.
230324, September 19, 2017)

Meaning of extralegal killings: Killings committed without due process of law,

i.e., without legal safeguards or judicial proceedings.

This Court also had the opportunity to define extralegal killings and enforced
disappearance:

Extralegal killings are killings committed without due process of law, i.e., without legal
safeguards or judicial proceedings. On the other hand, enforced disappearance has been defined
by the Court as the arrest, detention, abduction or any other form of deprivation of liberty by
agents of the State or by persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person, which place such a person
outside the protection of the law. (Callo v. Commissioner Morente, G.R. No. 230324, September
19, 2017)

Elements of Enforced Disappearance: (a) that there be an arrest, detention,

abduction or any form of deprivation of liberty; (b) that it be carried out by, or with
the authorization, support or acquiescence of, the State or a political organization;
(c) that it be followed by the State or political organization's refusal to acknowledge
or give information on the fate or whereabouts of the person subject of the amparo
petition; and, (d) that the intention for such refusal is to remove subject person from
the protection of the law for a prolonged period of time.

In Navia v. Pardico, this Court clarified that with the enactment of RANo. 9851, the Rule
on the Writ of Amparo is now a procedural law anchored, not only on the constitutional right to
life, liberty, and security, but also on a concrete statutory definition of "enforced or involuntary
disappearance." Further, elements constituting enforced disappearance as defined under RA No.
9851 were clearly laid down by this Court, viz:

(a) that there be an arrest, detention, abduction or any form of deprivation of liberty; ·

(b) that it be carried out by, or with the authorization, support or acquiescence of, the State
or a political organization;

(c) that it be followed by the State or political organization's refusal to acknowledge or give
information on the fate or whereabouts of the person subject of the amparo petition; and,

(d) that the intention for such refusal is to remove subject person from the protection of
the law for a prolonged period oftime.

It is clear that the elements of enforced disappearance are not attendant in this case. There
is also no threat of such enforced disappearance.While there is indeed a detention carried out by
the State through the Bureau of Immigration, the third and fourth elements are not present. There
is no refusal to acknowledge the deprivation of freedom or refusal to give information on the
whereabouts of Parker because as Callo admits, Parker is detained in the Immigration Detention
Facility of the Bureau of Immigration. The Bureau of Immigration also does not deny this. In fact,
the Bureau of Immigration had produced the body of Parker before the RTC in the proceedings
for the writ of habeas corpus previously initiated by Parker herself. 9 Similarly, there is no
intention to remove Parker from the protection of the law for a prolonged period of time. As the
Bureau of Immigration explained, Parker has a pending criminal case against her in Davao City,
which prevents the Bureau of Immigration from deporting her from the country. (Callo v.
Commissioner Morente, G.R. No. 230324, September 19, 2017)

Writ of amparo proceedings do not determine criminal, civil or administrative

liability. The principal objective of its proceedings is the initial determination of

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whether an enforced disappearance, extralegal killing or threats thereof had
transpired.

The writ of amparo is a protective remedy aimed at providing judicial relief consisting of
the appropriate remedial measures and directives that may be crafted by the court, in order to
address specific violations or threats of violation of the constitutional rights to life, liberty or
security. While the principal objective of its proceedings is the initial determination
of whether an enforced disappearance, extralegal killing or threats thereof had
transpired the writ does not, by so doing, fix liability for such disappearance, killing
or threats, whether that may be criminal, civil or administrative under the
applicable substantive law. The rationale underpinning this peculiar nature of
an amparo writ has been, in turn, clearly set forth in the landmark case of The Secretary of
National Defense v. Manalo:

x x x The remedy provides rapid judicial relief as it partakes of a summary

proceeding that requires only substantial evidence to make the appropriate reliefs
available to the petitioner; it is not an action to determine criminal guilt
requiring proof beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or administrative responsibility
requiring substantial evidence that will require full and exhaustive
proceedings.

(Roxas v. Macapagl Arroyo, G.R. No. 189155, September 7, 2010)

Responsibility and/or accountability: The legal basis or bases for impleading

military commanders in amparo cases. Responsibility refers to the extent the actors
have participated in an enforced disappearance. Accountability refers to the measure
of remedies that should be addressed to those who exhibited involvement in the
enforced disappearance without bringing the level of their complicity to the level of
responsibility, or who are imputed with knowledge relating to the enforced
disappearance and who carry the burden of disclosure, or those who carry, but have
failed to discharge, the burden of extraordinary diligence in the investigation of the
enforced disappearance.

The inapplicability of the doctrine of command responsibility in an amparo proceeding

does not, by any measure, preclude impleading military or police commanders on the ground that
the complained acts in the petition were committed with their direct or indirect acquiescence. In
which case, commanders may be impleaded—not actually on the basis of command
responsibility—but rather on the ground of their responsibility, or at least accountability. (Roxas
v. Macapagl Arroyo, G.R. No. 189155, September 7, 2010)

[T]he inapplicability of the doctrine of command responsibility in an amparo proceeding

does not, by any measure, preclude impleading military or police commanders on the ground that
the complained acts in the petition were committed with their direct or indirect acquiescence.
Commanders may therefore be impleaded not actually on the basis of command responsibility
but rather on the ground of their responsibility, or at least accountability.

In Razon, Jr. v. Tagitis, the Court defined responsibility and accountability as these
terms are applied to amparo proceedings, as follows:

x x x Responsibility refers to the extent the actors have been established by

substantial evidence to have participated in whatever way, by action or omission, in an
enforced disappearance, as a measure of the remedies this Court shall craft, among them,
the directive to file the appropriate criminal and civil cases against the responsible parties
in the proper courts. Accountability, on the other hand, refers to the measure of
remedies that should be addressed to those who exhibited involvement in the
enforced disappearance without bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with knowledge relating to the enforced
disappearance and who carry the burden of disclosure; or those who carry, but have
failed to discharge, the burden of extraordinary diligence in the investigation
of the enforced disappearance. x x x (Emphasis supplied.)

Assessing the evidence on record, we find that the participation in any manner of military
and police authorities in the abduction of James has not been adequately proven. The identities
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of the abductors have not been established, much less their link to any military or police
unit. There is likewise no concrete evidence indicating that James is being held or detained upon
orders of or with acquiescence of government agents. Consequently, the trial court erred in
granting amparo reliefs by ordering the respondent officials (1) to disclose where James Balao is
detained or confined, (2) to release him from such detention or confinement, and (3) to cease and
desist from further inflicting harm upon his person. Such pronouncement of responsibility on the
part of public respondents cannot be made given the insufficiency of evidence. (Balao v. Arroyo,
G.R. No. 186050, December 13, 2011)

Writ of amparo: Command responsibility may be loosely applied in amparo

cases in order to identify those accountable individuals who have the power to
effectively implement whatever processes an amparo court would issue.

[A]mparo proceedings determine (a) responsibility, or the extent the actors have been
established by substantial evidence to have participated in whatever way, by action or omission,
in an enforced disappearance, and (b) accountability, or the measure of remedies that should be
addressed to those (i) who exhibited involvement in the enforced disappearance without bringing
the level of their complicity to the level of responsibility defined above; or (ii) who are imputed
with knowledge relating to the enforced disappearance and who carry the burden of disclosure;
or (iii) those who carry, but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. Thus, although there is no determination of criminal,
civil or administrative liabilities, the doctrine of command responsibility may nevertheless be
applied to ascertain responsibility and accountability within these foregoing definitions.

a. Command responsibility of the President

Having established the applicability of the doctrine of command responsibility

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

To hold someone liable under the doctrine of command responsibility, the following
elements must obtain:

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

and the perpetrator of the crime as his subordinate;

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

c. the superior failed to take the necessary and reasonable measures to prevent the
criminal acts or punish the perpetrators thereof.

The president, being the commander-in-chief of all armed forces, necessarily possesses
control over the military that qualifies him as a superior within the purview of the command
responsibility doctrine.

On the issue of knowledge, it must be pointed out that although international tribunals
apply a strict standard of knowledge, i.e., actual knowledge, such may nonetheless be established
through circumstantial evidence.] In the Philippines, a more liberal view is adopted and superiors
may be charged with constructive knowledge. x x x Under E.O. 226, a government official may be
held liable for neglect of duty under the doctrine of command responsibility if he has knowledge
that a crime or offense shall be committed, is being committed, or has been committed by his
subordinates, or by others within his area of responsibility and, despite such knowledge, he did
not take preventive or corrective action either before, during, or immediately after its
commission. Knowledge of the commission of irregularities, crimes or offenses is presumed when
(a) the acts are widespread within the government officials area of jurisdiction; (b) the acts have
been repeatedly or regularly committed within his area of responsibility; or (c) members of his
immediate staff or office personnel are involved.

Meanwhile, as to the issue of failure to prevent or punish, it is important to note that as the
commander-in-chief of the armed forces, the president has the power to effectively command, control
and discipline the military. (Rodriguez v. Macapagal Arroyo, G.R. No. 191805, November 15,
2011)

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 In amparo proceedings, responsibility or accountability for extrajudicial killing
must be established by substantial evidence.

The next question that must be tackled is whether Rodriguez has proven through
substantial evidence that former President Arroyo is responsible or accountable for his abduction.
We rule in the negative. Aside from Rodriguez’s general averments, there is no piece of evidence
that could establish her responsibility or accountability for his abduction. Neither was there even
a clear attempt to show that she should have known about the violation of his right to life, liberty
or security, or that she had failed to investigate, punish or prevent it. (Rodriguez v. Macapagal
Arroyo, G.R. No. 191805, November 15, 2011)

There is no determination of administrative, civil or criminal liability

in amparo and habeas data proceedings, courts can only go as far as ascertaining
responsibility or accountability for the enforced disappearance or extrajudicial killing.

[T]here is no determination of administrative, civil or criminal liability

in amparo and habeas data proceedings, courts can only go as far as ascertaining responsibility
or accountability for the enforced disappearance or extrajudicial killing. As we held in Razon v.
Tagitis:

It does not determine guilt nor pinpoint criminal culpability for the disappearance;
rather, it determines responsibility, or at least accountability, for the enforced
disappearance for purposes of imposing the appropriate remedies to address the
disappearance. Responsibility refers to the extent the actors have been established by
substantial evidence to have participated in whatever way, by action or omission, in an
enforced disappearance, as a measure of the remedies this Court shall craft, among them,
the directive to file the appropriate criminal and civil cases against the responsible parties
in the proper courts. Accountability, on the other hand, refers to the measure of
remedies that should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of disclosure; or those who carry, but
have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the issuance of the Writ
of Amparo is justified by our primary goal of addressing the disappearance, so that the life
of the victim is preserved and his liberty and security are restored. (Emphasis supplied.)

(Rodriguez v. Macapagal-Arroyo, G.R. No. 193160, November 15, 2011)

THE WRIT OF HABEAS DATA

The writ of habeas data is a remedy in case a person’s right to privacy in life,
liberty or security is violated or threatened by an unlawful act or omission of a public
official or employee, or of a private individual or entity engaged in the gathering,
collecting or storing of data or information regarding the person, family, home and
correspondence of the aggrieved party. It is designed to protect the image, privacy,
honor, information, and freedom of information of an individual or a person’s right to
control information regarding oneself.

The writ of habeas data is a remedy available to any person whose right to privacy in life,
liberty or security is violated or threatened by an unlawful act or omission of a public official or
employee, or of a private individual or entity engaged in the gathering, collecting or storing of data
or information regarding the person, family, home and correspondence of the aggrieved party. It
is an independent and summary remedy designed to protect the image, privacy, honor,
information, and freedom of information of an individual, and to provide a forum to enforce one’s
right to the truth and to informational privacy. It seeks to protect a person’s right to control
information regarding oneself, particularly in instances in which such information is being
collected through unlawful means in order to achieve unlawful ends. (Vivares v. St. Theresa’s
College, G.R. No. 202666, September 29, 2014)

The writ of habeas data is an independent and summary remedy designed to protect the
image, privacy, honor, information, and freedom of information of an individual, and to provide
a forum to enforce one’s right to the truth and to informational privacy.

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 It seeks to protect a person’s right to control information regarding oneself, particularly in
instances in which such information is being collected through unlawful means in order to achieve
unlawful ends. (Gamboa v. Chan, G.R. No. 193636, July 24, 2012)

Writ of habeas data: There must be a nexus between the right to privacy on
the one hand, and the right to life, liberty or security on the other for the writ to be
granted.

It must be emphasized that in order for the privilege of the writ to be granted, there must
exist a nexus between the right to privacy on the one hand, and the right to life, liberty or security
on the other. Section 1 of the Rule on the Writ of Habeas Data reads:

Habeas data – The writ of habeas data is a remedy available to any person whose right to
privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a
public official or employee, or of a private individual or entity engaged in the gathering, collecting
or storing of data information regarding the person, family, home and correspondence of the
aggrieved party. (Gamboa v. Chan, G.R. No. 193636, July 24, 2012)

In developing the writ of habeas data, the Court aimed to protect an individual’s right to
informational privacy, among others. A comparative law scholar has, in fact, defined habeas
dataas "a procedure designed to safeguard individual freedom from abuse in the information age."
The writ, however, will not issue on the basis merely of an alleged unauthorized access to
information about a person. Availment of the writ requires the existence of a nexus between the
right to privacy on the one hand, and the right to life, liberty or security on the other. Thus, the
existence of a person’s right to informational privacy and a showing, at least by substantial
evidence, of an actual or threatened violation of the right to privacy in life, liberty or security of
the victim are indispensable before the privilege of the writ may be extended. (Vivares v. St.
Theresa’s College, G.R. No. 202666, September 29, 2014)

The right to privacy is not absolute. It may succumb to an opposing or

overriding state interest deemed legitimate and compelling.

Clearly, the right to privacy is considered a fundamental right that must be protected from
intrusion or constraint. However, in Standard Chartered Bank v. Senate Committee on Banks,
this Court underscored that the right to privacy is not absolute, viz:

With respect to the right of privacy which petitioners claim respondent has violated,
suffice it to state that privacy is not an absolute right. While it is true that Section 21, Article
VI of the Constitution, guarantees respect for the rights of persons affected by the legislative
investigation, not every invocation of the right to privacy should be allowed to thwart a
legitimate congressional inquiry. In Sabio v. Gordon, we have held that the right of the
people to access information on matters of public concern generally prevails over the right
to privacy of ordinary financial transactions. In that case, we declared that the right to privacy
is not absolute where there is an overriding compelling state interest. Employing the rational
basis relationship test, as laid down in Morfe v. Mutuc, there is no infringement of the
individual’s right to privacy as the requirement to disclosure information is for a valid
purpose, in this case, to ensure that the government agencies involved in regulating banking
transactions adequately protect the public who invest in foreign securities. Suffice it to state
that this purpose constitutes a reason compelling enough to proceed with the assailed
legislative investigation.

Therefore, when the right to privacy finds tension with a competing state objective, the
courts are required to weigh both notions. In these cases, although considered a fundamental
right, the right to privacy may nevertheless succumb to an opposing or overriding state interest
deemed legitimate and compelling. (Gamboa v. Chan, G.R. No. 193636, July 24, 2012)

An application for a writ of habeas data may be denied if the right to privacy in
life, liberty or security must yield to an overriding legitimate state interest, such as
dismantling of private armed groups (PAGs). The state interest of dismantling PAGs
far outweighs the alleged intrusion on the private life of Gamboa. Thus, the act of the
police in collecting information on individuals suspected of maintaining PAGs, such as
Gamboa, and in sharing and forwarding such information to a government body

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tasked to investigate PAGs was not an unlawful act that violated or threatened her
right to privacy in life, liberty or security. The fact that the PNP released information
to the government investigating commission without prior communication to Gamboa
and without affording her the opportunity to refute the same cannot be interpreted
as a violation or threat to her right to privacy since that act is an inherent and crucial
component of intelligence-gathering and investigation.

On 8 December 2009, former President Gloria Macapagal-Arroyo issued Administrative

Order No. 275 (A.O. 275), "Creating an Independent Commission to Address the Alleged
Existence of Private Armies in the Country." The body, which was later on referred to as the
Zeñarosa Commission, was formed to investigate the existence of private army groups (PAGs) in
the country with a view to eliminating them before the 10 May 2010 elections and dismantling
them permanently in the future. Upon the conclusion of its investigation, the Zeñarosa
Commission released and submitted to the Office of the President a confidential report x x x.

Gamboa [Mayor of Dingras, Ilocos Norte] alleged that the Philippine National Police in
Ilocos Norte (PNP–Ilocos Norte) conducted a series of surveillance operations against her and
her aides,and classified her as someone who keeps a PAG. Purportedly without the benefit of data
verification, PNP–Ilocos Norte forwarded the information gathered on her to the Zeñarosa
Commission, thereby causing her inclusion in the Report’s enumeration of individuals
maintaining PAGs.

xxx

On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news program the portion of
the Report naming Gamboa as one of the politicians alleged to be maintaining a PAG. Gamboa
averred that her association with a PAG also appeared on print media. Thus, she was publicly
tagged as someone who maintains a PAG on the basis of the unverified information that the PNP-
Ilocos Norte gathered and forwarded to the Zeñarosa Commission. As a result, she claimed that
her malicious or reckless inclusion in the enumeration of personalities maintaining a PAG as
published in the Report also made her, as well as her supporters and other people identified with
her, susceptible to harassment and police surveillance operations.

Contending that her right to privacy was violated and her reputation maligned and
destroyed, Gamboa filed a Petition dated 9 July 2010 for the issuance of a writ of habeas data
against respondents in their capacities as officials of the PNP-Ilocos Norte. In her Petition, she
prayed for the following reliefs: (a) destruction of the unverified reports from the PNP-Ilocos
Norte database; (b) withdrawal of all information forwarded to higher PNP officials; (c)
rectification of the damage done to her honor; (d) ordering respondents to refrain from
forwarding unverified reports against her; and (e) restraining respondents from making baseless
reports.

xxx

The Constitution explicitly mandates the dismantling of private armies and other armed
groups not recognized by the duly constituted authority. x x x

Taking into account these constitutional fiats, it is clear that the issuance of A.O. 275
articulates a legitimate state aim, which is to investigate the existence of PAGs with the ultimate
objective of dismantling them permanently.

To enable the Zeñarosa Commission to achieve its goals, A.O. 275 clothed it with the
powers of an investigative body, including the power to summon witnesses, administer oaths, take
testimony or evidence relevant to the investigation and use compulsory processes to produce
documents, books, and records. A.O. 275 likewise authorized the Zeñarosa Commission to
deputize the Armed Forces of the Philippines, the National Bureau of Investigation, the
Department of Justice, the PNP, and any other law enforcement agency to assist the commission
in the performance of its functions.

xxx

[T]he right to informational privacy, as a specific component of the right to privacy, may
yield to an overriding legitimate state interest. In similar fashion, the determination of whether
the privilege of the writ of habeas data, being an extraordinary remedy, may be granted in this
case entails a delicate balancing of the alleged intrusion upon the private life of Gamboa and the
relevant state interest involved.
96 | P a g e
 xxx

The Constitution explicitly mandates the dismantling of private armies and other armed
groups not recognized by the duly constituted authority. x x x

Taking into account these constitutional fiats, it is clear that the issuance of A.O. 275
articulates a legitimate state aim, which is to investigate the existence of [private armed groups]
PAGs with the ultimate objective of dismantling them permanently.

To enable the Zeñarosa Commission to achieve its goals, A.O. 275 clothed it with the
powers of an investigative body, including the power to summon witnesses, administer oaths, take
testimony or evidence relevant to the investigation and use compulsory processes to produce
documents, books, and records. A.O. 275 likewise authorized the Zeñarosa Commission to
deputize the Armed Forces of the Philippines, the National Bureau of Investigation, the
Department of Justice, the PNP, and any other law enforcement agency to assist the commission
in the performance of its functions.

xxx

Pursuant to the state interest of dismantling PAGs, as well as the foregoing powers and
functions accorded to the Zeñarosa Commission and the PNP, the latter collected information on
individuals suspected of maintaining PAGs, monitored them and counteracted their activities.
One of those individuals is herein petitioner Gamboa.

x x x Contrary to the ruling of the trial court, however, the forwarding of information by
the PNP to the Zeñarosa Commission was not an unlawful act that violated or threatened her right
to privacy in life, liberty or security.

The PNP was rationally expected to forward and share intelligence regarding PAGs with
the body specifically created for the purpose of investigating the existence of these notorious
groups. Moreover, the Zeñarosa Commission was explicitly authorized to deputize the police force
in the fulfillment of the former’s mandate, and thus had the power to request assistance from the
latter.

x x x [T]he fact that the PNP released information to the Zeñarosa Commission without
prior communication to Gamboa and without affording her the opportunity to refute the same
cannot be interpreted as a violation or threat to her right to privacy since that act is an inherent
and crucial component of intelligence-gathering and investigation. x x x

xxx

[T]he state interest of dismantling PAGs far outweighs the alleged intrusion on the private
life of Gamboa, especially when the collection and forwarding by the PNP of information against
her was pursuant to a lawful mandate. Therefore, the privilege of the writ of habeas data must be
denied. (Gamboa v. Chan, G.R. No. 193636, July 24, 2012)

LIBERTY OF ABODE

The Constitution provides that urban or rural poor dwellers shall not be evicted
nor their dwelling demolished, except in accordance with law and in a just and
humane manner. RA 7279 allows summary evictions and demolition in cases where
persons or entities occupy danger areas and when persons occupy areas where
government infrastructure projects with available funding are about to be
implemented. To ensure that evictions and demolitions are conducted in a just and
humane manner, RA 7279 commands requires compliance with a prescribed
procedure in executing eviction and/or demolition orders, including prior 30-day
notice and adequate consultation. Evictions and demolitions without any court order
under RA 7279 are valid.

This is a petition for prohibition and mandamus to enjoin the public respondents from
evicting the individual petitioners as well as the petitioner associations’ members from their
dwellings in the cities of San Juan, Navotas and Quezon without any court order, and to compel

97 | P a g e
the respondents to afford them judicial process prior to evictions and demolitions. The petition
primarily seeks to declare as unconstitutional Section 28 (a) and (b) of Republic Act No. 7279 (RA
7279), otherwise known as Urban Development Housing Act, which authorizes evictions and
demolitions under certain circumstances without any court order.

xxx

We carefully read the petitions and we conclude that they fail to compellingly show the
necessity of examining the constitutionality of Section 28 (a) and (b) of RA 7279 in the light of
Sections 1 [due process] and 6 [liberty of abode and of changing the same], Article 3 of the 1987
Constitution. In Magkalas v. NHA, this Court had already ruled on the validity of evictions and
demolitions without any court order. In that case, we affirmed the validity of Section 2 of
Presidential Decree No. 1472 which authorizes the NHA to summarily eject all informal settlers’
colonies on government resettlement projects as well as any illegal occupant in any homelot,
apartment or dwelling unit owned or administered by the NHA. x x x We further stated that
demolitions and evictions may be validly carried out even without a judicial order in the following
instances: x x x

We note that Section 10, Article13 of the 1987 Constitution provides that urban or rural
poor dwellers shall not be evicted nor their dwelling demolished, except in accordance with law
and in a just and humane manner. Paragraph 1, Section 28 of RA 7279 allows summary evictions
and demolition in cases where persons or entities occupy danger areas and when persons or
entities occupy areas where government infrastructure projects with available funding are about
to be implemented.

To ensure that evictions and demolitions are conducted in a just and humane manner,
paragraph 2, Section 28 of RA 7279 commands the public respondents to comply with the
following prescribed procedure in executing eviction and/or demolition orders:
In the execution of eviction or demolition orders involving underprivileged and
homeless citizens, the following shall be mandatory:

(1) Notice upon the effected persons or entities at least thirty (30) days prior to the
date of eviction or demolition;

(2) Adequate consultations on the matter of settlement with the duly designated
representatives of the families to be resettled and the affected communities in the areas
where they are to be relocated;

(3) Presence of local government officials or their representatives during eviction or

demolition;

(4) Proper identification of all persons taking part in the demolition;

(5) Execution of eviction or demolition only during regular office hours from
Mondays to Fridays and during good weather, unless the affected families consent otherwise;

(6) No use of heavy equipment for demolition except for structures that are
permanent and of concrete materials;

(7) Proper uniforms for members of the Philippine National Police who shall occupy
the first line of law enforcement and observe proper disturbance control procedures; and

(8) Adequate relocation, whether temporary or permanent: Provided, however, That

in cases of eviction and demolition pursuant to a court order involving underprivileged and
homeless citizens, relocation shall be undertaken by the local government unit concerned
and the National Housing Authority with the assistance of other government agencies within
forty-five (45) days from service of notice of final judgment by the court, after which period
the said order shall be executed: Provided, further, That should relocation not be possible
within the said period, financial assistance in the amount equivalent to the prevailing
minimum daily wage multiplied by sixty (60) days shall be extended to the affected families
by the local government unit concerned.

(Kalipunan Ang Damay Ang Mahihirap v. Robredo, G.R. No. 200903, July 22, 2014)

RIGHT TO TRAVEL

How restricting travel may constitute a violation of freedom of religion, speech,

assembly, and association. Whenever the freedom of religion, speech, assembly, and
association require one to move about, such movement must necessarily be protected
98 | P a g e
under the First Amendment. Restricting movement in those circumstances to the
extent that these rights cannot be exercised without violating the law is equivalent
to a denial of those rights.

Petitioners further assail the constitutionality of the Curfew Ordinances based on the
minors' right to travel. They claim that the liberty to travel is a fundamental right, which,
therefore, necessitates the application of the strict scrutiny test. Further, they submit that even if
there exists a compelling State interest, such as the prevention of juvenile crime and the protection
of minors from crime, there are other less restrictive means for achieving the government's
interest. xxx

Petitioner's submissions are partly meritorious.

xxx

The right to travel is recognized and guaranteed as a fundamental right88 under Section
6, Article III of the 1987 Constitution, to wit:

Section 6. 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. (Emphases
and underscoring supplied)

Jurisprudence provides that this right refers to the right to move freely from the
Philippines to other countries or within the Philippines. It is a right embraced within the general
concept of liberty. Liberty - a birthright of every person - includes the power of locomotion and
the right of citizens to be free to use their faculties in lawful ways and to live and work where they
desire or where they can best pursue the ends of life.

The right to travel is essential as it enables individuals to access and exercise their other
rights, such as the rights to education, free expression, assembly, association, and religion. The
inter-relation of the right to travel with other fundamental rights was briefly rationalized in City
of Maquoketa v. Russell, as follows:

Whenever the First Amendment rights of freedom of religion, speech,

assembly, and association require one to move about, such movement must
necessarily be protected under the First Amendment.

Restricting movement in those circumstances to the extent that First

Amendment Rights cannot be exercised without violating the law is equivalent to
a denial of those rights. One court has eloquently pointed this out:

We would not deny the relatedness of the rights guaranteed by the First
Amendment to freedom of travel and movement. If, for any reason, people cannot
walk or drive to their church, their freedom to worship is impaired. If, for any
reason, people cannot walk or drive to the meeting hall, freedom of assembly is
effectively blocked. If, for any reason, people cannot safely walk the sidewalks or
drive the streets of a community, opportunities for freedom of speech are sharply
limited. Freedom of movement is inextricably involved with freedoms set forth in
the First Amendment. (Emphases supplied)

(Samahan ng mga Progresibong Kabataan v. Quezon City, G.R. No. 225442, August 8,
2017)

The right to travel is not absolute. As the 1987 Constitution itself reads, the
State may impose limitations on the exercise of this right, provided that they: (1)
serve the interest of national security, public safety, or public health; and (2) are
provided by law.

Nevertheless, grave and overriding considerations of public interest justify restrictions

even if made against fundamental rights. Specifically, on the freedom to move from one place to
another, jurisprudence provides that this right is not absolute. As the 1987 Constitution itself
reads, the State may impose limitations on the exercise of this right, provided that they: (1) serve
the interest of national security, public safety, or public health; and (2) are provided by law.

The stated purposes of the Curfew Ordinances, specifically the promotion of juvenile
safety and prevention of juvenile crime, inarguably serve the interest of public safety. The
restriction on the minor's movement and activities within the confines of their residences and

99 | P a g e
their immediate vicinity during the curfew period is perceived to reduce the probability of the
minor becoming victims of or getting involved in crimes and criminal activities. As to the second
requirement, i.e., that the limitation "be provided by law," our legal system is replete with laws
emphasizing the State's duty to afford special protection to children, i.e., RA 7610,98 as amended,
RA 977599 RA 9262100 RA 9851101RA 9344102 RA 10364103 RA 9211104 RA8980,105
RA9288,106 and Presidential Decree (PD) 603,107 as amended.

Particularly relevant to this case is Article 139 of PD 603, which explicitly authorizes local
government units, through their city or municipal councils, to set curfew hours for children. xxx

xxx

As explicitly worded, city councils are authorized to enact curfew ordinances (as what
respondents have done in this case) and enforce the same through their local officials. In other
words, PD 603 provides sufficient statutory basis - as required by the Constitution - to restrict the
minors' exercise of the right to travel. (Samahan ng mga Progresibong Kabataan v. Quezon City,
G.R. No. 225442, August 8, 2017)

Limitations on the fundamental right to travel of minors are permissible if these

pass the strict scrutiny test. Under the strict scrutiny test, a legislative classification
that interferes with the exercise of a fundamental right or operates to the
disadvantage of a suspect class is presumed unconstitutional. Thus, the government
has the burden of proving that the classification (1) is necessary to achieve a
compelling State interest, and (2) is the least restrictive means to protect such
interest or the means chosen is narrowly tailored to accomplish the interest.

The restrictions set by the Curfew Ordinances that apply solely to minors are likewise
constitutionally permissible. In this relation, this Court recognizes that minors do possess and
enjoy constitutional rights, but the exercise of these rights is not co-extensive as those of adults.
They are always subject to the authority or custody of another, such as their parent/s and/or
guardian/s, and the State. As parens patriae, the State regulates and, to a certain extent, restricts
the minors' exercise of their rights, such as in their affairs concerning the right to vote, the right
to execute contracts, and the right to engage in gainful employment. With respect to the right to
travel, minors are required by law to obtain a clearance from the Department of Social Welfare
and Development before they can travel to a foreign country by themselves or with a person other
than their parents. These limitations demonstrate that the State has broader authority over the
minors' activities than over similar actions of adults, and overall, reflect the State's general
interest in the well-being of minors. Thus, the State may impose limitations on the minors'
exercise of rights even though these limitations do not generally apply to adults.

In Bellotti, the US Supreme Court identified three (3) justifications for the differential
treatment of the minors' constitutional rights. These are: first, the peculiar vulnerability of
children; second, their inability to make critical decisions in an informed and mature manner;
and third, the importance of the parental role in child rearing:

xxx

Moreover, in Prince v. Massachusetts, the US Supreme Court acknowledged the

heightened dangers on the streets to minors, as compared to adults:

xxx

For these reasons, the State is justified in setting restrictions on the minors' exercise of
their travel rights, provided, they are singled out on reasonable grounds.

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

Considering that the right to travel is a fundamental right in our legal system guaranteed
no less by our Constitution, the strict scrutiny test is the applicable test. At this juncture, it should
be emphasized that minors enjoy the same constitutional rights as adults; the fact that the State
has broader authority over minors than over adults does not trigger the application of a lower
level of scrutiny.

100 | P a g e
 xxx

The strict scrutiny test as applied to minors entails a consideration of the peculiar
circumstances of minors as enumerated in Bellotti vis-a-vis the State's duty as parens patriae to
protect and preserve their well-being with the compelling State interests justifying the assailed
government act. Under the strict scrutiny test, a legislative classification that interferes with the
exercise of a fundamental right or operates to the disadvantage of a suspect class is presumed
unconstitutional. Thus, the government has the burden of proving that the classification (1) is
necessary to achieve a compelling State interest, and (2) is the least restrictive means to protect
such interest or the means chosen is narrowly tailored to accomplish the interest. (Samahan ng
mga Progresibong Kabataan v. Quezon City, G.R. No. 225442, August 8, 2017)

The compelling state interest requirement of the strict scrutiny test:

Compelling State interests include constitutionally declared policies. That children's
welfare and the State's mandate to protect and care for them as parens patriae
constitute compelling interests to justify regulations by the State. In this case,
respondents have sufficiently established that the ultimate objective of the Curfew
Ordinances is to keep unsupervised minors during the late hours of night time off of
public areas, so as to reduce - if not totally eliminate - their exposure to potential
harm, and to insulate them against criminal pressure and influences.

a. Compelling State Interest.

Jurisprudence holds that compelling State interests include constitutionally declared

policies. This Court has ruled that children's welfare and the State's mandate to protect and care
for them as parens patriae constitute compelling interests to justify regulations by the State. It is
akin to the paramount interest of the state for which some individual liberties must give way. As
explained in Nunez, the Bellotti framework shows that the State has a compelling interest in
imposing greater restrictions on minors than on adults. The limitations on minors under
Philippine laws also highlight this compelling interest of the State to protect and care for their
welfare.

In this case, respondents have sufficiently established that the ultimate objective of the
Curfew Ordinances is to keep unsupervised minors during the late hours of night time off of public
areas, so as to reduce - if not totally eliminate - their exposure to potential harm, and to insulate
them against criminal pressure and influences which may even include themselves. xxx

xxxx

With the first requirement of the strict scrutiny test satisfied, the Court now proceeds to
determine if the restrictions set forth in· the Curfew Ordinances are narrowly tailored or provide
the least restrictive means to address the cited compelling State interest - the second requirement
of the strict scrutiny test. (Samahan ng mga Progresibong Kabataan v. Quezon City, G.R. No.
225442, August 8, 2017)

The least restrictive means requirement of the strict scrutiny test: While
fundamental rights may be restricted, the restrictions must be minimal or only to the
extent necessary to achieve the purpose or to address the State's compelling interest.
When it is possible for governmental regulations to be more narrowly drawn to avoid
conflicts with constitutional rights, then they must be so narrowly drawn. The curfew
ordinances, in restricting the right to travel, must also sufficiently protect the minors'
rights of association, free exercise of religion, travel, to peaceably assemble, and of
free expression.

b. Least Restrictive Means/ Narrowly Drawn.

The second requirement of the strict scrutiny test stems from the fundamental premise
that citizens should not be hampered from pursuing legitimate activities in the exercise of their
constitutional rights. While rights may be restricted, the restrictions must be minimal or only to
the extent necessary to achieve the purpose or to address the State's compelling interest. When it
is possible for governmental regulations to be more narrowly drawn to avoid conflicts with
constitutional rights, then they must be so narrowly drawn.

Although treated differently from adults, the foregoing standard applies to regulations on
minors as they are still accorded the freedom to participate in any legitimate activity, whether it
be social, religious, or civic. Thus, in the present case, each of the ordinances must be narrowly

101 | P a g e
tailored as to ensure minimal constraint not only on the minors' right to travel but also on their
other constitutional rights.

xxx

After a thorough evaluation of the ordinances' respective provisions, this Court finds that
only the Quezon City Ordinance meets the above-discussed requirement, while the Manila and
Navotas Ordinances do not.

The Manila Ordinance cites only four (4) exemptions from the coverage of the curfew,
namely: (a) minors accompanied by their parents, family members of legal age, or guardian; (b)
those running lawful errands such as buying of medicines, using of telecommunication facilities
for emergency purposes and the like; (c) night school students and those who, by virtue of their
employment, are required in the streets or outside their residence after 10:00 p.m.; and (d) those
working at night.

For its part, the Navotas Ordinance provides more exceptions, to wit: (a) minors with night
classes; (b) those working at night; (c) those who attended a school or church activity, in
coordination with a specific barangay office; (d) those traveling towards home during the curfew
hours; (e) those running errands under the supervision of their parents, guardians, or persons of
legal age having authority over them; (j) those involved in accidents, calamities, and the like. It
also exempts minors from the curfew during these specific occasions: Christmas eve, Christmas
day, New Year's eve, New Year's day, the night before the barangay fiesta, the day of the fiesta, All
Saints' and All Souls' Day, Holy Thursday, Good Friday, Black Saturday, and Easter Sunday.

This Court observes that these two ordinances are not narrowly drawn in that their
exceptions are inadequate and therefore, run the risk of overly restricting the minors'
fundamental freedoms. To be fair, both ordinances protect the rights to education, to gainful
employment, and to travel at night from school or work. However, even with those safeguards,
the Navotas Ordinance and, to a greater extent, the Manila Ordinance still do not account for the
reasonable exercise of the minors' rights of association, free exercise of religion, rights to
peaceably assemble, and of free expression, among others.

The exceptions under the Manila Ordinance are too limited, and thus, unduly trample
upon protected liberties. The Navotas Ordinance is apparently more protective of constitutional
rights than the Manila Ordinance; nonetheless, it still provides insufficient safeguards as
discussed in detail below:

First, although it allows minors to engage in school or church activities, it hinders them
from engaging in legitimate non-school or nonchurch activities in the streets or going to and from
such activities; thus, their freedom of association is effectively curtailed. It bears stressing that
participation in legitimate activities of organizations, other than school or church, also contributes
to the minors' social, emotional, and intellectual development, yet, such participation is not
exempted under the Navotas Ordinance.

Second, although the Navotas Ordinance does not impose the curfew during Christmas
Eve and Christmas day, it effectively prohibits minors from attending traditional religious
activities (such as simbang gabi) at night without accompanying adults, similar to the scenario
depicted in Mosier. This legitimate activity done pursuant to the minors' right to freely exercise
their religion is therefore effectively curtailed.

Third, the Navotas Ordinance does not accommodate avenues for minors to engage in
political rallies or attend city council meetings to voice out their concerns in line with their right
to peaceably assemble and to free expression.

Certainly, minors are allowed under the Navotas Ordinance to engage in these activities
outside curfew hours, but the Court finds no reason to prohibit them from participating in these
legitimate activities during curfew hours. Such proscription does not advance the State's
compelling interest to protect minors from the dangers of the streets at night, such as becoming
prey or instruments of criminal activity. These legitimate activities are merely hindered without
any reasonable relation to the State's interest; hence, the Navotas Ordinance is not narrowly
drawn. More so, the Manila Ordinance, with its limited exceptions, is also not narrowly drawn.

In sum, the Manila and Navotas Ordinances should be completely stricken down since
their exceptions, which are essentially determinative of the scope and breadth of the curfew
regulations, are inadequate to ensure protection of the above-mentioned fundamental rights.
While some provisions may be valid, the same are merely ancillary thereto; as such, they cannot
subsist independently despite the presence150 of any separability clause.

102 | P a g e
 The Quezon City Ordinance stands in stark contrast to the first two (2) ordinances as it
sufficiently safeguards the minors' constitutional rights. It provides the following exceptions:

xxx
Section 4. EXEMPTIONS - Minor children under the following circumstances shall
not be covered by the provisions of this ordinance;

(a) Those accompanied by their parents or guardian;

(b) Those on their way to or from a party, graduation ceremony, religious mass,
and/or other extra-curricular activities of their school or organization wherein their
attendance are required or otherwise indispensable, or when such minors are out and
unable to go home early due to circumstances beyond their control as verified by the proper
authorities concerned; and

(c) Those attending to, or in experience of, an emergency situation such as

conflagration, earthquake, hospitalization, road accident, law enforcers encounter, and
similar incidents[;]

(d) When the minor is engaged in an authorized employment activity, or going to

or returning home from the same place of employment activity without any detour or stop;

(e) When the minor is in [a] motor vehicle or other travel accompanied by an adult
in no violation of this Ordinance;

(f) When the minor is involved in an emergency;

(g) When the minor is out of his/her residence attending an official school,
religious, recreational, educational, social, community or other similar private activity
sponsored by the city, barangay, school, or other similar private civic/religious
organization/group (recognized by the community) that supervises the activity or when the
minor is going to or returning home from such activity, without any detour or stop; and

(h) When the minor can present papers certifying that he/she is a student and was
dismissed from his/her class/es in the evening or that he/she is a working student.
(Emphases and underscoring supplied)

As compared to the first two (2) ordinances, the list of exceptions under the Quezon City
Ordinance is more narrowly drawn to sufficiently protect the minors' rights of association, free
exercise of religion, travel, to peaceably assemble, and of free expression.

xxx. Thus, with these numerous exceptions, the Quezon City Ordinance, in truth, only
prohibits unsupervised activities that hardly contribute to the well-being of minors who publicly
loaf and loiter within the locality at a time where danger is perceivably more prominent.

xxx

Under our legal system's own recognition of a minor's inherent lack of full rational
capacity, and balancing the same against the State's compelling interest to promote juvenile safety
and prevent juvenile crime, this Court finds that the curfew imposed under the Quezon City
Ordinance is reasonably justified with its narrowly drawn exceptions and hence, constitutional.
Needless to say, these exceptions are in no way limited or restricted, as the State, in accordance
with the lawful exercise of its police power, is not precluded from crafting, adding, or modifying
exceptions in similar laws/ordinances for as long as the regulation, overall, passes the parameters
of scrutiny as applied in this case. (Samahan ng mga Progresibong Kabataan v. Quezon City,
G.R. No. 225442, August 8, 2017)

RIGHTS UNDER CUSTODIAL INVESTIGATION

Custodial investigation commences when a person is taken into custody and is

singled out as a suspect in the commission of a crime under investigation and the
police officers begin to ask questions on the suspect's participation therein and which
tend to elicit an admission. If a person, before he is arrested and placed under
custodial investigation, voluntarily confesses to the police his commission of a crime,
such confession, even if done without the assistance of a lawyer, is not in violation of
his constitutional right, and is admissible as evidence.

103 | P a g e
 POI Macusi narrated that accused-appellant suddenly appeared before them at the Police
Station, all wet and holding a knife. Accused-appellant proclaimed that his father was already
dead. Unsuspecting, PO I Macusi asked who killed accused-appellant's father. Accused-appellant
answered, "Sinaksak ko po yang tatay ko! Napatay ko na po!" POI Torre then got the knife from
accused-appellant and gave it to POI Macusi. POI Macusi placed the knife in the custodian cabinet
in the Police Station. Xxx

xxxx

Accused-appellant argues that his oral confession to POI Torre and PO 1 Macusi, without
the assistance of counsel, is inadmissible in evidence for having been made in blatant violation of
his constitutional right under Article III, Section 12 of the 1987 Constitution.

Section 12, paragraphs 1 and 3, Article III (Bill of Rights) of the 1987 Constitution mandate
that:
SEC. 12. (1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the services
of counsel, he must be provided with one. These rights cannot be waived except in writing
and in the presence of counsel.
xxxx

(3) Any confession or admission obtained in violation of this or Section 17 hereof

shall be inadmissible in evidence against him.

The "investigation" in Section I 2, paragraph I, Article III of the I 987 Constitution pertains
to "custodial investigation." Custodial investigation commences when a person is taken into
custody and is singled out as a suspect in the commission of a crime under investigation and the
police officers begin to ask questions on the suspect's participation therein and which tend to elicit
an admission. As we expounded in People v. Marra:

Custodial investigation involves any questioning initiated by law enforcement officers

after a person has been taken into custody or otherwise deprived of his freedom of action in any
significant way. It is only after the investigation ceases to be a general inquiry into an unsolved
crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police
carries out a process of interrogations that lends itself to eliciting incriminating statements that
the rule begins to operate.

Applying the foregoing definitions, accused-appellant was not under custodial

investigation when he admitted, without assistance of counsel, to POI Torre and POI Macusi that
he stabbed his father to death. Accused-appellant's verbal confession was so spontaneously and
voluntarily given and was not elicited through questioning by the police authorities. It may be true
that POI Macusi asked accused-appellant who killed his father, but POI Macusi only did so in
response to accused-appellant's initial declaration that his father was already dead. At that point,
PO I Macusi still had no idea who actually committed the crime and did not consider accused-
appellant as the suspect in his father's killing. Accused-appellant was also merely standing before
POI Torre and POI Macusi in front of the Camiling Police Station and was not yet in police
custody.

xxxx

Accused-appellant was arrested and subjected to custodial investigation by the police

officers only after his confession. Hence, herein accused-appellant's confession, even if done
without the assistance of a lawyer, is not in violation of his constitutional right under Section I2,
paragraph I, Article III of the I987 Constitution. (People v. Guting, G.R. No. 205412, September
9, 2015)

Rights in custodial interrogation apply only to admissions made in a criminal

investigation but not to those made in an administrative investigation. Thus, an
employee’s written statement given during an administrative inquiry conducted by
an employer in connection with an anomaly/irregularity he allegedly committed in
the course of his employment -- is admissible as evidence against the employee, even
if he was not assisted by a lawyer when he signed the written statement.

The constitutional proscription against the admissibility of admission or confession of

guilt obtained in violation of Section 12, Article III of the Constitution, is applicable only in
custodial interrogation.
104 | P a g e
 Custodial interrogation means any questioning initiated by law enforcement authorities
after a person is taken into custody or otherwise deprived of his freedom of action in any
significant manner. Indeed, a person under custodial investigation is guaranteed certain rights
which attach upon the commencement thereof, viz: (1) to remain silent, (2) to have competent
and independent counsel preferably of his own choice, and (3) to be informed of the two other
rights above. In the present case, while it is undisputed that petitioner gave an uncounseled
written statement regarding an anomaly discovered in the branch he managed, the following are
clear: (1) the questioning was not initiated by a law enforcement authority but merely by an
internal affairs manager of the bank; and, (2) petitioner was neither arrested nor restrained of his
liberty in any significant manner during the questioning. Clearly, petitioner cannot be said to be
under custodial investigation and to have been deprived of the constitutional prerogative during
the taking of his written statement.

Moreover, in Remolona v. Civil Service Commission, we declared that the right to counsel
"applies only to admissions made in a criminal investigation but not to those made in an
administrative investigation."

xxx

Here, petitioner’s written statement was given during an administrative inquiry conducted
by his employer in connection with an anomaly/irregularity he allegedly committed in the course
of his employment. No error can therefore be attributed to the courts below in admitting in
evidence and in giving due consideration to petitioner’s written statement as there is no
constitutional impediment to its admissibility. (Tanenggee v. People, G.R. No. 179448, June 26,
2013)

The constitutional right to counsel is available only during custodial investigation. If the
investigation is merely administrative conducted by the employer and not a criminal
investigation, the admission made during such investigation may be used as evidence to justify
dismissal. (Manila Water Company v. Rosario, G.R. No. 188747, January 29, 2014)

There is no constitutional right to counsel for resource persons in a

congressional inquiry.

The right to be assisted by counsel can only be invoked by a person under custodial
investigation suspected for the commission of a crime, and therefore attaches only during such
custodial investigation. Since petitioners Locsin and Andal were invited to the public hearings as
resource persons, they cannot therefore validly invoke their right to counsel. (Philcomsat v.
Senate, G.R. No. 180308, June 19, 2012)

Miranda rights apply even to suspects who voluntarily surrender to the police
and are subjected to questioning.

The right to counsel upon being questioned for the commission of a crime is part of the
Miranda rights, which require that:
. . . (a) any person under custodial investigation has the right to remain silent; (b)
anything he says can and will be used against him in a court of law; (c) he has the right to
talk to an attorney before being questioned and to have his counsel present when being
questioned; and (d) if he cannot afford an attorney, one will be provided before any
questioning if he so desires.

The Miranda rights were incorporated in our Constitution but were modified to include
the statement that any waiver of the right to counsel must be made "in writing and in the presence
of counsel."

The invocation of these rights applies during custodial investigation, which begins "when
the police investigation is no longer a general inquiry into an unsolved crime but has begun to
focus on a particular suspect taken into custody by the police who starts the interrogation and
propounds questions to the person to elicit incriminating statements."

It may appear that the Miranda rights only apply when one is "taken into custody by the
police," such as during an arrest. These rights are intended to protect ordinary citizens from the
pressures of a custodial setting:
The purposes of the safeguards prescribed by Miranda are to ensure that the
police do not coerce or trick captive suspects into confessing, to relieve the "inherently
105 | P a g e
 compelling pressures" "generated by the custodial setting itself," "which work to
undermine the individual’s will to resist," and as much as possible to free courts from the
task of scrutinizing individual cases to try to determine, after the fact, whether particular
confessions were voluntary. Those purposes are implicated as much by in-custody
questioning of persons suspected of misdemeanours as they are by questioning of persons
suspected of felonies. (Emphasis supplied)

Republic Act No. 743896 expanded the definition of custodial investigation to "include the
practice of issuing an ‘invitation’ to a person who is investigated in connection with an offense he
is suspected to have committed, without prejudice to the liability of the ‘inviting’ officer for any
violation of law."

This means that even those who voluntarily surrendered before a police officer must be
apprised of their Miranda rights. (Emphasis supplied) (People v. Chavez, G.R. No. 207950,
September 22, 2014)

RIGHT AGAINST SELF-INCRIMINATION

Paraffin test without a lawyer is valid: The right against self-incrimination

extends only to testimonial compulsion, and not the use of the body of the accused is
examined.

As to the paraffin test to which the appellant was subjected to he raises the question, under
the sixth assigned error, that it was not conducted in the presence of his lawyer. This right is
afforded to any person under investigation for the commission of an offense whose confession or
admission may not be taken unless he is informed of his right to remain silent and to have
competent and independent counsel of his own choice. His right against self-incrimination is not
violated by the taking of the paraffin test of his hands. This constitutional right extends only to
testimonial compulsion and not when the body of the accused is proposed to be examined as in
this case. Indeed, the paraffin test proved positively that he just recently fired a gun. Again, this
kind of evidence buttresses the case of the prosecution. (People v. Fieldad, G.R. No. 196005,
October 1, 2014)

Mandatory drug testing of a person arrested for a non-drug-related offense

violates a person’s right to privacy guaranteed under the right against unreasonable
searches and seizures and the right against self-incrimination. The constitutional
right against self-incrimination proscribes the use of physical or moral compulsion to
extort communications from the accused and not the inclusion of his body in evidence
when it may be material. However, a drug test result is immaterial evidence in the
prosecution for non-drug offenses. Moreover, to impose mandatory drug testing for
all persons arrested regardless of the crime or offense for which the arrest was made
is a blatant attempt to harness a medical test as a tool for criminal prosecution. We
cannot condone drug testing of all arrested persons regardless of the crime or offense
for which the arrest is being made.

The drug test in Section 15 does not cover persons apprehended or arrested for any
unlawful act, but only for unlawful acts listed under Article II of R.A. 9165.

First, "[a] person apprehended or arrested" cannot literally mean any person apprehended
or arrested for any crime. The phrase must be read in context and understood in consonance with
R.A. 9165 [Comprehensive Dangerous Drugs Act of 2002]. Section 15 comprehends persons
arrested or apprehended for unlawful acts listed under Article II of the law.

Hence, a drug test can be made upon persons who are apprehended or arrested for, among
others, the "importation," "sale, trading, administration, dispensation, delivery, distribution and
transportation", "manufacture" and "possession" of dangerous drugs and/or controlled
precursors and essential chemicals; x x x. To make the provision applicable to all persons arrested
or apprehended for any crime not listed under Article II is tantamount to unduly expanding its
meaning. Note that accused appellant here was arrested in the alleged act of extortion.

A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of the
law to rehabilitate persons apprehended or arrested for the unlawful acts enumerated above
instead of charging and convicting them of other crimes with heavier penalties.

xxx

106 | P a g e
 Furthermore, making the phrase "a person apprehended or arrested" in Section 15
applicable to all persons arrested or apprehended for unlawful acts, not only under R.A. 9165 but
for all other crimes, is tantamount to a mandatory drug testing of all persons apprehended or
arrested for any crime. To overextend the application of this provision would run counter to our
pronouncement in Social Justice Society v. Dangerous Drugs Board and Philippine Drug
Enforcement Agency, to wit:

x x x [M]andatory drug testing can never be random and suspicionless. The

ideas of randomness and being suspicionless are antithetical to their being made
defendants in a criminal complaint. They are not randomly picked; neither are they
beyond suspicion. When persons suspected of committing a crime are charged, they
are singled out and are impleaded against their will. The persons thus charged, by
the bare fact of being haled before the prosecutor’s office and peaceably submitting
themselves to drug testing, if that be the case, do not necessarily consent to the
procedure, let alone waive their right to privacy. To impose mandatory drug
testing on the accused is a blatant attempt to harness a medical test as a
tool for criminal prosecution, contrary to the stated objectives of RA
6195. Drug testing in this case would violate a person’s right to privacy
guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the
accused persons are veritably forced to incriminate themselves.
(Emphasis supplied)

(Dela Cruz v. People, G.R. No. 200748, July 23, 2014)

xxx

We are aware of the prohibition against testimonial compulsion and the allowable
exceptions to such proscription. Cases where non-testimonial compulsion has been allowed
reveal, however, that the pieces of evidence obtained were all material to the principal cause
of the arrest.
The constitutional right of an accused against self-incrimination proscribes the use
of physical or moral compulsion to extort communications from the accused and not the
inclusion of his body in evidence when it may be material. Purely mechanical acts are not
included in the prohibition as the accused does not thereby speak his guilt, hence the
assistance and guiding hand of counsel is not required. (People vs. Olvis, 238 Phil. 513
[1987]) The essence of the right against self-incrimination is testimonial compulsion, that is,
the giving of evidence against himself through a testimonial act. (People vs. Casinillo, 213
SCRA 777 [1992]; People vs. Tranca, 235 SCRA 455 [1994]; People vs. Rondero, 378 Phil. 123
[1999]) Hence ,it has been held that a woman charged with adultery may be compelled to
submit to physical examination to determine her pregnancy; (Villaflor vs. Summers, 41 Phil.
62 [1920]) and an accused may be compelled to submit to physical examination and to have
a substance taken from his body for medical determination as to whether he was suffering
from gonorrhea which was contracted by his victim;(U.S. vs. Tan Teng, 23 Phil. 145 [1912])
to expel morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 [1917]) to have the
outline of his foot traced to determine its identity with bloody footprints; (U.S. vs. Salas, 25
Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to be photographed or measured, or
his garments or shoes removed or replaced, or to move his body to enable the foregoing
things to be done.(People vs. Otadora, 86 Phil. 244 [1950])28 (Emphasis supplied)

In the instant case, we fail to see how a urine sample could be material to the charge of
extortion. x x x

xxx

In the Gutang et al. case, the Court clarified that "what the Constitution prohibits is the
use of physical or moral compulsion to extort communication from the accused, but not an
inclusion of his body in evidence, when it may be material." x x x

We emphasize that the circumstances in Gutang are clearly different from the
circumstances of petitioner in the instant case. First, Gutang was arrested in relation to a drug
case. Second, he volunteered to give his urine. Third, there were other pieces of evidence that
point to his culpability for the crimes charged. In the present case, though, petitioner was arrested
for extortion; he resisted having his urine sample taken; and finally, his urine sample was the only
available evidence that was used as basis for his conviction for the use of illegal drugs.

The drug test was a violation of petitioner’s right to privacy and right against self-
incrimination.

xxx

107 | P a g e
 x x x We cannot condone drug testing of all arrested persons regardless of the crime or
offense for which the arrest is being made. (Dela Cruz v. People, G.R. No. 200748, July 23, 2014)

RIGHT TO BAIL

Bail protects the right of the accused to due process and to be presumed
innocent

In all criminal prosecutions, the accused shall be presumed innocent until the contrary is
proved. The presumption of innocence is rooted in the guarantee of due process, and is
safeguarded by the constitutional right to be released on bail, and further binds the court to wait
until after trial to impose any punishment on the accused.

It is worthy to note that bail is not granted to prevent the accused from committing
additional crimes. The purpose of bail is to guarantee the appearance of the accused at the trial,
or whenever so required by the trial court. The amount of bail should be high enough to assure
the presence of the accused when so required, but it should be no higher than is reasonably
calculated to fulfill this purpose. Thus, bail acts as a reconciling mechanism to accommodate both
the accused’s interest in his provisional liberty before or during the trial, and the society’s interest
in assuring the accused’s presence at trial. (Enrile v. Sandiganbayan, G.R. No. 213847, August
18, 2015)

The general rule is, therefore, that any person, before being convicted of any
criminal offense, shall be bailable, unless he is charged with a capital offense, or with
an offense punishable with reclusion perpetua or life imprisonment, and the evidence
of his guilt is strong.

The right to bail is expressly afforded by Section 13, Article III (Bill of Rights) of the
Constitution, viz.:

x x x All persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by law. The right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not
be required.

This constitutional provision is repeated in Section 7, Rule 114 of the Rules of Court, xxx.

The general rule is, therefore, that any person, before being convicted of any criminal
offense, shall be bailable, unless he is charged with a capital offense, or with an offense punishable
with reclusion perpetua or life imprisonment, and the evidence of his guilt is strong. Hence, from
the moment he is placed under arrest, or is detained or restrained by the officers of the law, he
can claim the guarantee of his provisional liberty under the Bill of Rights, and he retains his right
to bail unless he is charged with a capital offense, or with an offense punishable with reclusion
perpetua or life imprisonment, and the evidence of his guilt is strong. Once it has been established
that the evidence of guilt is strong, no right to bail shall be recognized.

As a result, all criminal cases within the competence of the Metropolitan Trial Court,
Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court are
bailable as matter of right because these courts have no jurisdiction to try capital offenses, or
offenses punishable with reclusion perpetua or life imprisonment. Likewise, bail is a matter of
right prior to conviction by the Regional Trial Court (RTC) for any offense not punishable by
death, reclusion perpetua, or life imprisonment, or even prior to conviction for an offense
punishable by death, reclusion perpetua, or life imprisonment when evidence of guilt is not
strong.

On the other hand, the granting of bail is discretionary: (1) upon conviction by the RTC of
an offense not punishable by death, reclusion perpetua or life imprisonment; or (2) if the RTC
has imposed a penalty of imprisonment exceeding six years, provided none of the circumstances
enumerated under paragraph 3 of Section 5, Rule 114 is present, xxxx.

For purposes of admission to bail, the determination of whether or not evidence of guilt is
strong in criminal cases involving capital offenses, or offenses punishable with reclusion perpetua
or life imprisonment lies within the discretion of the trial court. But, as the Court has held in
108 | P a g e
Concerned Citizens v. Elma, “such discretion may be exercised only after the hearing called to
ascertain the degree of guilt of the accused for the purpose of whether or not he should be granted
provisional liberty.” It is axiomatic, therefore, that bail cannot be allowed when its grant is a
matter of discretion on the part of the trial court unless there has been a hearing with notice to
the Prosecution. (Enrile v. Sandiganbayan, G.R. No. 213847, August 18, 2015)

Bail for the provisional liberty of the accused, regardless of the crime charged,
should be allowed independently of the merits of the charge, provided his continued
incarceration is clearly shown to be injurious to his health or to endanger his life. The
objective of bail is to ensure the appearance of the accused during the trial.

We first note that Enrile has averred in his Motion to Fix Bail the presence of two
mitigating circumstances that should be appreciated in his favor, namely: that he was already over
70 years at the time of the alleged commission of the offense, and that he voluntarily surrendered.

Nonetheless, in now granting Enrile’s petition for certiorari, the Court is guided by the
earlier mentioned principal purpose of bail, which is to guarantee the appearance of the
accused at the trial, or whenever so required by the court. The Court is further mindful
of the Philippines’ responsibility in the international community arising from the national
commitment under the Universal Declaration of Human Rights to:

x x x uphold the fundamental human rights as well as value the worth and dignity of every
person. This commitment is enshrined in Section II, Article II of our Constitution which
provides: “The State values the dignity of every human person and guarantees full respect
for human rights.” The Philippines, therefore, has the responsibility of
protecting and promoting the right of every person to liberty and due process,
ensuring that those detained or arrested can participate in the proceedings
before a court, to enable it to decide without delay on the legality of the
detention and order their release if justified. In other words, the Philippine
authorities are under obligation to make available to every person under
detention such remedies which safeguard their fundamental right to liberty.
These remedies include the right to be admitted to bail.

This national commitment to uphold the fundamental human rights as well as value the
worth and dignity of every person has authorized the grant of bail not only to those charged in
criminal proceedings but also to extraditees upon a clear and convincing showing: (1) that the
detainee will not be a flight risk or a danger to the community; and (2) that there
exist special, humanitarian and compelling circumstances.

In our view, his social and political standing and his having immediately surrendered to
the authorities upon his being charged in court indicate that the risk of his flight or escape from
this jurisdiction is highly unlikely. His personal disposition from the onset of his indictment for
plunder, formal or otherwise, has demonstrated his utter respect for the legal processes of this
country. We also do not ignore that at an earlier time many years ago when he had been charged
with rebellion with murder and multiple frustrated murder, he already evinced a similar personal
disposition of respect for the legal processes, and was granted bail during the pendency of his trial
because he was not seen as a flight risk. With his solid reputation in both his public and his private
lives, his long years of public service, and history’s judgment of him being at stake, he should be
granted bail.

The currently fragile state of Enrile’s health presents another compelling justification for
his admission to bail, but which the Sandiganbayan did not recognize.

xxxx

Based on foregoing, there is no question at all that Enrile’s advanced age and ill health
required special medical attention.

xxxx

Bail for the provisional liberty of the accused, regardless of the crime charged, should be
allowed independently of the merits of the charge, provided his continued incarceration is clearly
shown to be injurious to his health or to endanger his life. Indeed, denying him bail despite
imperiling his health and life would not serve the true objective of preventive incarceration during
the trial.

109 | P a g e
 Granting bail to Enrile on the foregoing reasons is not unprecedented. The Court has
already held in Dela Rama v. The People’s Court:

x x x This court, in disposing of the first petition for certiorari, held the following:

x x x [U]nless allowance of bail is forbidden by law in the particular case, the

illness of the prisoner, independently of the merits of the case, is a
circumstance, and the humanity of the law makes it a consideration which
should, regardless of the charge and the stage of the proceeding, influence the
court to exercise its discretion to admit the prisoner to bail; x x x

xxxx

It is relevant to observe that granting provisional liberty to Enrile will then enable him to
have his medical condition be properly addressed and better attended to by competent physicians
in the hospitals of his choice. This will not only aid in his adequate preparation of his defense but,
more importantly, will guarantee his appearance in court for the trial.

xxx

Accordingly, we conclude that the Sandiganbayan arbitrarily ignored the objective of bail
to ensure the appearance of the accused during the trial; and unwarrantedly disregarded the clear
showing of the fragile health and advanced age of Enrile. As such, the Sandiganbayan gravely
abused its discretion in denying Enrile’s Motion To Fix Bail. (Enrile v. Sandiganbayan, G.R. No.
213847, August 18, 2015)

DOUBLE JEOPARDY

The first jeopardy attaches only (a) after a valid indictment; (b) before a
competent court; (c) after arraignment; (d) when a valid plea has been entered; and
(e) when the accused was acquitted or convicted, or the case was dismissed or
otherwise terminated without his express consent. Since the preliminary
investigation stage is not part of the trial, the dismissal of a case during preliminary
investigation would not put the accused in danger of double jeopardy in the event of
a re-investigation or the filing of a similar case.

[F]or a claim of double jeopardy to prosper, petitioner has to prove that a first jeopardy
has attached prior to the second. As stated in Braza v. Sandiganbayan, "[t]he first jeopardy
attaches only (a) after a valid indictment; (b) before a competent court; (c) after arraignment; (d)
when a valid plea has been entered; and (e) when the accused was acquitted or convicted, or the
case was dismissed or otherwise terminated without his express consent." In this case, the
complaint before the Office of the Deputy Ombudsman for the Military was dismissed as early as
the preliminary investigation stage, thus, there was as yet, no indictment to speak of. No
complaint or Information has been brought before a competent court. Hence, none of the
aforementioned events has transpired for the first jeopardy to have attached.

In Vincoy v. Court of Appeals, which is closely analogous to the present case, the private
complainant therein initially filed a complaint with the Office of the City Prosecutor of Pasay City,
but said office dismissed the complaint. Private complainant then re-filed the complaint with the
Office of the City Prosecutor of Pasig City. The Office of the Prosecutor of Pasig City found
probable cause and filed the Information against the accused therein. In said case, the Court
categorically held that:

The dismissal of a similar complaint x x x filed by [private complainant] before the

City Prosecutor's Office of Pasay City will not exculpate the petitioner. The case cannot bar
petitioner's prosecution. It is settled that the dismissal of a case during its preliminary
investigation does not constitute double jeopardy since a preliminary investigation is not
part of the trial and is not the occasion for the full and exhaustive display of the parties'
evidence but only such as may engender a well-grounded belief that an offense has been
committed and accused is probably guilty thereof. For this reason, it cannot be considered
equivalent to a judicial pronouncement of acquital.

The fore going ruling was reiterated in Trinidad v. Office of the Ombudsman, where the
Court has categorically ruled that since the preliminary investigation stage is not part of the trial,
the dismissal of a case during preliminary investigation would not put the accused in danger of
double jeopardy in the event of a re-investigation or the filing of a similar case. An investigating
110 | P a g e
body is not bound by the findings or resolution of another such office, tribunal or agency which
may have had before it a different or incomplete set of evidence than what had been presented
during the previous investigation. Therefore, petitioner's indictment pursuant to the findings of
the Office of the City Prosecutor, and his eventual conviction for the crime of grave threats, has
not placed him in double jeopardy. (Jamaca v. People, G.R. No. 183681, July 27, 2015)

If the accused were never arraigned in lower court, and the criminal case was
dismissed upon the order of the Supreme Court, a first jeopardy never attached.

Double jeopardy only applies when: (1) a first jeopardy attached; (2) it has been validly
terminated; and (3) a second jeopardy is for the same offense as in the first.

A first jeopardy attaches only after the accused has been acquitted or convicted, or the case
has been dismissed or otherwise terminated without his express consent, by a competent court in
a valid indictment for which the accused has entered a valid plea during arraignment.

To recall, on 12 May 2006, an Information for the crime of rebellion, as defined and
penalized under Article 134 in relation to Article 135 of the Revised Penal Code, docketed as
Criminal Case No. 06-944 was filed before the RTC Makati against petitioners and several others.

However, petitioners were never arraigned in Criminal Case No. 06-944. Even before the
indictment for rebellion was filed before the RTC Makati, petitioners Ocampo, Echanis and
Ladlad had already filed a petition before this Court to seek the nullification of the Orders of the
DOJ denying their motion for the inhibition of the members of the prosecution panel due to lack
of impartiality and independence. When the indictment was filed, petitioners Ocampo, Echanis
and Ladlad filed supplemental petitions to enjoin the prosecution of Criminal Case No. 06-944.
We eventually ordered the dismissal of the rebellion case. It is clear then that a first jeopardy never
had a chance to attach. (Ocampo v. Abando, G.R. No. 176830, February 11, 2014)

The protection against double jeopardy may be invoked only for the same
offense or identical offenses. Where two different laws (or articles of the same code)
defines two crimes, prior jeopardy as to one of them is no obstacle to a prosecution
of the other, although both offenses arise from the same fact, if each crime involves
some important act which is not an essential element of the other.

Section 730 of Rule 117 lays down the requisites in order that the defense of double
jeopardy may prosper. There is double jeopardy when the following requisites are present: (1) a
first jeopardy attached prior to the second; (2) the first jeopardy has been validly terminated; and
(3) a second jeopardy is for the same offense as in the first. As to the first requisite, the first
jeopardy attaches only (a) after a valid indictment; (b) before a competent court; (c) after
arraignment; (d) when a valid plea has been entered; and (e) when the accused was acquitted or
convicted, or the case was dismissed or otherwise terminated without his express consent. In this
case, there is no dispute that the first and second requisites of double jeopardy are present in view
of the MeTC Resolution dated August 13, 2012 which granted petitioner's demurrer to evidence
and acquitted her in a criminal case for falsification of private document in Criminal Case No.
370119-20-CR. Petitioner's argument dwells on whether the third requisite of double jeopardy —
a second jeopardy is for the same offense as in the first — is present. x x x

Thus, the remaining question to be resolved is whether the offense charged in the
information for Section 46 of RA 6938 necessarily includes or is necessarily included in a crime
for falsification of private document under Article 172 of the Revised Penal Code, as amended
(RPC). The test to determine whether an offense necessarily includes or is necessarily included in
the other is provided under Section 5, Rule 120 of the Rules of Court:
An offense charged necessarily includes the offense proved when some of the
essential elements or ingredients of the former, as alleged in the complaint or information,
constitute the latter. And an offense charged is necessarily included in the offense proved,
when the essential ingredients of the former constitute or form part of those constituting the
latter.

xxx

Verily, there is nothing common or similar between the essential elements of the crimes
of falsification of private document under Article 172 (2) of the RPC and that of violation of Section
46 of RA 6938, as alleged in the Informations filed against petitioner. As neither of the said crimes
can be said to necessarily include or is necessarily included in the other, the third requisite for

111 | P a g e
double jeopardy to attach—a second jeopardy is for the same offense as in the first—is, therefore,
absent. Not only are their elements different, they also have a distinct nature, i.e., the former is
malum in se, as what makes it a felony is criminal intent on the part of the offender, while the
latter is malum prohibitum, as what makes it a crime is the special law enacting it.

Moreover, in People v. Doriguez, the Court held:

It is a cardinal rule that the protection against double jeopardy may be invoked only for
the same offense or identical offenses. A simple act may offend against two (or more) entirely
distinct and unrelated provisions of law, and if one provision requires proof of an additional fact
or element which the other does not, an acquittal or conviction or a dismissal of the information
under one does not bar prosecution under the other. Phrased else wise, where two different laws
(or articles of the same code) defines two crimes, prior jeopardy as to one of them is no obstacle
to a prosecution of the other, although both offenses arise from the same fact, if each crime
involves some important act which is not an essential element of the other.

Since the Informations filed against petitioner were for separate and distinct offenses as
discussed above—the first against Article 172 (2) of the Revised Penal Code and the second against
Section 46 of the Cooperative Code (RA 6938)—one cannot be pleaded as a bar to the other under
the rule on double jeopardy. Besides, it is basic in criminal procedure that an accused may be
charged with as many crimes as defined in our penal laws even if these arose from one incident.
Thus, where a single act is directed against one person but said act constitutes a violation of two
or more entirely distinct and unrelated provisions of law, or by a special law and the Revised Penal
Code, as in this case, the prosecution against one is not an obstacle to the prosecution of the other.
(Assistio v. People, G.R. No. 200465, April 20, 2015)

The provisional dismissal of the case does not operate as an acquittal since its
dismissal is made with the express consent of the accused; thus, double jeopardy
does not attach.

The proscription against double jeopardy presupposes that an accused has been previously
charged with an offense, and the case against him is terminated either by his acquittal or
conviction, or dismissed in any other manner without his consent. As a general rule, the following
requisites must be present for double jeopardy to attach: (1) a valid indictment, (2) before a court
of competent jurisdiction, (3) the arraignment of the accused, (4) a valid plea entered by him, and
(5) the acquittal or conviction of the accused, or the dismissal or termination of the case against
him without his express consent. However, there are two (2) exceptions to the foregoing rule, and
double jeopardy may attach even if the dismissal of the case was with the consent of the accused:
first, when there is insufficiency of evidence to support the charge against him; and second, where
there has been an unreasonable delay in the proceedings, in violation of the accused’s right to
speedy trial.

In the instant case, while the first four requisites are present, the last requisite is lacking,
considering that here the dismissal was merely provisional and it was done with the express
consent of the accused-petitioner. Petitioner is not in danger of being twice put in jeopardy with
the reopening of the case against her as it is clear that the case was only provisionally dismissed
by the trial court. The requirement that the dismissal of the case must be without the consent of
the accused is not present in this case. Neither does the case fall under any of the aforementioned
exceptions because, in fact, the prosecution had failed to continue the presentation of evidence
due to the absence of the witnesses, thus, the fact of insufficiency of evidence cannot be
established. Likewise, we find no unreasonable delay in the proceedings that would be
tantamount to violation of the accused's right to speedy trial. (Saldariega v. Panganiban, G.R.
Nos. 211933 & 211960, April 15, 2015)

RIGHT TO CONFRONTATION

Preliminary investigation is not a part of trial and it is only in a trial where an

accused can demand the full exercise of his rights, such as the right to confront and
cross-examine his accusers to establish his innocence.

Moreover, a person under preliminary investigation, as Sen. Estrada is in the present case
when he filed his Request, is not yet an accused person, and hence cannot demand the full exercise
of the rights of an accused person:

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 A finding of probable cause needs only to rest on evidence showing that more likely than
not a crime has been committed and was committed by the suspects. x x x A finding of probable
cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of
probable cause, we also hold that the DOJ Panel did not gravely abuse its discretion in refusing to
call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory
questions is addressed to the sound discretion of the investigator and the investigator alone. If the
evidence on hand already yields a probable cause, the investigator need not hold a clarificatory
hearing. To repeat, probable cause merely implies probability of guilt and should be determined
in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where
an accused can demand the full exercise of his rights, such as the right to confront and cross-
examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly
adjudged that enough evidence had been adduced to establish probable cause and clarificatory
hearing was unnecessary.

x x x [T]he right to a preliminary investigation is merely a statutory right, not part of the
"fundamental and essential requirements" of due process as prescribed in Ang Tibay and
amplified in GSIS. Thus, a preliminary investigation can be taken away by legislation. The
constitutional right of an accused to confront the witnesses against him does not apply in
preliminary investigations; nor will the absence of a preliminary investigation be an infringement
of his right to confront the witnesses against him. A preliminary investigation may be done away
with entirely without infringing the constitutional right of an accused under the due process
clause to a fair trial. (Estrada v. Office of the Ombudsman, G.R. Nos. 212140-41, January 21,
2015)

RIGHT TO INFORMATION

The people’s constitutional right to information is intertwined with the

government’s constitutional duty of full public disclosure of all transactions involving
public interest. The people have the right to access the papers and documents relating
to the company profile and legal capacity of the winning bidder for a government
project.

The people’s right to information is provided in Section 7, Article III of the Constitution,
which reads:
Sec. 7. The right of the people to information on matters of public concern shall
be recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen, subject to such limitations as
may be provided by law. (Underscoring supplied.)

The people’s constitutional right to information is intertwined with the government’s

constitutional duty of full public disclosure of all transactions involving public interest. Section
28, Article II of the Constitution declares the State policy of full transparency in all transactions
involving public interest, to wit:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest. (Italics supplied.)

The foregoing constitutional provisions seek to promote transparency in policy-making

and in the operations of the government, as well as provide the people sufficient information to
exercise effectively other constitutional rights. They are also essential to hold public officials "at
all times x xx accountable to the people," for unless citizens have the proper information, they
cannot hold public officials accountable for anything. Armed with the right information, citizens
can participate in public discussions leading to the formulation of government policies and their
effective implementation. An informed citizenry is essential to the existence and proper
functioning of any democracy.

xxx

In Chavez v. Public Estates Authority involving the execution of an Amended Joint

Venture Agreement on the disposition of reclaimed lands without public bidding, the Court held:

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 “Information, however, on on-going evaluation or review of bids or proposals being
undertaken by the bidding or review committee is not immediately accessible under the right to
information. While the evaluation or review is still on-going, there are no "official acts,
transactions, or decisions" on the bids or proposals. However, once the committee makes its
official recommendation, there arises a "definite proposition" on the part of the government. From
this moment, the public’s right to information attaches, and any citizen can access all the non-
proprietary information leading to such definite proposition.” x x x

Chavez v. Public Estates Authority thus laid down the rule that the constitutional right to
information includes official information on on-going negotiations before a final contract. The
information, however, must constitute definite propositions by the government and should not
cover recognized exceptions like privileged information, military and diplomatic secrets and
similar matters affecting national security and public order. In addition, Congress has prescribed
other limitations on the right to information in several legislations.

In this case, petitioners’ first letter dated April 20, 2010 requested for documents such as
Terms of Reference and proposed bids submitted by the bidders. At that time, the bids were yet
to be submitted at the bidding scheduled on April 28, 2010. It is also to be noted that PSALM’s
website carried news and updates on the sale of AHEPP, providing important information on
bidding activities and clarifications regarding the terms and conditions of the Asset Purchase
Agreement (APA) to be signed by PSALM and the winning bidder (Buyer).

In Chavez v. National Housing Authority, the Court held that pending the enactment of
an enabling law, the release of information through postings in public bulletin boards and
government websites satisfies the constitutional requirement, thus:

xxx

The Court, however, distinguished the duty to disclose information from the duty to
permit access to information on matters of public concern under Sec. 7, Art. III of the
Constitution. Unlike the disclosure of information which is mandatory under the Constitution,
the other aspect of the people’s right to know requires a demand or request for one to gain access
to documents and paper of the particular agency. Moreover, the duty to disclose covers only
transactions involving public interest, while the duty to allow access has a broader scope of
information which embraces not only transactions involving public interest, but any matter
contained in official communications and public documents of the government agency. Such relief
must be granted to the party requesting access to official records, documents and papers relating
to official acts, transactions, and decisions that are relevant to a government contract.

Here, petitioners’ second letter dated May 14, 2010 specifically requested for detailed
information regarding the winning bidder, such as company profile, contact person or responsible
officer, office address and Philippine registration. But before PSALM could respond to the said
letter, petitioners filed the present suit on May 19, 2010. PSALM’s letter-reply dated May 21, 2010
advised petitioners that their letter-re quest was referred to the counsel of K-Water. We find such
action insufficient compliance with the constitutional requirement and inconsistent with the
policy under EPIRA to implement the privatization of NPC assets in an "open and transparent"
manner. PSALM’s evasive response to the request for information was unjustified because all
bidders were required to deliver documents such as company profile, names of authorized
officers/representatives, financial and technical experience.

Consequently, this relief must be granted to petitioners by directing PSALM to allow

petitioners access to the papers and documents relating to the company profile and legal capacity
of the winning bidder. (Initiatives For Dialogue And Empowerment Through Alternative Legal
Services, Inc. v. Power Sector Assets and Liabilities Management Corporation, G.R. No. 192088,
October 9, 2012)

Information on on-going evaluation or review of bids or proposals being

undertaken by the bidding or review committee is not immediately accessible under
the right to information. While the evaluation or review is still on-going, there are no
"official acts, transactions, or decisions" on the bids or proposals. However, once the
committee makes its official recommendation, there arises a "definite proposition" on
the part of the government. From this moment, the public's right to information
attaches. The constitutional right to information includes official information on on-
going negotiations before a final contract.

DFA insists that we determine whether the evidence sought to be subpoenaed is covered
by the deliberative process privilege. DFA contends that the RTC erred in holding that the
deliberative process privilege is no longer applicable in this case. According to the RTC, based on
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Chavez v. Public Estates Authority, "acts, transactions or decisions are privileged only before a
definite proposition is reached by the agency," and since, in this case, DFA not only made "a
definite proposition" but already entered into a contract then the evidence sought to be produced
is no longer privileged.

We have held in Chavez v. Public Estates Authority that:

Information, however, on on-going evaluation or review of bids or proposals being
undertaken by the bidding or review committee is not immediately accessible under the
right to information. While the evaluation or review is still on-going, there are no "official
acts, transactions, or decisions" on the bids or proposals. However, once the committee
makes its official recommendation, there arises a "definite proposition" on the part of the
government. From this moment, the public's right to information attaches, and any citizen
can access all the non-proprietary information leading to such definite proposition.

xxxx

The right to information, however, does not extend to matters recognized as

privileged information under the separation of powers. The right does not also apply to
information on military and diplomatic secrets, information affecting national security,
and information on investigations of crimes by law enforcement agencies before the
prosecution of the accused, which courts have long recognized as confidential. The right
may also be subject to other limitations that Congress may impose by law.

There is no claim by PEA that the information demanded by petitioner is privileged

information rooted in the separation of powers. The information does not cover
Presidential conversations, correspondences, or discussions during closed-door Cabinet
meetings which, like internal deliberations of the Supreme Court and other collegiate
courts, or executive sessions of either house of Congress, are recognized as confidential.
This kind of information cannot be pried open by a co-equal branch of government. A frank
exchange of exploratory ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the independence of decision-making
of those tasked to exercise Presidential, Legislative and Judicial power. This is not the
situation in the instant case.

We rule, therefore, that the constitutional right to information includes official

information on on-going negotiations before a final contract. The information, however,
must constitute definite propositions by the government and should not cover recognized
exceptions like privileged information, military and diplomatic secrets and similar matters
affecting national security and public order. Congress has also prescribed other limitations
on the right to information in several legislations. (Emphasis supplied)

(Department of Foreign Affairs v. BCA International, June 29, 2016, G.R. No. 210858)

Privileged information is outside the scope of the constitutional right to

information, just like military and diplomatic secrets and similar matters affecting
national security and public order. One such privileged information that is within the
exception of the right to information is the deliberative process privilege, involving
as it does the deliberative process of reaching a decision. Deliberative process
privilege protects from disclosure advisory opinions, recommendations, and
deliberations comprising part of a process by which governmental decisions and
policies are formulated.

Contrary to the RTC's ruling, there is nothing in our Chavez v. Public Estates Authority,
ruling which states that once a "definite proposition" is reached by an agency, the privileged
character of a document no longer exists. On the other hand, we hold that before a "definite
proposition" is reached by an agency, there are no "official acts, transactions, or decisions" yet
which can be accessed by the public under the right to information. Only when there is an official
recommendation can a "definite proposition" arise and, accordingly, the public's right to
information attaches. However, this right to information has certain limitations and does not
cover privileged information to protect the independence of decision-making by the government.

Chavez v. Public Estates Authority expressly and unequivocally states that the right to
information "should not cover recognized exceptions like privileged information, military and
diplomatic secrets and similar matters affecting national security and public order." Clearly,
Chavez v. Public Estates Authority, expressly mandates that "privileged information" should be
outside the scope of the constitutional right to information, just like military and diplomatic
secrets and similar matters affecting national security and public order. In these exceptional
cases, even the occurrence of a "definite proposition" will not give rise to the public's right to
information.

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 Deliberative process privilege is one kind of privileged information, which is within the
exceptions of the constitutional right to information. In In Re: Production of Court Records and
Documents and the Attendance of Court Officials and Employees as Witnesses, we held that:
Court deliberations are traditionally recognized as privileged communication.
Section 2, Rule 10 of the IRSC provides:

Section 2. Confidentiality of court sessions. - Court sessions are executive in

character, with only the Members of the Court present. Court deliberations are confidential
and shall not be disclosed to outside parties, except as may be provided herein or as
authorized by the Court.

Justice Abad discussed the rationale for the rule in his concurring opinion to the
Court Resolution in Arroyo v. De Lima (TRO on Watch List Order case): the rules on
confidentiality will enable the Members of the Court to "freely discuss the issues without
fear of criticism for holding unpopular positions" or fear of humiliation for one's
comments. The privilege against disclosure of these kinds of information/communication
is known as deliberative process privilege, involving as it does the deliberative process of
reaching a decision. xxxx

The privilege is not exclusive to the Judiciary. We have in passing recognized the
claim of this privilege by the two other branches of government in Chavez v. Public Estates
Authority (speaking through J. Carpio) when the Court declared that -

[t]he information x x x like internal deliberations of the Supreme Court and other
collegiate courts, or executive sessions of either house of Congress, are recognized as
confidential. This kind of information cannot be pried open by a co-equal branch of
government. A frank exchange of exploratory ideas and assessments, free from the glare of
publicity and pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and Judicial power.
(Emphasis supplied)

In Akbayan v. Aquino, we adopted the ruling of the U.S. Supreme Court in NLRB v. Sears,
Roebuck & Co, which stated that the deliberative process privilege protects from disclosure
"advisory opinions, recommendations, and deliberations comprising part of a process by which
governmental decisions and policies are formulated." We explained that "[w]ritten advice from a
variety of individuals is an important element of the government's decision-making process and
that the interchange of advice could be stifled if courts forced the government to disclose those
recommendations"; thus, the privilege is intended "to prevent the 'chilling' of deliberative
communications."

The privileged character of the information does not end when an agency has adopted a
definite proposition or when a contract has been perfected or consummated; otherwise, the
purpose of the privilege will be defeated.

The deliberative process privilege applies if its purpose is served, that is, "to protect the
frank exchange of ideas and opinions critical to the government's decision[-]making process
where disclosure would discourage such discussion in the future." xxxx In Gwich 'in Steering
Comm. v. Office of the Governor, the Supreme Court of Alaska held that communications have
not lost the privilege even when the decision that the documents preceded is finally made.
(Department of Foreign Affairs v. BCA International, June 29, 2016, G.R. No. 210858)

Two fundamental requirements for the deliberative process privilege to be

invoked: First, the communication must be pre-decisional, i.e., "antecedent to the
adoption of an agency policy." Second, the communication must be deliberative, i.e.,
"a direct part of the deliberative process in that it makes recommendations or
expresses opinions on legal or policy matters." The deliberative process privilege
typically covers recommendations, advisory opinions, draft documents, proposals,
suggestions, and other subjective documents that reflect the personal opinions of the
writer rather than the policy of the agency.

Traditionally, U.S. courts have established two fundamental requirements, both of which
must be met, for the deliberative process privilege to be invoked. First, the communication must
be predecisional, i.e., "antecedent to the adoption of an agency policy." Second, the
communication must be deliberative, i.e., "a direct part of the deliberative process in that it makes
recommendations or expresses opinions on legal or policy matters." It must reflect the "give-and-
take of the consultative process." xxxx

Finally, in addition to assessing whether the material is predecisional and deliberative,

and in order to determine if disclosure of the material is likely to adversely affect the purposes of
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the privilege, courts inquire whether "the document is so candid or personal in nature that public
disclosure is likely in the future to stifle honest and frank communication within the agency." As
a consequence, the deliberative process privilege typically covers recommendations, advisory
opinions, draft documents, proposals, suggestions, and other subjective documents that reflect
the personal opinions of the writer rather than the policy of the agency.

Thus, "[t]he deliberative process privilege exempts materials that are 'predecisional' and
'deliberative,' but requires disclosure of policy statements and final opinions 'that have the force
of law or explain actions that an agency has already taken."’

xxx In Strang v. Collyer, the U.S. District Court for the District of Columbia held that the
meeting notes that reflect the exchange of opinions between agency personnel or divisions of
agency are covered by the deliberative process privilege because they "reflect the agency's group
thinking in the process of working out its policy" and are part of the deliberative process in
arriving at the final position. xxx

This Court applied the deliberative process privilege in In Re: Production of Court Records
and Documents and the Attendance of Court Officials and Employees as Wltnesses and found that
court records which are "predecisional" and "deliberative" in nature - in particular, documents
and other communications which are part of or related to the deliberative process, i.e., notes,
drafts, research papers, internal discussions, internal memoranda, records of internal
deliberations, and similar papers - are protected and cannot be the subject of a subpoena if judicial
privilege is to be preserved. We further held that this privilege is not exclusive to the Judiciary
and cited our ruling in Chavez v. Public Estates Authority.

The deliberative process privilege can also be invoked in arbitration proceedings under RA
9285. (Department of Foreign Affairs v. BCA International, June 29, 2016, G.R. No. 210858)

The reasons or bases for the deliberative process privilege: first, the privilege
protects candid discussions within an agency; second, it prevents public confusion
from premature disclosure of agency opinions before the agency establishes final
policy; and third, it protects the integrity of an agency's decision; the public should
not judge officials based on information they considered prior to issuing their final
decisions.

"Deliberative process privilege contains three policy bases: first, the privilege protects
candid discussions within an agency; second, it prevents public confusion from premature
disclosure of agency opinions before the agency establishes final policy; and third, it protects the
integrity of an agency's decision; the public should not judge officials based on information they
considered prior to issuing their final decisions." Stated differently, the privilege serves "to assure
that subordinates within an agency will feel free to provide the decision[-]maker with their
uninhibited opinions and recommendations without fear of later being subject to public ridicule
or criticism; to protect against premature disclosure of proposed policies before they have been
finally formulated or adopted; and to protect against confusing the issues and misleading the
public by dissemination of documents suggesting reasons and rationales for a course of action
which were not in fact the ultimate reasons for the agency's action." (Department of Foreign
Affairs v. BCA International, June 29, 2016, G.R. No. 210858)

RIGHT AGAINST CRUEL AND DEGRADINIG PUNISHMENT

The prohibition against cruel, degrading or inhuman punishment extends only

to situations of extreme corporeal or psychological punishment that strips the
individual of his humanity. It applies only to a punishment that is flagrantly and
plainly oppressive and wholly disproportionate to the nature of the offense as to
shock the moral sense of the community. Perpetual disqualification from public office
for the repeated failure to file the SOCE and does not constitute cruel, degrading and
inhuman punishment.

In a final attempt to evade liability, the petitioner describes the penalty of perpetual
disqualification as excessive, harsh and cruel, and, consequently, unconstitutional pursuant to
Section 19(1), Article III of the 1987 Constitution, which pertinently provides:

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 Section 19. (1) Excessive fines shall not be imposed, nor cruel, degrading
or inhuman punishment inflicted. x x x .

He contends that the failure to file the SOCE is an offense far less grave than the serious
crimes under the Revised Penal Code and the grave offenses under the civil service laws.
Accordingly, equating the non-filing of the SOCE with the latter offenses is irrational and
unwarranted.

The petitioner's contention does not impress.

We have always deferred to the wisdom of Congress in enacting a law. We can only enforce
a statute like R.A. No. 7166 unless there is a clear showing that it contravenes the Constitution.
The petitioner has not demonstrated herein how R.A. No. 7166 could have transgressed the
Constitution. On the contrary, a review of R.A. No. 7166 convincingly indicates that perpetual
disqualification from public office has been prescribed as a penalty for the repeated failure to file
the SOCE and does not constitute cruel, degrading and inhuman punishment.

We have already settled that the constitutional proscription under the Bill of Rights
extends only to situations of extreme corporeal or psychological punishment that strips the
individual of his humanity. The proscription is aimed more at the form or character of the
punishment rather than at its severity, as the Court has elucidated in Lim v. People, to wit:

Settled is the rule that a punishment authorized by statute is not cruel,

degrading or disproportionate to the nature of the offense unless it is flagrantly
and plainly oppressive and wholly disproportionate to the nature of the offense as
to shock the moral sense of the community. It takes more than merely being harsh,
excessive, out of proportion or severe for a penalty to be obnoxious to the
Constitution. Based on this principle, the Court has consistently overruled
contentions of the defense that the penalty of fine or imprisonment authorized by
the statute involved is cruel and degrading.

In People vs. Tongko, this Court held that the prohibition against cruel and
unusual punishment is generally aimed at the form or character of the punishment
rather than its severity in respect of its duration or amount, and applies to
punishments which never existed in America or which public sentiment regards as
cruel or obsolete. This refers, for instance, to those inflicted at the whipping post
or in the pillory, to burning at the stake, breaking on the wheel, disemboweling and
the like. The fact that the penalty is severe provides insufficient basis to declare a
law unconstitutional and does not, by that circumstance alone, make it cruel and
inhuman. (Bold underscoring is supplied for emphasis)

Moreover, that Congress has deemed fit to impose the penalty of perpetual disqualification
on candidates who repeatedly failed to file their SOCEs cannot be the subject of judicial inquiry.
Congress has the absolute discretion to penalize by law with perpetual disqualification from
holding public office in addition to administrative fines the seekers of public office who fail more
than once to file their SOCEs. Such penalty is intended to underscore the need to file the SOCE as
another means of ensuring the sanctity of the electoral process. (Maturan v. Commission on
Elections, G.R. No. 227155, March 28, 2017)

ACADEMIC FREEDOM

Academic freedom gives institutions of higher learning the right to impose

disciplinary sanctions, which includes the power to dismiss or expel students who
violate disciplinary rules. The power to discipline students is subsumed in the
academic freedom to determine what may be taught, how it shall be taught and who
may be admitted to study.

Respondents likewise contend that, as an academic institution, the PMA has the inherent
right to promulgate reasonable norms, rules and regulations that it may deem necessary for the
maintenance of school discipline, which is specifically mandated by Section 3 (2), Article XIV of
the 1987 Constitution. As the premiere military educational institution of the AFP in accordance
with Section 30, Article III of C.A. No. 1 and Sections 58 and 59, Chapter 9, Subtitle II, Title VIII,
Book IV of E.O. No. 292 ("Administrative Code of 1987"), the PMA is an institution that enjoys
academic freedom guaranteed by Section 5 (2), Article XIV of the 1987 Constitution. In Miriam
College Foundation, Inc. v. Court of Appeals, it was held that concomitant with such freedom is
the right and duty to instill and impose discipline upon its students. Also, consistent with lsabelo,
Jr. v. Perpetual Help College of Rizal, Inc. and Ateneo de Manila University v. Capulong, the

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PMA has the freedom on who to admit (and, conversely, to expel) given the high degree of
discipline and honor expected from its students who are to form part of the AFP.

xxx

In their Reply, petitioners counter that, as shown in lsabelo, Jr. and Ateneo, academic
freedom is not absolute and cannot be exercised in blatant disregard of the right to due process
and the 1987 Constitution. x x x

While both parties have valid points to consider, the arguments of respondents are more
in line with the facts of this case. x x x

xxx

Academic freedom or, to be precise, the institutional autonomy of universities and

institutions of higher learning, has been enshrined in our Constitutions of 1935, 1973, and 1987.
In Garcia, this Court espoused the concurring opinion of U.S. Supreme Court Justice Felix
Frankfurter in Sweezy v. New Hampshire, which enumerated "the four essential freedoms" of a
university: To determine for itself on academic grounds (1) who may teach, (2) what may be
taught, (3) how it shall be taught, and (4) who may be admitted to study. An educational
institution has the power to adopt and enforce such rules as may be deemed expedient for its
government, this being incident to the very object of incorporation, and indispensable to the
successful management of the college. x x x

The schools' power to instill discipline in their students is subsumed in their academic
freedom and that "the establishment of rules governing university-student relations, particularly
those pertaining to student discipline, may be regarded as vital, not merely to the smooth and
efficient operation of the institution, but to its very survival." x x x In this regard, the Court has
always recognized the right of schools to impose disciplinary sanctions, which includes the power
to dismiss or expel, on students who violate disciplinary rules. In Miriam College Foundation,
Inc. v. Court of Appeals, this Court elucidated:
The right of the school to discipline its students is at once apparent in the third
freedom, i.e., "how it shall be taught." A school certainly cannot function in an atmosphere
of anarchy.

Thus, there can be no doubt that the establishment of an educational institution

requires rules and regulations necessary for the maintenance of an orderly educational
program and the creation of an educational environment conducive to learning. Such rules
and regulations are equally necessary for the protection of the students, faculty, and
property.

Moreover, the school has an interest in teaching the student discipline, a necessary,
if not indispensable, value in any field of learning. By instilling discipline, the school teaches
discipline. Accordingly, the right to discipline the student likewise finds basis in the freedom
"what to teach." Incidentally, the school not only has the right but the duty to develop
discipline in its students. The Constitution no less imposes such duty.

[All educational institutions] shall inculcate patriotism and nationalism, foster love
of humanity, respect for human rights, appreciation of the role of national heroes in the
historical development of the country, teach the rights and duties of citizenship, strengthen
ethical and spiritual values, develop moral character and personal discipline, encourage
critical and creative thinking, broaden scientific and technological knowledge, and promote
vocational efficiency.

In Angeles vs. Sison, we also said that discipline was a means for the school to carry
out its responsibility to help its students "grow and develop into mature, responsible,
effective and worthy citizens of the community."

Finally, nowhere in the above formulation is the right to discipline more evident than
in "who may be admitted to study." If a school has the freedom to determine whom to admit,
logic dictates that it also has the right to determine whom to exclude or expel, as well as upon
whom to impose lesser sanctions such as suspension and the withholding of graduation
privileges.

The power of the school to impose disciplinary measures extends even after graduation for
any act done by the student prior thereto. In University of the Phils. Board of Regents v. Court of
Appeals, We upheld the university's withdrawal of a doctorate degree already conferred on a
student who was found to have committed intellectual dishonesty in her dissertation. Thus:
Art. XIV, §5 (2) of the Constitution provides that "[a]cademic freedom shall be
enjoyed in all institutions of higher learning." This is nothing new. The 1935 Constitution
and the 1973 Constitution likewise provided for the academic freedom or, more precisely,
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 for the institutional autonomy of universities and institutions of higher learning. As pointed
out by this Court in Garcia v. Faculty Admission Committee, Loyola School of Theology,
it is a freedom granted to "institutions of higher learning" which is thus given "a wide
sphere of authority certainly extending to the choice of students." If such institution of
higher learning can decide who can and who cannot study in it, it certainly can also
determine on whom it can confer the honor and distinction of being its graduates.

Where it is shown that the conferment of an honor or distinction was obtained

through fraud, a university has the right to revoke or withdraw the honor or distinction it
has thus conferred. This freedom of a university does not terminate upon the "graduation"
of a student, as the Court of Appeals held. For it is precisely the "graduation" of such a
student that is in question. xxx

Wide indeed is the sphere of autonomy granted to institutions of higher learning,

xxx.

Under the U.P. Charter, the Board of Regents is the highest governing body of the
University of the Philippines. It has the power to confer degrees upon the recommendation
of the University Council. It follows that if the conferment of a degree is founded on error
or fraud, the Board of Regents is also empowered, subject to the observance of due process,
to withdraw what it has granted without violating a student's rights. An institution of higher
learning cannot be powerless if it discovers that an academic degree it has conferred is not
rightfully deserved. xxx It should be empowered, as an act of self-defense, to take measures
to protect itself from serious threats to its integrity.

xxx

x x x As the primary training and educational institution of the AFP, [PMA] certainly has
the right to invoke academic freedom in the enforcement of its internal rules and regulations,
which are the Honor Code and the Honor System in particular.

The Honor Code is a set of basic and fundamental ethical and moral principle. It is the
minimum standard for cadet behavior and serves as the guiding spirit behind each cadet's action.
It is the cadet's responsibility to maintain the highest standard of honor. (Cudia v. The
Superintendent of the Philippine Military Academy, G.R. No. 211362, February 24, 2015)

120 | P a g e
 POLITICAL & INTERNATIONAL LAW

Selected Recent Jurisprudence (2010-December 2017)1

By Atty. Alexis F. Medina2

PART III:

Administrative Law, The Law on Public Officers,

Local Government Law, Election Law,
International Law

ADMINISTRATIVE LAW

QUASI-LEGISLATIVE POWERS

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

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

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

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

Administrative regulations must comply with the requirements of prior

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

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

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

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

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

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

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

If administrative circulars would not affect the substantive rights of the

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

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

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

Under certain circumstances, the Legislature can delegate to executive

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

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

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

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

Administrative regulations cannot extend the law and amend a legislative

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

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

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

1. Its promulgation must be authorized by the Legislature;

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

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

4. It must be reasonable.

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

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

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

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

Prior opportunity to be heard is required before an administrative agency

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

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

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

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

It should be understandable that when an administrative rule is merely

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

3|Page
 xxx

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

QUASI-JUDICIAL POWERS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The essence of due process in administrative proceedings is the opportunity

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The essence of procedural due process is embodied in the basic

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Factual findings of administrative agencies are generally accorded respect

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

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

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

The doctrine of conclusiveness of administrative findings of fact is not

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

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

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

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

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

Court injunctions against Ombudsman investigations: The prohibition under

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

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

Section 14. Restrictions. – No writ of injunction shall be issued by any court to

delay an investigation being conducted by the Ombudsman under this Act, unless there
is a prima facie evidence that the subject matter of the investigation is outside the
jurisdiction of the Office of the Ombudsman.

No court shall hear any appeal or application for remedy against the decision or
findings of the Ombudsman, except the Supreme Court, on pure question of law.

xxxx

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

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

xxxx

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

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

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

xxxx

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

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

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

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

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

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

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

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

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

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

xxx

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Exceptions to the doctrine of primary jurisdiction

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

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

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

Requirements for forum-shopping and res judicata in administrative cases

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

xxxx

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

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

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

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

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

xxxx

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

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

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

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

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

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

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

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

THE LAW ON PUBLIC OFFICERS

CONDONATION DOCTRINE

The doctrine of condonation is bereft of legal bases. The concept of public

office is a public trust and the corollary requirement of accountability to the people
at all times, as mandated under the 1987 Constitution, are plainly inconsistent with
the idea that an elective local official’s administrative liability for a misconduct
committed during a prior term can be wiped off by the fact that he was elected to a
second term of office, or even another elective post. Election is not a mode of
condoning an administrative offense, and there is simply no constitutional or
statutory basis in our jurisdiction to support the condonation doctrine.

Generally speaking, condonation has been defined as “[a] victim’s express or implied
forgiveness of an offense, [especially] by treating the offender as if there had been no offense.”
The condonation doctrine – which connotes this same sense of complete extinguishment of
liability as will be herein elaborated upon – is not based on statutory law. It is a jurisprudential
creation that originated from the 1959 case of Pascual v. Hon. Provincial Board of Nueva Ecija,
(Pascual), which was therefore decided under the 1935 Constitution.

xxx

As there was no legal precedent on the issue at that time, the Court, in Pascual, resorted
to American authorities and xxxx proceeded to state that:

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

xxx

After the turbulent decades of Martial Law rule, the Filipino People have framed and
adopted the 1987 Constitution, which sets forth in the Declaration of Principles and State
Policies in Article II that “[t]he State shall maintain honesty and integrity in the public service
and take positive and effective measures against graft and corruption.” xxxx More significantly,
the 1987 Constitution strengthened and solidified what has been first proclaimed in the 1973
Constitution by commanding public officers to be accountable to the people at all times:

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

In Belgica, it was explained that:

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

The same mandate is found in the Revised Administrative Code under the section of the
Civil Service Commission, and also, in the Code of Conduct and Ethical Standards for Public
Officials and Employees.

For local elective officials like Binay, Jr., the grounds to discipline, suspend or remove
an elective local official from office are stated in Section 60 of Republic Act No. 7160,292
otherwise known as the “Local Government Code of 1991” (LGC), which was approved on
October 10 1991, and took effect on January 1, 1992: xxxx

Related to this provision is Section 40 (b) of the LGC which states that those removed
from office as a result of an administrative case shall be disqualified from running for any
elective local position: xxxx
16 | P a g e
 In the same sense, Section 52 (a) of the RRACCS provides that the penalty of dismissal
from service carries the accessory penalty of perpetual disqualification from holding public
office: xxx

In contrast, Section 66 (b) of the LGC states that the penalty of suspension shall not
exceed the unexpired term of the elective local official nor constitute a bar to his candidacy for
as long as he meets the qualifications required for the office. Note, however, that the provision
only pertains to the duration of the penalty and its effect on the official’s candidacy. Nothing
therein states that the administrative liability therefor is extinguished by the fact of re-election:
xxx

xxxx

Reading the 1987 Constitution together with the above-cited legal provisions now leads
this Court to the conclusion that the doctrine of condonation is actually bereft of legal bases.

To begin with, the concept of public office is a public trust and the corollary requirement
of accountability to the people at all times, as mandated under the 1987 Constitution, are plainly
inconsistent with the idea that an elective local official’s administrative liability for a misconduct
committed during a prior term can be wiped off by the fact that he was elected to a second term
of office, or even another elective post. Election is not a mode of condoning an administrative
offense, and there is simply no constitutional or statutory basis in our jurisdiction to support the
notion that an official elected for a different term is fully absolved of any administrative liability
arising from an offense done during a prior term. In this jurisdiction, liability arising from
administrative offenses may be condoned by the President in light of Section 19, Article VII of
the 1987 Constitution which was interpreted in Llamas v. Orbos to apply to administrative
offenses:

The Constitution does not distinguish between which cases executive

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

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

Also, it cannot be inferred from Section 60 of the LGC that the grounds for discipline
enumerated therein cannot anymore be invoked against an elective local official to hold him
administratively liable once he is re-elected to office. In fact, Section 40 (b) of the LGC precludes
condonation since in the first place, an elective local official who is meted with the penalty of
removal could not be re-elected to an elective local position due to a direct disqualification from
running for such post. In similar regard, Section 52 (a) of the RRACCS imposes a penalty of
perpetual disqualification from holding public office as an accessory to the penalty of dismissal
from service.

xxx

xxxx In this jurisdiction, there is, again, no legal basis to conclude that
election automatically implies condonation. Neither is there any legal basis to say
that every democratic and republican state has an inherent regime of condonation.
If condonation of an elective official’s administrative liability would perhaps, be allowed in this
jurisdiction, then the same should have been provided by law under our governing legal
mechanisms. xxxx

Equally infirm is Pascual’s proposition that the electorate, when reelecting a local
official, are assumed to have done so with knowledge of his life and character, and that they
disregarded or forgave his faults or misconduct, if he had been guilty of any. Suffice it to state
that no such presumption exists in any statute or procedural rule. Besides, it is contrary to
human experience that the electorate would have full knowledge of a public official’s misdeeds.
xxx At a conceptual level, condonation presupposes that the condoner has actual knowledge of
what is to be condoned. Thus, there could be no condonation of an act that is unknown.
17 | P a g e
 xxx

That being said, this Court simply finds no legal authority to sustain the condonation
doctrine in this jurisdiction. As can be seen from this discourse, it was a doctrine adopted from
one class of US rulings way back in 1959 and thus, out of touch from – and now rendered
obsolete by – the current legal regime. xxx

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

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

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

Hence, while the future may ultimately uncover a doctrine’s error, it should be, as a
general rule, recognized as “good law” prior to its abandonment. Consequently, the people’s
reliance thereupon should be respected.

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

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

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

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

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

In Topacio v. Ong, the Court pronounced that:

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

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

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

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

18 | P a g e
 DUAL POSITIONS AND DOUBLE COMPENSATION

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

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

xxx

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

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

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

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

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

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

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

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

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

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

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

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

xxx

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

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

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

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

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

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

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

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

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

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

xxx

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

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

Section 7. x x x

Unless otherwise allowed by law or the primary functions of his

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

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

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

xxxx

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

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

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

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

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

xxxx

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

xxx

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

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

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

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

xxx

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

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

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

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

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

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

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

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

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

MIDNIGHT APPOINTEES AND APPOINTMENT BAN

The prohibition against presidential appointments two months immediately

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

Two constitutional provisions are seemingly in conflict.

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

Section 15. Two months immediately before the next presidential elections and up
to the end of his term, a President or Acting President shall not make appointments, except
temporary appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety.

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

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

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

The Court agrees with the submission.

First. x x x

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

xxx

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

xxx

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

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

xxx

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

xxx

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

The constitutional prohibition on midnight appointments only applies to

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

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

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

immediately prior to the next presidential election." Midnight appointments are prohibited
under Article VII, Section 15 of the Constitution:
SECTION 15. Two months immediately before the next presidential elections and up to the
end of his term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public service or
endanger public safety.

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

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

However, the constitutional prohibition on midnight appointments only applies to

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

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

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

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

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

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

xxx

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

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

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

xxx

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

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

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

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

Marco's appointment was valid. x x x

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

DE FACTO OFFICER

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

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

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

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

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

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

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

NEXT-IN RANK RULE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PETITION FOR QUO WARRANTO

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

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

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

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

NEPOTISM

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

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

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

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

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

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

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

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

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

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

LIABILITY OF PUBLIC OFFICERS

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

and administratively liable for a wrongful doing.

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

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

Dismissal of a criminal action does not foreclose institution of an

administrative proceeding.

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

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

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

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

Lastly, we cannot sustain petitioners’ stance that the dismissal

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

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

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

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

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

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

xxxx

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MISCONDUCT

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

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

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

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

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

xxx

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

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

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

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

xxx

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

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

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

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

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

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

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

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

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

xxx

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

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

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

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

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

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

xxx

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

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

xxx

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

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

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

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

disciplinary action under R.A. No. 6713?

We also rule in the negative.

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

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

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

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

xxx

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

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

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

THE OMBUDSMAN

The power of investigation granted to the Ombudsman by the 1987

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

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

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

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

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

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

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

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

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

This power of investigation granted to the Ombudsman by the 1987

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

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

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

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

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

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

xxx

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

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

xxx

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

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

xxx

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

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

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

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

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

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

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

The Ombudsman has concurrent jurisdiction over administrative cases which

are within the jurisdiction of the regular courts or administrative agencies. In
administrative cases involving the concurrent jurisdiction of two or more
disciplining authorities, the body where the complaint is filed first, and which opts
to take cognizance of the case, acquires jurisdiction to the exclusion of other
tribunals exercising concurrent jurisdiction.

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

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

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

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

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission
of any public officer or employee, office or agency, when such act or omission appears to be illegal,
unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the

37 | P a g e
 Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from
any investigatory agency of Government, the investigation of such cases.

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

corresponding to salary grade 27 and higher.

Consequently, as we held in Office of the Ombudsman v. Rodriguez, any act or omission

of a public officer or employee occupying a salary grade lower than 27 is within the concurrent
jurisdiction of the Ombudsman and of the regular courts or other investigative agencies.

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

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

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

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

public official or employee that is not service-connected.

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

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

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

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

xxx

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

xxx

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

JURISDICTION OF THE CSC IN ADMINISTRATIVE CASES

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

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

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

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

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

xxx

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

xxx

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

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

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

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

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

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

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

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

39 | P a g e
 Except as otherwise provided by the Constitution or by law, the Civil Service
Commission shall have the final authority to pass upon the removal, separation and
suspension of all officers and employees in the civil service and upon all matters relating to
the conduct, discipline and efficiency of such officers and employees.

xxx

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

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

SUSPENSION AND BACK SALARIES

A public official should be automatically reinstated at the end of the 90-day

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

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

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

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

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

Preventive suspension pending investigation is not violative of the Constitution because

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

40 | P a g e
 There shall be no indefinite suspension pending investigation, whether the
respondent officials are presidential or nonpresidential appointees. It cannot be
validly argued that in the case of presidential appointees the preventive suspension
pending investigation can be indefinite. In the guise of a preventive suspension, the
official’s term of office could be shortened and he could, in effect, be removed
without a finding of a cause duly established after due hearing, in violation of the
Constitution.

Nonetheless, there shall be no indefinite suspension pending investigation, whether the

respondent officials are presidential or nonpresidential appointees. The law abhors indefinite
preventive suspension because the indefiniteness violates the constitutional guarantees under
the due process and equal protection clauses, as well as the right of public officers and
employees to security of tenure. The abhorrence of indefinite suspensions impelled the Court
in Gonzaga v. Sandiganbayan to delineate rules on preventive suspensions pending
investigation, viz.:

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

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

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

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

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

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

Conformably with the foregoing disquisitions, we hold that the CA correctly decreed that
Baculi should be paid his back salaries and other benefits for the entire time that he should have
been automatically reinstated at the rate owing to his position that he last received prior to his
preventive suspension on September 4, 1992. Such time corresponded to the period from

41 | P a g e
December 4, 1992 until June 25, 2003, but excluding the interval from March 12, 2001 until
December 31, 2001 when he was briefly reinstated. (Baculi v. Office of the President, March 8,
2017, G.R. No. 188681)

A presidential appointee comes under the disciplinary jurisdiction of the

President in line with the principle that the "power to remove is inherent in the
power to appoint."

DAR Secretary Ernesto D. Garilao brought charges against Baculi for gross dishonesty,
abuse of authority, grave misconduct and conduct prejudicial to the best interest of the service
based xxx. He was immediately placed under preventive suspension for 90 days (i.e., from
September 4 to December 3, 1992) as a consequence.

Eventually, DAR Secretary Garilao dismissed Baculi from the service based on the
findings and recommendations of Assistant Secretary Hector Soliman of the DAR Legal Affairs
Office.

The CSC affirmed the dismissal of Baculi with modification. It anchored its affirmance
on the vesting of disciplinary jurisdiction in the Department Secretaries, among others, as
provided in Section 47(2), Chapter 7, of Book V of the Administrative Code of 1987, viz.:

xxx

Whether or not Baculi belonged to the category of officers and employees under the DAR
Secretary's disciplinary jurisdiction was a question to be determined in conjunction with Section
38(a) of Presidential Decree No. 807 (Civil Service Decree), as follows:

xxxx

Section 38(a) of Presidential Decree No. 807 has drawn a definite distinction between
subordinate officers or employees who were presidential appointees, on the one hand, and
subordinate officers or employees who were non-presidential appointees, on the other. Without
a doubt, substantial distinctions that set apart presidential appointees from nonpresidential
appointees truly existed. For one, presidential appointees come under the direct disciplining
authority of the President pursuant to the well-settled principle that, in the absence of a contrary
law, the power to remove or to discipline is lodged in the same authority in whom the power to
appoint is vested. Having the power to remove or to discipline presidential appointees,
therefore, the President has the corollary authority to investigate them and look into their
conduct in office.

Thus, Baculi, as a presidential appointee, came under the disciplinary jurisdiction of the
President in line with the principle that the "power to remove is inherent in the power to
appoint." As such, the DAR Secretary held no disciplinary jurisdiction over him. Verily,
Presidential Decree No. 807 has expressly specified the procedure for disciplinary actions
involving presidential appointees. (Baculi v. Office of the President, March 8, 2017, G.R. No.
188681)

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

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

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

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

Section 47. Disciplinary Jurisdiction. x x x.

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

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

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

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

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

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

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

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

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

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

The Taala ruling was reiterated in Cristobal v. Melchor, Tan, Jr. v. Office of the
President, De Guzman v. CSC and Del Castillo v. CSC - cases involving government employees
who were dismissed after being found administratively liable, but who were subsequently
exonerated on appeal.

In Garcia v. Chairman Commission on Audit, the Court held that where the employee,
who was dismissed after being found administratively liable for dishonesty, was acquitted on a
finding of innocence in the criminal case (for qualified theft) based on the same acts for which
he was dismissed the executive pardon granted him in the administrative case (in light of his
prior acquittal) entitled him to back salaries from the time of his illegal dismissal up to his actual
reinstatement.

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

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

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

xxx

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

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

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

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

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

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

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

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

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

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

44 | P a g e
 xxxx

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

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

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

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

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

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

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

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

charges against him. In addition, his suspension must be unjustified. The case
of Bangalisan v. Court of Appeals itself similarly states that "payment of salaries
corresponding to the period [1] when an employee is not allowed to work may be
decreed if he is found innocent of the charges which caused his
suspension and [2] when the suspension is unjustified. (emphases and
underscoring ours)

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

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

payment of back salaries for the preventive suspension pending appeal when the
separation was not warranted because the government employee gave no cause for
suspension or dismissal, such as where the government employee did not commit

45 | P a g e
the offense charged, punishable by suspension or dismissal (total exoneration); or
the government employee is found guilty of another offense for an act different
from that for which he was charged.

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

ELECTION LAW

RIGHT OF SUFFRAGE & VOTER REGISTRATION

Biometrics validation as part of the registration process is not a

"qualification" to the exercise of the right of suffrage, but a mere aspect of the
registration procedure, of which the State has the right to reasonably regulate.
Registration is a mere procedural requirement which does not fall under the
limitation that "no literacy, property, or other substantive requirement shall be
imposed on the exercise of suffrage.".

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

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

The contestation is untenable.

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

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

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

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

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

suffrage is concerned, should be distinguished from the concept of "registration", which is
jurisprudentially regarded as only the means by which a person's qualifications to vote is

46 | P a g e
determined. In Yra v. Abaño,77 citing Meffert v. Brown,78 it was stated that "[t]he act of
registering is only one step towards voting, and it is not one of the elements that makes the
citizen a qualified voter [and] one may be a qualified voter without exercising the right to vote."
In said case, this Court definitively characterized registration as a form of regulation and
not as a qualification for the right of suffrage:

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

not a qualification for such right. (Emphasis supplied)

xxx

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

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

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

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

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

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

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

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

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

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

implemented under COMELEC Resolution Nos. 9721, 9863, and 10013, must perforce fail. To
reiterate, this requirement is not a "qualification" to the exercise of the right of
suffrage, but a mere aspect of the registration procedure, of which the State has
the right to reasonably regulate. It was institutionalized conformant to the limitations of
the 1987 Constitution and is a mere complement to the existing Voter's Registration Act of 1996.
Petitioners would do well to be reminded of this Court's pronouncement in AKBAYAN-Youth,
wherein it was held that:

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

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

Thus, unless it is shown that a registration requirement rises to the level of a literacy,
property or other substantive requirement as contemplated by the Framers of the Constitution -
that is, one which propagates a socio-economic standard which is bereft of any rational basis to
a person's ability to intelligently cast his vote and to further the public good - the same cannot be
struck down as unconstitutional, as in this case. (Kabataan Party List v. Comelec, G.R. No.
221318, December 16, 2015) (Emphases supplied)

47 | P a g e
 JURISDICTION OF ELECTORAL TRIBUNALS

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

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

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

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

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

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

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

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

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

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

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

COMELEC, the Court ruled that:

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

This pronouncement was reiterated in the case of Limkaichong v. COMELEC, wherein

the Court, referring to the jurisdiction of the COMELEC vis-a-vis the HRET, held that:

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

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

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

jurisdiction over the matter of his qualifications, as well as questions regarding the conduct
of election and contested returns – were transferred to the HRET as the constitutional body
created to pass upon the same. (Emphasis supplied.)
48 | P a g e
 From the foregoing, it is then clear that to be considered a Member of the House of
Representatives, there must be a concurrence of the following requisites: (1) a valid
proclamation, (2) a proper oath, and (3) assumption of office.

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

xxx

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

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

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

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

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

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

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

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

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

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

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

Section 17, Article VI of the Constitution provides that the HRET shall be the sole judge
of all contests relating to, among other things, the qualifications of the members of the House of
Representatives. Since, xxx, party-list nominees are "elected members" of the House of
Representatives no less than the district representatives are, the HRET has jurisdiction to hear
and pass upon their qualifications. By analogy with the cases of district representatives, once the
party or organization of the party-list nominee has been proclaimed and the nominee has taken
his oath and assumed office as member of the House of Representatives, the COMELEC’s
jurisdiction over election contests relating to his qualifications ends and the HRET’s own
jurisdiction begins. (Abayon v. House of Representatives Electoral Tribunal, G.R. No. 189466,
February 11, 2010)

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

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

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

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

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

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

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

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

xxx

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

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

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

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

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

Evidently, there is no basis to oblige the Tribunal to reopen the naturalization

proceedings for a determination of the citizenship of the ascendant of respondent. A petition for
quo warranto is not a means to achieve that purpose. To rule on this issue in this quo warranto
proceeding will not only be a clear grave abuse of discretion amounting to a lack or excess of
jurisdiction, but also a blatant violation of due process on the part of the persons who will be
affected or who are not parties in this case.

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

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 The House of Representatives Electoral Tribunal (HRET) has no jurisdiction
over an action wherein an individual seeks to be seated as the second nominee of a
winning party list organization, as such action is not an election protest nor an
action for quo warranto.

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

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

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

xxx

The Court has jurisdiction over the case

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

We do not agree.

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

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

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

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

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

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

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

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

xxx

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

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

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

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

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

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

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

xxx

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

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

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

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

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

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

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

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

xxx

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

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

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

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

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

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

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

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

In the present case, the Petition for petitioner Lico's expulsion from the House of
Representatives is anchored on his expulsion from Ating Koop, which necessarily affects his title
as member of Congress. A partylist nominee must have been, among others, a bona fide member
of the party or organization for at least ninety (90) days preceding the day of the election.
Needless to say, bona fide membership in the party-list group is a continuing qualification. We
have ruled that qualifications for public office, whether elective or not, are continuing
requirements. They must be possessed not only at the time of appointment or election, or of
assumption of office, but during the officer's entire tenure.

This is not the first time that this Court has passed upon the issue of HRET jurisdiction
over the requirements for bona fide membership in a party-list organization. In Abayon v.
HRET, it was argued that the petitioners did not belong to the marginalized and under-
represented sectors that they should represent; as such, they could not be properly considered
bona fide members of their respective party-list organizations. The Court held that it was for the
HRET to interpret the meaning of the requirement of bona fide membership in a party-list
organization. It reasoned that under Section 17, Article VI of the Constitution, the HRET is the
sole judge of all contests when it comes to qualifications of the members of the House of
Representatives.

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

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 JURISDICTION OF THE COMELEC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The issue before the COMELEC is whether or not the COC of petitioner should be denied
due course or cancelled "on the exclusive ground" that she made in the certificate a false
material representation. The exclusivity of the ground should hedge in the discretion of the
COMELEC and restrain it from going into the issue of the qualifications of the candidate for the
position, if, as in this case, such issue is yet undecided or undetermined by the proper authority.
The COMELEC cannot itself, in the same cancellation case, decide the qualification or lack
thereof of the candidate. xxxx

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

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

Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides
of one to the other. Both do not allow, are not authorizations, are not vestment of jurisdiction,
for the COMELEC to determine the qualification of a candidate. The facts of qualification must
beforehand be established in a prior proceeding before an authority properly vested with
jurisdiction. The prior determination of qualification may be by statute, by executive order or by
a judgment of a competent court or tribunal.
56 | P a g e
 If a candidate cannot be disqualified without a prior finding that he or she is suffering
from a disqualification "provided by law or the Constitution," neither can the certificate of
candidacy be cancelled or denied due course on grounds of false representations regarding his
or her qualifications, without a prior authoritative finding that he or she is not qualified, such
prior authority being the necessary measure by which the falsity of the representation can be
found. The only exception that can be conceded are self-evident facts of unquestioned or
unquestionable veracity and judicial confessions. Such are, anyway, bases equivalent to prior
decisions against which the falsity of representation can be determined. (Poe-Llamanzares v.
Comelec, G.R. No. 221697, March 8, 2016)

The COMELEC has jurisdiction over cases pertaining to party leadership and
the nomination of party-list representatives. COMELEC has the constitutional power
to enforce and administer all laws relative to the conduct of an election, plebiscite,
initiative, referendum, and recall. It is also tasked to register, political parties,
organizations, or coalitions. COMELEC’s jurisdiction to settle the struggle for
leadership within the party is incidental to its enforcement powers. The COMELEC
has the authority to resolve intra-party disputes as a necessary tributary of its
constitutionally mandated power to enforce election laws and register political
parties.

The COMELEC has jurisdiction over cases pertaining to party leadership and the
nomination of party-list representatives.

Petitioners contend that the COMELEC never should have taken cognizance of
respondents’ Petition to Expunge and/or for Disqualification. They have reached this conclusion
by characterizing the present matter as an intra-corporate dispute and, thus, cognizable only by
special commercial courts, particularly the designated commercial court in this case, the
Regional Trial Court in Pasig City. xxx

Thus, petitioners insist that the group that participated in the party-list system in the
2004 and 2007 elections was the SEC-registered entity, and not the National Council, which had
allegedly become defunct since 2003. That was the year when CIBAC Foundation, Inc. was
established and registered with the SEC. On the other hand, respondents counter that the
foundation was established solely for the purpose of acting as CIBAC’s legal and financial arm,
as provided by the party’s Constitution and bylaws. It was never intended to substitute for, or
oust CIBAC, the party-list itself.

Even as petitioners insisted on the purely intra-corporate nature of the conflict between
"CIBAC Foundation" and the CIBAC Sectoral Party, they submitted their Certificate of
Nomination and Manifestation of Intent to participate in the party-list elections. Precisely,
petitioners were seeking the COMELEC’s approval of their eligibility to participate in the
upcoming party-list elections. In effect, they invoke its authority under the Party-List System
Act. Contrary to their stance that the present dispute stemmed from an intra-corporate matter,
their submissions even recognize the COMELEC’s constitutional power to enforce and
administer all laws relative to the conduct of an election, plebiscite, initiative, referendum, and
recall. More specifically, as one of its constitutional functions, the COMELEC is also tasked to
"register, after sufficient publication, political parties, organizations, or coalitions which, in
addition to other requirements, must present their platform or program of government."

In any case, the COMELEC’s jurisdiction to settle the struggle for leadership within the
party is well established. This singular power to rule upon questions of party identity and
leadership is exercised by the COMELEC as an incident to its enforcement powers. In Laban ng
Demokratikong Pilipino v. Commission on Elections, the Court held:

x x x. Corollary to the right of a political party "to identify the people who
constitute the association and to select a standard bearer who best represents the
party’s ideologies and preference" is the right to exclude persons in its association
and to not lend its name and prestige to those which it deems undeserving to
represent its ideals. A certificate of candidacy makes known to the COMELEC
that the person therein mentioned has been nominated by a duly authorized
political group empowered to act and that it reflects accurately the sentiment of
the nominating body. A candidate’s political party affiliation is also printed
followed by his or her name in the certified list of candidates. A candidate
misrepresenting himself or herself to be a party’s candidate, therefore, not only
misappropriates the party’s name and prestige but foists a deception upon the
electorate, who may unwittingly cast its ballot for him or her on the mistaken
57 | P a g e
 belief that he or she stands for the party’s principles. To prevent this occurrence,
the COMELEC has the power and the duty to step in and enforce the law not only
to protect the party but, more importantly, the electorate, in line with the
Commission’s broad constitutional mandate to ensure orderly elections.

Similar to the present case, Laban delved into the issue of leadership for the purpose of
determining which officer or member was the duly authorized representative tasked with filing
the Certificate of Nomination, pursuant to its Constitution and bylaws, to wit:

The only issue in this case, as defined by the COMELEC itself, is who as
between the Party Chairman and the Secretary General has the authority to sign
certificates of candidacy of the official candidates of the party. Indeed, the
petitioners’ Manifestation and Petition before the COMELEC merely asked the
Commission to recognize only those certificates of candidacy signed by petitioner
Sen. Angara or his authorized representative, and no other.

In the 2010 case Atienza v. Commission on Elections, it was expressly settled that the
COMELEC possessed the authority to resolve intra-party disputes as a necessary tributary of its
constitutionally mandated power to enforce election laws and register political parties. The
Court therein cited Kalaw v. Commission on Elections and Palmares v. Commission on
Elections, which uniformly upheld the COMELEC’s jurisdiction over intra-party disputes:

The COMELEC’s jurisdiction over intra-party leadership disputes has

already been settled by the Court. The Court ruled in Kalaw v. Commission on
Elections that the COMELEC’s powers and functions under Section 2, Article IX-
C of the Constitution, "include the ascertainment of the identity of the political
party and its legitimate officers responsible for its acts." The Court also declared
in another case that the COMELEC’s power to register political parties
necessarily involved the determination of the persons who must act on its behalf.
Thus, the COMELEC may resolve an intra-party leadership dispute, in a proper
case brought before it, as an incident of its power to register political parties.

Furthermore, matters regarding the nomination of party-list representatives, as well as

their individual qualifications, are outlined in the Party-List System Law. Sections 8 and 9
thereof state: Sec. 8. Nomination of Party-List Representatives. xxx

xxx

By virtue of the aforesaid mandate of the Party-List Law vesting the COMELEC with
jurisdiction over the nomination of party-list representatives and prescribing the qualifications
of each nominee, the COMELEC promulgated its "Rules on Disqualification Cases Against
Nominees of Party-List Groups/ Organizations Participating in the 10 May 2010 Automated
National and Local Elections." (Lokin v. Comelec, G.R. No. 193808, June 26, 2012)

COMELEC REGULATIONS

Why Comelec regulation of political speech on oversized tarpaulins posted on

private property by non-candidates during elections is void

Speech with political consequences enjoys a high degree of protection.

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

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

xxx

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

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

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

xxx

We distinguish between political and commercial speech. Political speech refers to

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

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

xxx

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

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

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

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

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

xxx

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

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

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

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

xxx

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

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

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

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

of the utterance or speech."

xxx

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

Regulation of speech in the context of electoral campaigns made by non-

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

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

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

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

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

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

xxx

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

provide limits to some expression during electoral campaigns.

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

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

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

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

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

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

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

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

The act of the Comelec in restraining private individuals from posting

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

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

xxx

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

xxx

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

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

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

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

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

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

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

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

The tarpaulin in question may be viewed as producing a caricature of those who are
running for public office. Their message may be construed generalizations of very complex
individuals and party-list organizations.

They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."

But this caricature, though not agreeable to some, is still protected speech.

xxx

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

of expression protected by our fundamental law. It is an expression designed to invite attention,
cause debate, and hopefully, persuade. x x x

What is involved in this case is the most sacred of speech forms: expression by the
electorate that tends to rouse the public to debate contemporary issues. This is not speech by
candidates or political parties to entice votes. It is a portion of the electorate telling candidates
the conditions for their election. It is the substantive content of the right to suffrage.

This is a form of speech x x x is protected as a fundamental and primordial right by our

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

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

invalid

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

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

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

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

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

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 xxx

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

5.9. With a 20-hour programming per day and considering the limits of a station's
coverage, it will be difficult for 1 advertising spot to make a sensible and feasible
communication to the public, or in political propaganda, to "make known [a candidate's]
qualifications and stand on public issues".

xxx

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

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

limits on broadcast time when we consider that the Philippines is not only composed of so many
islands. There are also a lot of languages and dialects spoken among the citizens across the
country. Accordingly, for a national candidate to really reach out to as many of the electorates as
possible, then it might also be necessary that he conveys his message through his
advertisements in languages and dialects that the people may more readily understand and
relate to. To add all of these airtimes in different dialects would greatly hamper the ability of
such candidate to express himself - a form of suppression of his political speech.

Respondent itself states that "[t]elevision is arguably the most cost effective medium of
dissemination. Even a slight increase in television exposure can significantly boost a candidate's
popularity, name recall and electability." If that be so, then drastically curtailing the ability of a
candidate to effectively reach out to the electorate would unjustifiably curtail his freedom to
speak as a means of connecting with the people. (GMA Network v. Commission on Elections,
G.R. No. 205357, September 2, 2014)

Violation of the right to suffrage: The COMELEC’s aggregate time-limit rule

[rule limiting the broadcast and radio advertisements of candidates and political
parties for national election positions to an aggregate total of one hundred twenty
(120) minutes and one hundred eighty (180) minutes for political campaigns or
advertisements] violate the people’s right to suffrage by restricting the right of the
people to be adequately informed for the intelligent exercise of their right to
determine their own destiny.

Section 9 (a) of Resolution 9615 is violative of the people's right to suffrage.

Fundamental to the idea of a democratic and republican state is the right of the people to
determine their own destiny through the choice of leaders they may have in government. Thus,
the primordial importance of suffrage and the concomitant right of the people to be adequately
informed for the intelligent exercise of such birthright. (GMA Network v. Commission on
Elections, G.R. No. 205357, September 2, 2014)

Why the Comelec prohibition on posting of an election campaign material

during an election period in Public Utility Vehicles (PUVs) and transport terminals is
void

63 | P a g e
 The Comelec prohibition on posting of an election campaign material during
an election period in Public Utility Vehicles (PUVs) and transport terminals --
constitutes a prior restraint on the right to free expression. Prior restraints are
presumed invalid.

Free speech may be identified with the liberty to discuss publicly and truthfully any
matter of public concern without prior restraint or censorship and subsequent punishment.
Prior restraint refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination. Freedom from prior restraint is
largely freedom from government censorship of publications, whatever the form of censorship,
and regardless of whether it is wielded by the executive, legislative or judicial branch of the
government. Any system of prior restraints of expression comes to this Court bearing a heavy
presumption against its validity.

Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 unduly
infringe on the fundamental right of the people to freedom of speech. Central to the prohibition
is the freedom of individuals, i.e., the owners of PUVs and private transport terminals, to
express their preference, through the posting of election campaign material in their property,
and convince others to agree with them.

Pursuant to the assailed provisions of Resolution No. 9615, posting an election campaign
material during an election period in PUVs and transport terminals carries with it the penalty of
revocation of the public utility franchise and shall make the owner thereof liable for an election
offense.

The prohibition constitutes a clear prior restraint on the right to free expression of the
owners of PUVs and transport terminals. As a result of the prohibition, owners of PUVs and
transport terminals are forcefully and effectively inhibited from expressing their preferences
under the pain of indictment for an election offense and the revocation of their franchise or
permit to operate.

It is now deeply embedded in our jurisprudence that freedom of speech and of the press
enjoys a preferred status in our hierarchy of rights. The rationale is that the preservation of
other rights depends on how well we protect our freedom of speech and of the press. x x x

Thus, in Adiong v. COMELEC, the Court struck down the COMELEC’s prohibition
against the posting of decals and stickers on "mobile places." The Court ratiocinated that:

Significantly, the freedom of expression curtailed by the questioned prohibition is

not so much that of the candidate or the political party. The regulation strikes at the
freedom of an individual to express his preference and, by displaying it on his car, to
convince others to agree with him. A sticker may be furnished by a candidate but once the
car owner agrees to have it placed on his private vehicle, the expression becomes a
statement by the owner, primarily his own and not of anybody else.

(1-United Transport Koalisyon [1-Utak] v. Commission on Elections, G.R. No. 206020,

April 14, 2015)

A content-neutral regulation, which merely controls the time, place or

manner of speech, is valid if the following requisites concur: first, the government
regulation is within the constitutional power of the Government; second, it furthers
an important or substantial governmental interest; third, the governmental interest
is unrelated to the suppression of free expression; and fourth, the incidental
restriction on freedom of expression is no greater than is essential to the
furtherance of that interest. Prohibiting owners of PUVs and transport terminals
from posting election campaign materials is an invalid content-neutral regulation
because, first, it is not within the constitutionally delegated power of the Comelec,
and second, there is no necessity to restrict the right to free speech of the owners of
PUVs and transport terminals.

The COMELEC claims that while Section 7(g) items (5) and (6) of Resolution No. 9615
may incidentally restrict the right to free speech of owners of PUVs and transport terminals, the
same is nevertheless constitutionally permissible since it is a valid content-neutral regulation.

The Court does not agree.

64 | P a g e
 A content-neutral regulation, i.e., which is merely concerned with the incidents of the
speech, or one that merely controls the time, place or manner, and under well-defined
standards, is constitutionally permissible, even if it restricts the right to free speech, provided
that the following requisites concur: first, the government regulation is within the constitutional
power of the Government; second, it furthers an important or substantial governmental interest;
third, the governmental interest is unrelated to the suppression of free expression; and fourth,
the incidental restriction on freedom of expression is no greater than is essential to the
furtherance of that interest.

Section 7(g) items (5) and (6) of Resolution No. 9615 are content-neutral regulations
since they merely control the place where election campaign materials may be posted. However,
the prohibition is still repugnant to the free speech clause as it fails to satisfy all of the requisites
for a valid content-neutral regulation.

It is conceded that Resolution No. 9615, including the herein assailed provisions,
furthers an important and substantial governmental interest, i.e., ensuring equal opportunity,
time and space among candidates aimed at the holding of free, orderly, honest, peaceful, and
credible elections. It is further conceded that the governmental interest in imposing the said
prohibition is unrelated to the suppression of free expression. However, Section 7(g) items (5)
and (6), in relation to Section 7(f), of Resolution No. 9615, are not within the constitutionally
delegated power of the COMELEC under Section 4, Article IX-C of the Constitution. Also, there
is absolutely no necessity to restrict the right to free speech of the owners of PUVs and transport
terminals. (1-United Transport Koalisyon v. Commission on Elections, G.R. No. 206020, April
14, 2015)

Prohibiting owners of PUVs and transport terminals from posting election

campaign materials cannot be justified under the captive-audience doctrine. The
commuters are not forced or compelled to read the election campaign materials
posted on PUVs and transport terminals, nor are they incapable of declining to
receive the messages contained therein.

The COMELEC further points out that PUVs [Public Utility Vehicles] and transport
terminals hold a "captive audience" – commuters who have no choice but be subjected to the
blare of political propaganda. The COMELEC further claims that while owners of privately
owned PUVs and transport terminals have a right to express their views to those who wish to
listen, they have no right to force their message upon an audience incapable of declining to
receive it.

The COMELEC’s claim is untenable.

The captive-audience doctrine states that when a listener cannot, as a practical matter,
escape from intrusive speech, the speech can be restricted. The "captive-audience" doctrine
recognizes that a listener has a right not to be exposed to an unwanted message in
circumstances in which the communication cannot be avoided.

A regulation based on the captive-audience doctrine is in the guise of censorship, which

undertakes selectively to shield the public from some kinds of speech on the ground that they
are more offensive than others. Such selective restrictions have been upheld only when the
speaker intrudes on the privacy of the home or the degree of captivity makes it either impossible
or impractical for the unwilling viewer or auditor to avoid exposure.

In Consolidated Edison Co. v. Public Service Commission, the Supreme Court of the
United States of America (U.S. Supreme Court) struck down the order of New York Public
Service Commission, which prohibits public utility companies from including inserts in monthly
bills discussing controversial issues of public policy. The U.S. Supreme Court held that "[t]he
prohibition cannot be justified as being necessary to avoid forcing appellant’s views on a captive
audience, since customers may escape exposure to objectionable material simply by throwing
the bill insert into a wastebasket."

Similarly, in Erznoznik v. City of Jacksonville, the U.S. Supreme Court nullified a city
ordinance, which made it a public nuisance and a punishable offense for a drive-in movie
theater to exhibit films containing nudity, when the screen is visible from a public street or
place. The U.S. Supreme Court opined that the degree of captivity is not so great as to make it
impracticable for an unwilling viewer to avoid exposure x x x.

Thus, a government regulation based on the captive-audience doctrine may not be

justified if the supposed "captive audience" may avoid exposure to the otherwise intrusive
speech. The prohibition under Section 7(g) items (5) and (6) of Resolution No. 9615 is not
65 | P a g e
justified under the captive-audience doctrine; the commuters are not forced or compelled to
read the election campaign materials posted on PUVs and transport terminals. Nor are they
incapable of declining to receive the messages contained in the posted election campaign
materials since they may simply avert their eyes if they find the same unbearably intrusive. (1-
United Transport Koalisyon v. Commission on Elections, G.R. No. 206020, April 14, 2015)

Why the Comelec’s regulation requiring disclosure of names of those who

commission or pay for election surveys, including subscribers of survey firms -- is
valid

Election surveys may influence voter preferences. When left unregulated,

election surveys can undermine the holding of "fair" elections, which is the purpose
of the Fair Election act. The Fair Election Act aims to realize the policy under the
1987 Constitution to guarantee equal access to opportunities for public service and
reduce political inequalities.

We sustain the validity of Resolution No. 9674. The names of those who commission or
pay for election surveys, including subscribers of survey firms, must be disclosed pursuant to
Section 5.2(a) of the Fair Election Act. This requirement is a valid regulation in the exercise of
police power and effects the constitutional policy of "guarantee[ing] equal access to
opportunities for public service[.]" Section 5.2(a)’s requirement of disclosing subscribers neither
curtails petitioners’ free speech rights nor violates the constitutional proscription against the
impairment of contracts.

xxx

Republic Act No. 9006 was adopted with the end in mind of "guarantee[ing] or
ensur[ing] equal opportunity for public service" x x x.

[T]he Fair Election Act provides means to realize the policy articulated in Article II,
Section 26 of the 1987 Constitution to "guarantee equal access to opportunities for public
service[.]" x x x

Apart from making real Article II, Section 26’s constitutional policy, the Fair Election Act
represents the legislature’s compliance with the requirement of Article XIII, Section 1:
"Congress . . . give[s] highest priority to the enactment of measures that . . . reduce . . . political
inequalities . . . by equitably diffusing wealth and political power for the common good."

xxx

x x x [T]he inclusion of published election surveys in a statute that regulates election

propaganda and other means through which candidates may shape voter preferences is itself
telling of the recognition that published election surveys, too, may influence voter preferences.
This inclusion is similarly telling of a recognition that, left unregulated, election surveys can
undermine the purposes of ensuring "fair" elections. x x x (Social Weather Station v.
Commission on Elections, G.R. No. 208062, April 27, 2015)

Election surveys may tend to shape voter preferences. When published,

election surveys partake of the nature of election propaganda subject to Comelec
regulation. The requirement of disclosing the names of subscribers to election
surveys is valid regulation of declarative speech by private entities in the context of
an election campaign because 1) it has basis in a statute, 2) it furthers not just an
important or substantial state interest but even a compelling one, which is to
guarantee equal access to opportunities for public service, and 3) narrowly tailored
to meet the objective and is least restrictive means to achieve that objective.

Concededly, what are involved here are not election propaganda per se. Election surveys,
on their face, do not state or allude to preferred candidates. x x x When published, however, the
tendency to shape voter preferences comes into play. In this respect, published election surveys
partake of the nature of election propaganda. x x x Hence, Section 5.2 of the Fair Election Act’s
regulation of published surveys.

We thus proceed to evaluate Resolution No. 9674’s requirement of disclosing the names
of subscribers to election surveys in light of the requisites for valid regulation of declarative
speech by private entities in the context of an election campaign:

66 | P a g e
 First, the text of Section 5.2(a) of the Fair Election Act supports the inclusion of
subscribers among those persons who "paid for the survey[.]" Thus, Resolution No. 9674 is a
regulation finding basis in statute.

COMELEC correctly points out that in Section 5.2(a) of the Fair Election Act, those who
"commissioned" and those who "paid for" the published survey are separated by the disjunctive
term "or." x x x

The second class makes no distinction between those who pay for a specific survey and
those who pay for election surveys in general. Indeed, subscribers do not escape the burden
ofpaying for the component articles comprising a subscription. x x x

Second, not only an important or substantial state interest but even a compelling one
reasonably grounds Resolution No. 9674’s inclusion of subscribers to election surveys. Thus,
regardless of whether an intermediate or strict standard is used, Resolution No. 9674 passes
scrutiny.

It is settled that constitutionally declared principles are a compelling state interest:

Compelling governmental interest would include constitutionally declared principles.

xxx

[T]he regulation of election surveys effects the constitutional policy, articulated in Article
II, Section 26, and reiterated and affirmed in Article IX-C, Section 4 and Article XIII, Section 26
of the 1987 Constitution, of "guarantee[ing] equal access to opportunities for public service[.]"

Resolution No. 9674 addresses the reality that an election survey x x x can be a means to
shape the preference of voters and, thus, the outcome of elections. x x x Accordingly, the
imperative of "fair" elections impels their regulation.

Lastly, Resolution No. 9674 is "narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the primacy of the guarantee of free
expression" and is "demonstrably the least restrictive means to achieve that object."

While it does regulate expression (i.e., petitioners’ publication of election surveys), it

does not go so far as to suppress desired expression. There is neither prohibition nor censorship
specifically aimed at election surveys. The freedom to publish election surveys remains. All
Resolution No. 9674 does is articulate a regulation as regards the manner of publication, that is,
that the disclosure of those who commissioned and/or paid for, including those subscribed to,
published election surveys must be made. (Social Weather Station v. Commission on Elections,
G.R. No. 208062, April 7, 2015)

The Comelec’s regulation requiring disclosure of names of those who

commission or pay for election surveys is not a prior restraint as the disclosure
requirement kicks in only upon, not prior to, publication.

Prior restraint refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination. Freedom from prior restraint is
largely freedom from government censorship of publications, whatever the form of censorship,
and regardless of whether it is wielded by the executive, legislative or judicial branch of the
government. Thus, it precludes governmental acts that required approval of a proposal to
publish; licensing or permits as prerequisites to publication including the payment of license
taxes for the privilege to publish; and even injunctions against publication. Even the closure of
the business and printing offices of certain newspapers, resulting in the discontinuation of their
printing and publication, are deemed as previous restraint or censorship. Any law or official that
requires some form of permission to be had before publication can be made, commits an
infringement of the constitutional right, and remedy can be had at the courts.

The very definition of "prior restraint" negates petitioner’s assertions. Resolution No.
9674 poses no prohibition or censorship specifically aimed at election surveys. Apart from
regulating the manner of publication, petitioners remain free to publish election surveys.
COMELEC correctly points out that "[t]he disclosure requirement kicks in only upon, not prior
to, publication."

In any case, the requirement of disclosing subscribers is neither unduly burdensome nor
onerous. Prior to the promulgation of Resolution No. 9674, survey firms are already understood
to be bound by the requirement to disclose those who commission or pay for published election
surveys. Petitioners have been complying with this without incident since the Fair Election Act
was enacted in 2001. After more than a decade of compliance, it is odd for petitioners to
67 | P a g e
suddenly assail the disclosure requirement as unduly burdensome or onerous. (Social Weather
Station v. Commission on Elections, G.R. No. 208062, April 7, 2015)

The Comelec rule on mandatory right to reply is valid: The Constitution itself
mandates the right to reply. Moreover, radio and TV broadcasting companies do not
own the airwaves but are merely given the temporary privilege of using them. The
exercise of the privilege may reasonably be burdened with the performance by the
grantee of some form of public service.

Section 14 of Resolution No. 9615, as revised by Resolution No. 9631, provides:

SECTION 14. Right to Reply. - All registered political parties, party-list groups or
coalitions and bona fide candidates shall have the right to reply to charges published or
aired against them. The reply shall be given publicity by the newspaper, television, and/or
radio station which first printed or aired the charges with the same prominence or in the
same page or section or in the same time slot as the first statement. x x x

The Constitution itself provides as part of the means to ensure free, orderly, honest, fair
and credible elections, a task addressed to the COMELEC to provide for a right to reply. Given
that express constitutional mandate, it could be seen that the Fundamental Law itself has
weighed in on the balance to be struck between the freedom of the press and the right to reply.

Moreover, as already discussed by the Court in Telecommunications and Broadcast

Attorneys of the Philippines, Inc. v. Commission on Elections.
In truth, radio and television broadcasting companies, which are given franchises,
do not own the airwaves and frequencies through which they transmit broadcast signals
and images. They are merely given the temporary privilege of using them. Since a franchise
is a mere privilege, the exercise of the privilege may reasonably be burdened with the
performance by the grantee of some form of public service.

(GMA Network v. Commission on Elections, G.R. No. 205357, September 2, 2014)

DISQUALIFICATION OF CANDIDATES

The grounds for disqualification of a candidate are found under Sections 12

and 68 of Batas Pambansa Blg. 881, as amended, otherwise known as the Omnibus
Election Code of the Philippines, as well as Section 40 of the Local Government Code
(LGC). Violation of the three-term limit rule provided under the Constitution and the
LGC; and suspension from office as a result of an administrative case are not for a
candidate's disqualification under these laws. Suspension from office is indeed not a
ground for a petition for disqualification as Section 40 (b) of the LGC clearly speaks
of removal from office as a result of an administrative offense. A violation of the
three-term limit rule is not included among the grounds for disqualification, but a
ground for a petition to deny due course to or cancel certificate of candidacy.

The grounds for disqualification of a candidate are found under Sections 12 and 68 of
Batas Pambansa Blg. 881, as amended, otherwise known as the Omnibus Election Code of the
Philippines, as well as Section 40 of the Local Government Code, which respectively provide:

SEC. 12. Disqualifications. Any person who has been declared by

competent authority insane or incompetent, or has been sentenced by final
judgment for subversion, insurrection, rebellion, or for any offense for which he
has been sentenced to a penalty of more than eighteen months or for a crime
involving moral turpitude, shall be disqualified to be a candidate and to hold
any office, unless he has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five years
from his service or sentence, unless within the same period he again becomes
disqualified.

xxxx
SEC. 68. Disqualifications. Any candidate who, in an action or protest in
which he is a party is declared by final decision of a competent court guilty of,
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 or found by the Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials
performing electoral functions; (b) committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an amount in excess of that
allowed by this Code; (d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections
80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be
disqualified from continuing as a candidate, or if he has been elected, from
holding the office. Any person who is a permanent resident of or an immigrant
to a foreign country shall not be qualified to run for any, elective office under
this Code, unless said person has waived his status as a permanent resident or
immigrant of a foreign country in accordance with the residence requirement
provided for in the election laws.
xxxx
SECTION 40. Disqualifications - The following persons are disqualified
from running for any elective local position:
(a) Those sentence by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of imprisonment,
within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case; .
(c) Those convicted by final judgment for violating the oath of allegiance
to the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired
the right to reside abroad and continue to avail of the same right after the
effectivity of this Code; and
(g) The insane or feeble-minded.

Petitioner filed the petition for disqualification of respondent on the grounds that he
allegedly violated the three-term limit rule provided under the Constitution and the LGC; and
that he was suspended from office as a result of an administrative case. Notably, however, a
reading of the grounds enumerated under the above-quoted provisions for a candidate's
disqualification does not include the two grounds relied upon by petitioner. Thus, the
COMELEC Second Division was correct when it found that the petition was not based on any of
the grounds for disqualification as enumerated in the foregoing statutory provisions.

Respondent's suspension from office is indeed not a ground for a petition for
disqualification as Section 40 (b) clearly speaks of removal from office as a result of an
administrative offense that would disqualify a candidate from running for any elective local
position. In fact, the penalty of suspension cannot be a bar to the candidacy of the respondent so
suspended as long as he meets the qualifications for the office as provided under Section 66(b)
of R.A. No. 7160, xxxx. (Albania v. Comelec, June 6, 2017, G.R. No. 226792)

A violation of the three-term limit rule is not included among the grounds for
disqualification under Sections 12 and 68 of the Omnibus Election Code of the
Philippines, as well as Section 40 of the Local Government Code. However, it is a
ground for a petition to deny due course to or cancel certificate of candidacy, which
must be filed not later than twenty-five days from the time of the filing of the
certificate of candidacy.

The three-term limit rule is embodied in Section 8 of Article X of the Constitution, to wit:

Section 8. The term of office of elective local officials,

except barangay officials, which shall be determined by law, shall be three
years and no such official shall serve for more than three consecutive terms.
Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for
which he was elected.

which is restated in Section 43 of the Local Government Code, thus:

Section 43. Term of Office. - (a) x x x

(b) No local elective official shall serve for more than three (3)
consecutive terms in the same position. Voluntary renunciation of the office for

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 any length of time shall not be considered as an interruption in the continuity of
service for the full term for which the elective official concerned was elected.

Section 74 of the OEC provides that the certificate of candidacy shall state that the
person filing it is announcing his candidacy for the office stated therein and that he is eligible for
said office. The word "eligible" in Section 74 means having the right to run for elective public
office, that is, having all the qualifications and none of the ineligibilities to run for the public
office. And We had held that a violation of the three-term limit rule is an ineligibility which is a
proper ground for a petition to deny due course to or to cancel a COC under Section 78 of the
Omnibus Election Code, to wit:

Sec. 78. Petition to deny due course to or cancel a certificate of

candidacy. - A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by the person exclusively on the ground
that any material representation contained therein as required under Section 74
hereof is false. The petition may be filed at any time not later than twenty-five
days from the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days before the
election.

As the petition filed is indeed a petition under Section 78 of the OEC, the filing of the
same must comply with the period prescribed therein, i.e., the filing of the same must be made
not later than twenty-five days from the time of the filing of the certificate of candidacy. In this
case, respondent filed his COC for Governor of Camarines Norte for the 2016 elections on
October 16, 2015, and he had 25 days therefrom to file the petition for denial of due course or
cancellation of COC on the ground of violation of the three-term limit rule, which fell on
November 10, 2015. However, the petition was filed only on November 13, 2015 which was
already beyond the period to file the same; thus, find no grave abuse of discretion committed by
the COMELEC in dismissing the petition for being filed out of time. (Albania v. Comelec, June
6, 2017, G.R. No. 226792)

Petitions to question the qualifications of local candidates: 1) Petition to

deny due course or cancel a certificate of candidacy under Section 28 of the OEC;
and 2) Petition for quo warranto under Section 253 of the OEC after proclamation of
the candidate

The fact that the petitioner’s qualifications were not questioned when she filed
certificates of candidacy for 2007 and 2010 elections cannot operate as an estoppel to the
petition for quo warranto before the RTC.

Under the Batas Pambansa Bilang 881 (Omnibus Election Code), there are two instances
where a petition questioning the qualifications of a registered candidate to run for the office for
which his certificate of candidacy was filed can be raised, to wit:

(1) Before election, pursuant to Section 78 thereof which provides that:

Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. – A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any
person exclusively on the ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five
days from the time of the filing of the certificate of candidacy and shall be decided, after due notice
and hearing, not later than fifteen days before the election; and

(2) After election, pursuant to Section 253 thereof, viz:

Sec. 253. Petition for quo warranto. – Any voter contesting the election of any Member of
the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of
disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the
Commission within ten days after the proclamation of the results of the election.

Hence, if a person qualified to file a petition to disqualify a certain candidate fails to file
the petition within the twenty-five (25)-day period prescribed by Section 78 of the Omnibus
Election Code for whatever reasons, the elections laws do not leave him completely helpless as
he has another chance to raise the disqualification of the candidate by filing a petition for quo
warranto within ten (10) days from the proclamation of the results of the election, as provided
under Section 253 of the Omnibus Election Code.

The above remedies were both available to the private respondents and their failure to
utilize Section 78 of the Omnibus Election Code cannot serve to bar them should they opt to file,
70 | P a g e
as they did so file, a quo warranto petition under Section 253. (Sobejana-Condon v.
Commission on Elections, G.R. No. 198742, August 10, 2012)

Effect of a void certificate of candidacy: No valid candidate, no valid votes;

votes for him are stray votes and should not be counted. The qualified person who
obtained the highest number of votes must be proclaimed.

A void certificate of candidacy on the ground of ineligibility that existed at the time of the
filing of the certificate of candidacy can never give rise to a valid candidacy, and much less to
valid votes. Jalosjos’ certificate of candidacy was cancelled because he was ineligible from the
start to run for Mayor. Whether his certificate of candidacy is cancelled before or after the
elections is immaterial because the cancellation on such ground means he was never a valid
candidate from the very beginning, his certificate of candidacy being void ab initio. Jalosjos’
ineligibility existed on the day he filed his certificate of candidacy, and the cancellation of his
certificate of candidacy retroacted to the day he filed it. Thus, Cardino ran unopposed. There
was only one qualified candidate for Mayor in the May 2010 elections – Cardino – who received
the highest number of votes. (Jalosjos v. Commission on Elections, G.R. No. 193237, October 9,
2012)

The rule that the second-placer cannot be proclaimed winner if the first-
placer is disqualified or declared ineligible should be limited to situations where the
certificate of candidacy of the first-placer was valid at the time of filing, but
subsequently cancelled for a violation of law that took place, or a legal impediment
that took effect, after the filing of the CoC.

Decisions of this Court holding that the second-placer cannot be proclaimed winner if
the first-placer is disqualified or declared ineligible should be limited to situations where the
certificate of candidacy of the first-placer was valid at the time of filing but subsequently had to
be cancelled because of a violation of law that took place, or a legal impediment that took effect,
after the filing of the certificate of candidacy. If the certificate of candidacy is void ab initio, then
legally the person who filed such void certificate of candidacy was never a candidate in the
elections at any time. All votes for such non-candidate are stray votes and should not be
counted. Thus, such non-candidate can never be a first-placer in the elections. If a certificate of
candidacy void ab initio is cancelled on the day, or before the day, of the election, prevailing
jurisprudence holds that all votes for that candidate are stray votes. If a certificate of candidacy
void ab initio is cancelled one day or more after the elections, all votes for such candidate should
also be stray votes because the certificate of candidacy is void from the very beginning. This is
the more equitable and logical approach on the effect of the cancellation of a certificate of
candidacy that is void ab initio. Otherwise, a certificate of candidacy void ab initio can operate to
defeat one or more valid certificates of candidacy for the same position. (Jalosjos v. Commission
on Elections, G.R. No. 193237, October 9, 2012)

Knowledge by the electorate of a candidate’s disqualification due to

ineligibility is not necessary before a qualified candidate who placed second can be
proclaimed as the winner.

We have ruled in the recent cases of Aratea v. COMELEC and Jalosjos v. COMELEC that
a void COC cannot produce any legal effect.

Thus, the votes cast in favor of the ineligible candidate are not considered at all in
determining the winner of an election.

Even when the votes for the ineligible candidate are disregarded, the will of the
electorate is still respected, and even more so. The votes cast in favor of an ineligible candidate
do not constitute the sole and total expression of the sovereign voice. The votes cast in favor of
eligible and legitimate candidates form part of that voice and must also be respected.

As in any contest, elections are governed by rules that determine the qualifications and
disqualifications of those who are allowed to participate as players. When there are participants
who turn out to be ineligible, their victory is voided and the laurel is awarded to the next in rank
who does not possess any of the disqualifications nor lacks any of the qualifications set in the
rules to be eligible as candidates.

There is no need to apply the rule cited in Labo v. COMELEC that when the voters are
well aware within the realm of notoriety of a candidate’s disqualification and still cast their votes

71 | P a g e
in favor said candidate, then the eligible candidate obtaining the next higher number of votes
may be deemed elected. That rule is also a mere obiter that further complicated the rules
affecting qualified candidates who placed second to ineligible ones.

The electorate’s awareness of the candidate’s disqualification is not a prerequisite for the
disqualification to attach to the candidate. The very existence of a disqualifying circumstance
makes the candidate ineligible. Knowledge by the electorate of a candidate’s disqualification is
not necessary before a qualified candidate who placed second to a disqualified one can be
proclaimed as the winner. The second-placer in the vote count is actually the first-placer among
the qualified candidates.

That the disqualified candidate has already been proclaimed and has assumed office is of
no moment. The subsequent disqualification based on a substantive ground that existed prior to
the filing of the certificate of candidacy voids not only the COC but also the proclamation.
(Maquiling v. Comelec, G.R. No. 195649, April 16, 2013)

If a local candidate is disqualified due to his ineligibility, his certificate is void

from the beginning, and he is not a candidate at all in the elections. The qualified
candidate who obtained the highest number of votes should be proclaimed; the rule
on succession will not apply.

The disqualifying circumstance surrounding Arnado’s candidacy involves his citizenship.

It does not involve the commission of election offenses as provided for in the first sentence of
Section 68 of the Omnibus Election Code, the effect of which is to disqualify the individual from
continuing as a candidate, or if he has already been elected, from holding the office.

The disqualifying circumstance affecting Arnado is his citizenship. xxx

xxx

With Arnado being barred from even becoming a candidate, his certificate of candidacy
is thus rendered void from the beginning. It could not have produced any other legal effect
except that Arnado rendered it impossible to effect his disqualification prior to the elections
because he filed his answer to the petition when the elections were conducted already and he
was already proclaimed the winner.

To hold that such proclamation is valid is to negate the prohibitory character of the
disqualification which Arnado possessed even prior to the filing of the certificate of candidacy.
The affirmation of Arnado's disqualification, although made long after the elections, reaches
back to the filing of the certificate of candidacy. Arnado is declared to be not a candidate at all in
the May 2010 elections.

Arnado being a non-candidate, the votes cast in his favor should not have been counted.
This leaves Maquiling as the qualified candidate who obtained the highest number of votes.
Therefore, the rule on succession under the Local Government Code will not apply. (Maquiling
v. Comelec, G.R. No. 195649, April 16, 2013)

One who is disqualified under Section 68 is still technically considered to have

been a candidate, albeit proscribed to continue as such only because of supervening
infractions. One whose CoC has been denied due course to and/or cancelled under
Section 78 is deemed to have not been a candidate at all.

The Omnibus Election Code (OEC) provides for certain remedies to assail a candidate's
bid for public office. Among these which obtain particular significance to this case are: (1) a
petition for disqualification under Section 68; and (2) a petition to deny due course to and/or
cancel a certificate of candidacy under Section 78. The distinctions between the two are well-
perceived.

Primarily, a disqualification case under Section 68 of the OEC is hinged on either: (a) a
candidate's possession of a permanent resident status in a foreign country; or (b) his or her
commission of certain acts of disqualification. Anent the latter, the prohibited acts under
Section 68 refer to election offenses under the OEC, and not to violations of other penal laws. In
particular, these are: (1) giving money or other material consideration to influence, induce or
corrupt the voters or public officials performing electoral functions; (2) committing acts of
terrorism to enhance one's candidacy; (3) spending in one's election campaign an amount in
excess of that allowed by the OEC; (4) soliciting, receiving or making any contribution

72 | P a g e
prohibited under Sections 89, 95, 96, 97 and 104 of the OEC; and (5) violating Sections 80, 83,
85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6 of the OEC. Accordingly, the same
provision (Section 68) states that any candidate who, in an action or protest in which he or she
is a party, is declared by final decision of a competent court guilty of, or found by the COMELEC
to have committed any of the foregoing acts shall be disqualified from continuing as a candidate
for public office, or disallowed from holding the same, if he or she had already been elected.

It must be stressed that one who is disqualified under Section 68 is still technically
considered to have been a candidate, albeit proscribed to continue as such only because of
supervening infractions which do not, however, deny his or her statutory eligibility. In other
words, while the candidate's compliance with the eligibility requirements as prescribed by law,
such as age, residency, and citizenship, is not in question, he or she is, however, ordered to
discontinue such candidacy as a form of penal sanction brought by the commission of the above-
mentioned election offenses.

On the other hand, a denial of due course to and/or cancellation of a CoC proceeding
under Section 78 of the OEC is premised on a person's misrepresentation of any of the material
qualifications required for the elective office aspired for. It is not enough that a person lacks the
relevant qualification; he or she must have also made a false representation of the same in the
CoC. The nature of a Section 78 petition was discussed in the case of Fermin v. COMELEC,
where the Court illumined:
Let it be misunderstood, the denial of due course to or the cancellation of the CoC
is not based on the lack of qualifications but on a finding that the candidate made a
material representation that is false, which may relate to the qualifications required of the
public office he/she is running for. It is noted that the candidates states in his/her CoC that
he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read
in relation to the constitutional and statutory provisions on qualifications or eligibility for
public office. If the candidate subsequently states a material representation in the CoC that
is false, the COMELEC, following the law, is empowered to deny due course to or cancel
such certificate. xxx

xxxx

Pertinently, while a disqualified candidate under Section 68 is still considered to have

been a candidate for all intents and purposes, on the other hand, a person whose CoC had been
denied due course to and/or cancelled under Section 78 is deemed to have not been a candidate
at all. The reason being is that a cancelled CoC is considered void ab initio and thus, cannot give
rise to a valid candidacy and necessarily, to valid votes. In Talaga v. COMELEC (Talaga), the
Court ruled that:
x x x While a person who is disqualified under Section 68 is merely prohibited to
continue as a candidate, a person who certificate is cancelled or denied due course under
Section 78 is not treated as a candidate at all, as if he/she never filed a CoC.

(Tagolino v. House of Representatives, G.R. No. 202202, March 19, 2013)

Rule of succession in case a certificate of candidacy is void ab initio: The

person legally entitled to the vacant position would be the candidate who garnered
the next highest number of votes among those eligible.

Petitioner, however, argues that the Commission on Elections gravely abused its
discretion in proclaiming private respondent Bacani, the mere seventh placer among the
candidates for Councilor and, therefore, not the electorate’s choice. Petitioner maintains that the
vacancy left by her disqualification should be filled according to the rule on succession under
Section 45(a)(1) of the Local Government Code, xxx

The permanent vacancies referred to in Section 45 are those arising "when an elective
local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed
from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the
functions of his office." In these situations, the vacancies were caused by those whose certificates
of candidacy were valid at the time of the filing "but subsequently had to be cancelled because of
a violation of law that took place, or a legal impediment that took effect, after the filing of the
certificate of candidacy."

The rule on succession under Section 45, however, would not apply if the
permanent vacancy was caused by one whose certificate of candidacy was void ab
initio. Specifically with respect to dual citizens, their certificates of candidacy are void ab initio
73 | P a g e
because they possess "a substantive [disqualifying circumstance] . . . [existing] prior to the filing
of their certificate of candidacy." Legally, they should not even be considered candidates. The
votes casted for them should be considered stray and should not be counted.

In cases of vacancies caused by those with void ab initio certificates of

candidacy, the person legally entitled to the vacant position would be the candidate
who garnered the next highest number of votes among those eligible. In this case, it
is private respondent Bacani who is legally entitled to the position of Councilor, having garnered
the sixth highest number of votes among the eligible candidates. The Commission on Elections
correctly proclaimed private respondent Bacani in lieu of petitioner. (Chua v. Comelec, G.R. No.
216607, April 5, 2016) (Emphases supplied)

Effect of cancellation of or denial of due course to a CoC: No valid candidate,

no valid substitution.

Section 77 of the OEC provides that if an official candidate of a registered or accredited

political party dies, withdraws or is disqualified for any cause, a person belonging to and
certified by the same political party may file a CoC to replace the candidate who died, withdrew
or was disqualified.

Evidently, Section 77 requires that there be an "official candidate" before candidate

substitution proceeds.

The law requires that one must have validly filed a CoC in order to be considered a
candidate. The requirement of having a CoC obtains even greater importance if one considers its
nature. In particular, a CoC formalizes not only a person’s public declaration to run for office but
evidences as well his or her statutory eligibility to be elected for the said post.

In this regard, the CoC is the document which formally accords upon a person the status
of a candidate. In other words, absent a valid CoC one is not considered a candidate under legal
contemplation.

If a person’s CoC had been denied due course to and/or cancelled, he or she cannot be
validly substituted in the electoral process. The existence of a valid CoC is therefore a condition
sine qua non for a disqualified candidate to be validly substituted.

As explained in the case of Miranda v. Abaya, a candidate who is disqualified under

Section 68 can be validly substituted pursuant to Section 77 because he remains a candidate
until disqualified; but a person whose CoC has been denied due course to and/or cancelled
under Section 78 cannot be substituted because he is not considered a candidate. Stated
differently, since there would be no candidate to speak of under a denial of due course to and/or
cancellation of a CoC case, then there would be no candidate to be substituted; the same does
not obtain, however, in a disqualification case since there remains to be a candidate to be
substituted, although his or her candidacy is discontinued. (Tagolino v. House of
Representatives, G.R. No. 202202, March 19, 2013)

An allegedly false nickname in the CoC is not a “material misrepresentation”

that is a ground to cancel or deny due course to a CoC under Section 78.

Petitioner filed the petition under Section 78 of the Omnibus Election Code claiming that
respondent committed material misrepresentation when the latter declared in his COC that his
name/nickname to be printed in the official ballot was VILLAFUERTE, LRAY JR.-MIGZ instead
of his baptismal name, VILLAFUERTE, MIGUEL-MIGZ.

Section 78 states that the false representation in the contents of the COC required under
Section 74 must refer to material matters in order to justify the cancellation of the COC.

The material misrepresentation contemplated by Section 78 of the Code refer to

qualifications for elective office.

Aside from the requirement of materiality, a false representation under Section 78 must
consist of a "deliberate attempt to mislead, misinform, or hide a fact which would otherwise
render a candidate ineligible." In other words, it must be made with an intention to deceive the
electorate as to one’s qualifications for public office. The use of surname, when not intended to
mislead, or deceive the public as to one's identity is not within the scope of the provision.

74 | P a g e
 In Aratea v. Commission on Elections, we proclaimed Estela D. Antipolo, the alleged
second placer, as Mayor of San Antonio, Zambales, being the one who remained as the sole
qualified candidate for the mayoralty post and obtained the highest number of votes, since the
COC of Romeo D. Lonzanida, the first placer, was declared void ab initio. We find that violation
of the three-term limit is an eligibility affecting the qualification of a candidate to elective office
and the misrepresentation of such is a ground to grant the petition to deny due course or cancel
a COC. We said that:

Section 74 requires the candidate to certify that he is eligible for the public office he
seeks election. Thus, Section 74 states that "the certificate of candidacy shall state that the
person filing x x x is eligible for said office." After being elected and serving for three consecutive
terms, an elective local official cannot seek immediate reelection for the same office in the next
regular election because he is ineligible. One who has an ineligibility to run for elective public
office is not "eligible for [the] office." As used in Section 74, the word "eligible" means having the
right to run for elective public office, that is, having all the qualifications and none of the
ineligibilities to run for the public office.

Thus, Lonzanida’s representation that he was eligible for the office that he sought
election constitutes false material representation as to his qualification or eligibility for the
office.

The use of a name other than that stated in the certificate of birth is not a material
misrepresentation, as "material misrepresentation" under the earlier-quoted Section 78 of the
Omnibus Election Code refers to "qualifications for elective office."

Clearly, for the petition to deny due course or cancel the COC of one candidate to
prosper, the candidate must have made a material misrepresentation involving his eligibility or
qualification for the office to which he seeks election, such as the requisite residency, age,
citizenship or any other legal qualification necessary to run for local elective office as provided in
the Local Government Code. Hence, petitioner’s allegation that respondent’s nickname "LRAY
JR. MIGZ" written in his COC is a material misrepresentation is devoid of merit. Respondent's
nickname written in the COC cannot be considered a material fact which pertains to his
eligibility and thus qualification to run for public office.

Moreover, the false representation under Section 78 must consist of a deliberate attempt
to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. As we
said, respondent's nickname is not considered a material fact, and there is no substantial
evidence showing that in writing the nickname "LRAY JR. MIGZ" in his COC, respondent had
the intention to deceive the voters as to his identity which has an effect on his eligibility or
qualification for the office he seeks to assume. (Villafuerte v. Comelec, 25 February 2014)

Stating under oath in the CoC that one is eligible to run for public office, when
one is not, is a false material misrepresentation.

Under the rules, a statement in a certificate of candidacy claiming that a candidate is

eligible to run for public office when in truth he is not, is a false material representation, a
ground for a petition under Section 78 of the Omnibus Election Code.

Section 74 requires the candidate to state under oath in his CoC "that he is eligible for
said office." A candidate is eligible if he has a right to run for the public office. If a candidate is
not actually eligible because he is not a registered voter in the municipality where he intends to
be elected, but still he states under oath in his certificate of candidacy that he is eligible to run
for public office, then the candidate clearly makes a false material representation, a ground to
support a petition under Section 78.

It is interesting to note that Hayudini was, in fact, initially excluded by the ERB as a
voter. On November 30, 2012, the ERB issued a certificate confirming the disapproval of
Hayudini’s petition for registration. Hence, the COMELEC was accurate in cancelling
Hayudini’s certificate of candidacy. (Hayudini v. Commission on Elections, G.R. No. 207900,
April 22, 2014)

COMELEC's jurisdiction to deny due course and cancel a CoC for material
misrepresentation continues even after election and proclamation, except in the
cases of congressional and senatorial candidates.

75 | P a g e
 Hayudini protests that it was a grave error on the part of the COMELEC to have declared
his proclamation null and void when no petition for annulment of his proclamation was ever
filed. What petitioner seems to miss, however, is that the nullification of his proclamation as a
winning candidate is also a legitimate outcome − a necessary legal consequence − of the
cancellation of his CoC pursuant to Section 78. A CoC cancellation proceeding essentially
partakes of the nature of a disqualification case.

The cancellation of a CoC essentially renders the votes cast for the candidate whose
certificate of candidacy has been cancelled as stray votes. If the disqualification or CoC
cancellation or denial case is not resolved before the election day, the proceedings shall continue
even after the election and the proclamation of the winner. Meanwhile, the candidate may be
voted for and even be proclaimed as the winner, but the COMELEC's jurisdiction to deny due
course and cancel his or her CoC continues. This rule likewise applies even if the candidate
facing disqualification has already taken his oath of office. The only exception to this rule is in
the case of congressional and senatorial candidates where the COMELEC ipso jure loses
jurisdiction in favor of either the Senate or the House of Representatives Electoral Tribunal after
the candidates have been proclaimed, taken the proper oath, and also assumed office. (Hayudini
v. Commission on Elections, G.R. No. 207900, April 22, 2014)

Opportunity to be heard is required before cancellation of or denial of due

course to a CoC.

In declaring that Kimberly, being under age, could not be considered to have filed a valid
COC and, thus, could not be validly substituted by Olivia, we find that the Comelec gravely
abused its discretion.

Firstly, subject to its authority over nuisance candidates and its power to deny due
course to or cancel COCs under Sec. 78, Batas Pambansa (B.P.) Blg. 881, the Comelec has the
ministerial duty to receive and acknowledge receipt of COCs.

In Cipriano v. Comelec, we ruled that the Comelec has no discretion to give or not to give
due course to COCs. We emphasized that the duty of the Comelec to give due course to COCs
filed in due form is ministerial in character, and that while the Comelec may look into patent
defects in the COCs, it may not go into matters not appearing on their face. The question of
eligibility or ineligibility of a candidate is thus beyond the usual and proper cognizance of the
Comelec. (Cerafica v. Commission on Elections, G.R. No. 205136, December 2, 2014)

For cancellation of/denial of due course to a CoC for material

misrepresentation, there must be a verified petition.

The COMELEC acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in declaring that Hans Roger, being under age, could not be considered to have filed
a valid certificate of candidacy and, thus, could not be validly substituted by Luna. The
COMELEC may not, by itself, without the proper proceedings, deny due course to or cancel a
certificate of candidacy filed in due form. In Sanchez vs. Del Rosario, the Court ruled that the
question of eligibility or ineligibility of a candidate for non-age is beyond the usual and proper
cognizance of the COMELEC.

If Hans Roger made a material misrepresentation as to his date of birth or age in his
certificate of candidacy, his eligibility may only be impugned through a verified petition to deny
due course to or cancel such certificate of candidacy under Section 78 of the Election Code.

In this case, there was no petition to deny due course to or cancel the certificate of
candidacy of Hans Roger. The COMELEC only declared that Hans Roger did not file a valid
certificate of candidacy and, thus, was not a valid candidate in the petition to deny due course to
or cancel Luna’s certificate of candidacy. In effect, the COMELEC, without the proper
proceedings, cancelled Hans Roger’s certificate of candidacy and declared the substitution by
Luna invalid. (Cerafica v. Commission on Elections, G.R. No. 205136, December 2, 2014)

Cancellation of CoCs: In the exercise of quasi-judicial functions of the

Comelec, the Comelec in Division should first decide the case.

The Court reminds the Comelec that, in the exercise of it adjudicatory or quasi-judicial
powers, the Constitution mandates it to hear and decide cases first by Division and, upon
motion for reconsideration, by the En Banc.

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 As cancellation proceedings involve the exercise of quasi-judicial functions of the
Comelec, the Comelec in Division should have first decided this case.

In Bautista v. Comelec, et al., where the Comelec Law Department recommended the
cancellation of a candidate’s COC for lack of qualification, and which recommendation was
affirmed by the Comelec En Banc, the Court held that the Comelec En Banc cannot short cut the
proceedings by acting on the case without a prior action by a division because it denies due
process to the candidate. (Cerafica v. Commission on Elections, G.R. No. 205136, December 2,
2014)

Nuisance candidates: Comelec must give the candidate opportunity to be

heard before cancellation of/denial of due course of CoC

To minimize the logistical confusion caused by nuisance candidates, their certificates of

candidacy may be denied due course or cancelled by respondent. This denial or cancellation may
be "motu proprio or upon a verified petition of an interested party," "subject to an opportunity
to be heard."

The determination whether a candidate is eligible for the position he is seeking involves
a determination of fact where both parties must be allowed to adduce evidence in support of
their contentions. Because the resolution of such fact may result to a deprivation of one’s right to
run for public office, or, as in this case, one’s right to hold public office, it is only proper and fair
that the candidate concerned be notified of the proceedings against him and that he be given the
opportunity to refute the allegations against him. (Timbol v. Comelec, G.R. No. 206004,
February 24, 2015)

PARTY-LIST ELECTIONS

New parameters for party-list elections: Not all party-list groups must
represent the marginalized and underrepresented sectors. National or regional
parties or organizations, and sectoral parties or organizations that lack "well-
defined political constituencies" (such as professionals, the elderly, women, and the
youth groups) -- do not need to represent the "marginalized and underrepresented."

In determining who may participate in the coming 13 May 2013 and subsequent party-
list elections, the COMELEC shall adhere to the following parameters:

1. Three different groups may participate in the party-list system: (1) national parties or
organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations.

2. National parties or organizations and regional parties or organizations do not need to

organize along sectoral lines and do not need to represent any "marginalized and
underrepresented" sector.

3. Political parties can participate in party-list elections provided they register under the
party-list system and do not field candidates in legislative district elections. A political party,
whether major or not, that fields candidates in legislative district elections can participate in
party-list elections only through its sectoral wing that can separately register under the party-list
system. The sectoral wing is by itself an independent sectoral party, and is linked to a political
party through a coalition.

4. Sectoral parties or organizations may either be "marginalized and underrepresented"

or lacking in "well-defined political constituencies." It is enough that their principal advocacy
pertains to the special interest and concerns of their sector. The sectors that are "marginalized
and underrepresented" include labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, and overseas workers. The sectors that lack "well-defined
political constituencies" include professionals, the elderly, women, and the youth.

5. A majority of the members of sectoral parties or organizations that represent the

"marginalized and underrepresented" must belong to the "marginalized and underrepresented"
sector they represent. Similarly, a majority of the members of sectoral parties or organizations
that lack "well-defined political constituencies" must belong to the sector they represent. The
nominees of sectoral parties or organizations that represent the "marginalized and
underrepresented," or that represent those who lack "well-defined political constituencies,"
either must belong to their respective sectors, or must have a track record of advocacy for their

77 | P a g e
respective sectors. The nominees of national and regional parties or organizations must be
bona-fide members of such parties or organizations.

6. National, regional, and sectoral parties or organizations shall not be disqualified if

some of their nominees are disqualified, provided that they have at least one nominee who
remains qualified.

The COMELEC excluded from participating in the 13 May 2013 party-list elections those
that did not satisfy these two criteria: (1) all national, regional, and sectoral groups or
organizations must represent the "marginalized and underrepresented" sectors, and (2) all
nominees must belong to the "marginalized and underrepresented" sector they represent. As
discussed above, the disqualification of petitioners, and their nominees, under such
circumstances is contrary to the 1987 Constitution and R.A. No. 7941. (Atong Paglaum v
Comelec, G.R. No. 203766, April 2, 2013)

The disqualification for failure to garner 2% party-list votes in two preceding

elections should now be understood, in light of the Banat ruling, to mean failure to
qualify for a party-list seat in two preceding elections for the constituency in which
it has registered.

For the upcoming May 2010 elections, the COMELEC en banc issued on October 13,
2009 Resolution No. 8679 deleting several party-list groups or organizations from the list of
registered national, regional or sectoral parties, organizations or coalitions. Among the party-list
organizations affected was PGBI; it was delisted because it failed to get 2% of the votes cast in
2004 and it did not participate in the 2007 elections. x x x

xxx

PGBI came to us in its petition for certiorari, arguing the same positions it raised with
the COMELEC when it moved to reconsider its delisting.

We initially dismissed the petition in light of our ruling in Philippine Mines Safety
Environment Association, also known as "MINERO" v. Commission on Elections (Minero); we
said that no grave abuse of discretion exists in a ruling that correctly applies the prevailing law
and jurisprudence. Applying Section 6(8) of RA 7941, the Court disqualified MINERO under the
following reasoning:
Since petitioner by its own admission failed to get 2% of the votes in 2001 and did
not participate at all in the 2004 elections, it necessarily failed to get at least two per
centum (2%) of the votes cast in the two preceding elections. COMELEC, therefore, is not
duty bound to certify it.

PGBI subsequently moved to reconsider the dismissal of its petition. x x x

PGBI thus asserts that Section 6(8) does not apply to its situation, as it is obvious that it
failed to participate in one (1) but not in the two (2) preceding elections. Implied in this is that it
also failed to secure the required percentage in one (1) but not in the two (2) preceding elections.

xxx

We find the petition partly impressed with merit.

a. The Minero Ruling

Our Minero ruling is an erroneous application of Section 6(8) of RA 7941; hence, it

cannot sustain PGBI’s delisting from the roster of registered national, regional or sectoral
parties, organizations or coalitions under the party-list system.

First, the law is clear – the COMELEC may motu proprio or upon verified complaint of
any interested party, remove or cancel, after due notice and hearing, the registration of any
national, regional or sectoral party, organization or coalition if it: (a) fails to participate in the
last two (2) preceding elections; or (b) fails to obtain at least two per centum (2%) of the votes
cast under the party-list system in the two (2) preceding elections for the constituency in which
it has registered. The word "or" is a disjunctive term signifying disassociation and independence
of one thing from the other things enumerated; it should, as a rule, be construed in the sense in
which it ordinarily implies, as a disjunctive word. Thus, the plain, clear and unmistakable
language of the law provides for two (2) separate reasons for delisting.

Second, Minero is diametrically opposed to the legislative intent of Section 6(8) of RA

7941, as PGBI’s cited congressional deliberations clearly show.
78 | P a g e
 Minero therefore simply cannot stand. Its basic defect lies in its characterization of the
non-participation of a party-list organization in an election as similar to a failure to garner the
2% threshold party-list vote. x x x

What we say here should of course take into account our ruling in Barangay Association
for Advancement and National Transparency v. COMELEC (Banat) where we partly
invalidated the 2% party-list vote requirement provided in RA 7941 as follows:
We rule that, in computing the allocation of additional seats, the continued
operation of the two percent threshold for the distribution of the additional seats as found
in the second clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds
that the two percent threshold makes it mathematically impossible to achieve the
maximum number of available party list seats when the number of available party list
seats exceeds 50. The continued operation of the two percent threshold in the distribution
of the additional seats frustrates the attainment of the permissive ceiling that 20% of the
members of the House of Representatives shall consist of party-list representatives.

The disqualification for failure to get 2% party-list votes in two (2) preceding elections
should therefore be understood in light of the Banat ruling that party-list groups or
organizations garnering less than 2% of the party-list votes may yet qualify for a seat in the
allocation of additional seats.

xxx

To reiterate, (a) Section 6(8) of RA 7941 provides for two separate grounds for delisting;
these grounds cannot be mixed or combined to support delisting; and (b) the disqualification for
failure to garner 2% party-list votes in two preceding elections should now be understood, in
light of the Banat ruling, to mean failure to qualify for a party-list seat in two preceding elections
for the constituency in which it has registered. This, we declare, is how Section 6(8) of RA 7941
should be understood and applied. We do so under our authority to state what the law is, and as
an exception to the application of the principle of stare decisis. (Philippine Guardians
Brotherhood, Inc. v. Commission on Elections, G.R. No. 190529, April 29, 2010)

CITIZENSHIP REQUIREMENT FOR ELECTION

Natural-born Filipinos, who have been naturalized as citizens of a foreign

country, but who reacquired or retained their Philippine citizenship must (1) take
the oath of allegiance under RA 9225, and (2) for those seeking elective public
offices in the Philippines, to additionally execute a personal and sworn renunciation
of any and all foreign citizenship before an authorized public officer prior or
simultaneous to the filing of their certificates of candidacy, to qualify as candidates
in Philippine elections

R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship for natural-
born citizens who have lost their Philippine citizenship by taking an oath of allegiance to the
Republic, thus:

Section 3. Retention of Philippine Citizenship. – Any provision of law to the contrary

notwithstanding, natural-born citizens of the Philippines who have lost their Philippine
citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to
have re-acquired Philippine citizenship upon taking the following oath of allegiance to the
Republic:

"I, _____________________, solemnly swear (or affirm) that I will support and
defend the Constitution of the Republic of the Philippines and obey the laws and legal orders
promulgated by the duly constituted authorities of the Philippines; and I hereby declare that I
recognize and accept the supreme authority of the Philippines and will maintain true faith and
allegiance thereto; and that I imposed this obligation upon myself voluntarily without mental
reservation or purpose of evasion."

Natural-born citizens of the Philippines who, after the effectivity of this Act, become
citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid
oath.

The oath is an abbreviated repatriation process that restores one’s Filipino citizenship
and all civil and political rights and obligations concomitant therewith, subject to certain
conditions imposed in Section 5, viz:

79 | P a g e
 Sec. 5. Civil and Political Rights and Liabilities. – Those who retain or re-acquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all
attendant liabilities and responsibilities under existing laws of the Philippines and the following
conditions:

(1) Those intending to exercise their right of suffrage must meet the requirements under
Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas
Absentee Voting Act of 2003" and other existing laws;

(2) Those seeking elective public office in the Philippines shall meet the qualification for
holding such public office as required by the Constitution and existing laws and, at the time of the
filing of the certificate of candidacy, make a personal and sworn renunciation of any and all
foreign citizenship before any public officer authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance
to the Republic of the Philippines and its duly constituted authorities prior to their assumption of
office: Provided, That they renounce their oath of allegiance to the country where they took that
oath;

(4) Those intending to practice their profession in the Philippines shall apply with the
proper authority for a license or permit to engage in such practice; and

(5) That right to vote or be elected or appointed to any public office in the Philippines
cannot be exercised by, or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which they are
naturalized citizens; and/or

(b) are in active service as commissioned or non-commissioned officers in the armed

forces of the country which they are naturalized citizens. (Sobejana-Condon v. Commission on
Elections, G.R. No. 198742, August 10, 2012)

Under the provisions of the aforementioned law, the petitioner has validly re-acquired
her Filipino citizenship when she took an Oath of Allegiance to the Republic of the Philippines
on December 5, 2005. At that point, she held dual citizenship, i.e., Australian and Philippine.

On September 18, 2006, or a year before she initially sought elective public office, she
filed a renunciation of Australian citizenship in Canberra, Australia. Admittedly, however, the
same was not under oath contrary to the exact mandate of Section 5(2) that the renunciation of
foreign citizenship must be sworn before an officer authorized to administer oath.

xxx

The law categorically requires persons seeking elective public office, who either retained
their Philippine citizenship or those who reacquired it, to make a personal and sworn
renunciation of any and all foreign citizenship before a public officer authorized to administer
an oath simultaneous with or before the filing of the certificate of candidacy.

Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have
been naturalized as citizens of a foreign country, but who reacquired or retained their Philippine
citizenship (1) to take the oath of allegiance under Section 3 of Republic Act No. 9225, and (2)
for those seeking elective public offices in the Philippines, to additionally execute a personal and
sworn renunciation of any and all foreign citizenship before an authorized public officer prior or
simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine
elections. (Sobejana-Condon v. Commission on Elections, G.R. No. 198742, August 10, 2012)

To qualify as a candidate in Philippine elections, person who reacquired or

retained his Philippine citizenship under Republic Act No. 9225 must make a
personal and sworn renunciation of his foreign citizenship, if he wishes to run for
elective posts in the Philippines.

The intent of the legislators was not only for Filipinos reacquiring or retaining their
Philippine citizenship under Republic Act No. 9225 to take their oath of allegiance to the
Republic of the Philippines, but also to explicitly renounce their foreign citizenship if they wish
to run for elective posts in the Philippines. To qualify as a candidate in Philippine elections,
Filipinos must only have one citizenship, namely, Philippine citizenship.

Hence, in De Guzman v. COMELEC, we declared petitioner therein to be disqualified

from running for the position of vice-mayor for his failure to make a personal and sworn
renunciation of his American citizenship.

xxx
80 | P a g e
 Indeed, the solemn promise, and the risk of punishment attached to an oath ensures
truthfulness to the prospective public officer’s abandonment of his adopted state and promise of
absolute allegiance and loyalty to the Republic of the Philippines.

xxx

In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their
citizenship and seek elective office, to execute a personal and sworn renunciation of any and all
foreign citizenships before an authorized public officer prior to or simultaneous to the filing of
their certificates of candidacy, to qualify as candidates in Philippine elections. The rule applies
to all those who have re-acquired their Filipino citizenship, like petitioner, without regard as to
whether they are still dual citizens or not. It is a pre-requisite imposed for the exercise of the
right to run for public office.

Stated differently, it is an additional qualification for elective office specific only to

Filipino citizens who re-acquire their citizenship under Section 3 of R.A. No. 9225. It is the
operative act that restores their right to run for public office. The petitioner's failure to comply
therewith in accordance with the exact tenor of the law, rendered ineffectual the Declaration of
Renunciation of Australian Citizenship she executed on September 18, 2006. As such, she is yet
to regain her political right to seek elective office. Unless she executes a sworn renunciation of
her Australian citizenship, she is ineligible to run for and hold any elective office in the
Philippines. (Sobejana-Condon v. Commission on Elections, G.R. No. 198742, August 10, 2012)

A candidate for public office cannot claim that he has renounced his foreign
citizenship by taking the Oath of Allegiance. The oath of allegiance and the sworn
and personal renunciation of foreign citizenship are separate requirements, the
latter being an additional requirement for qualification to run for public office.

Petitioner was born to Filipino parents in 1967, which makes her a natural-born Filipino
under the 1935 Constitution. Ten years later, on December 7, 1977, petitioner became a
naturalized American. Hence, she lost her Filipino citizenship pursuant to Section 1 of
Commonwealth Act No. 63.

It was on September 21, 2011 when petitioner took an Oath of Allegiance to the Republic
of the Philippines, thus reacquiring her Filipino citizenship. From September 21, 2011 up to the
present, however, petitioner failed to execute a sworn and personal renunciation of her foreign
citizenship particularly required of those seeking elective public office. Section 5(2) of the
Citizenship Retention and Re-acquisition Act of 2003 provides:

SECTION 5. Civil and Political Rights and Liabilities. – Those who retain or re-
acquire Philippine citizenship under this Act shall enjoy full civil and political rights and
be subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:
....
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and existing
laws and, at the time of the filing of the certificate of candidacy, make a personal and
sworn renunciation of any and all foreign citizenship before any public officer authorized
to administer an oath[.]

Petitioner cannot claim that she has renounced her American citizenship by taking the
Oath of Allegiance. The oath of allegiance and the sworn and personal renunciation of foreign
citizenship are separate requirements, the latter being an additional requirement for
qualification to run for public office. In Jacot v. Dal:

[T]he oath of allegiance contained in the Certificate of Candidacy, which is

substantially similar to the one contained in Section 3 of Republic Act No. 9225, does not
constitute the personal and sworn renunciation sought under Section 5(2) of Republic Act
No. 9225. It bears to emphasize that the said oath of allegiance is a general requirement
for all those who wish to run as candidates in Philippine elections; while the renunciation
of foreign citizenship is an additional requisite only for those who have retained or
reacquired Philippine citizenship under Republic Act No. 9225 and who seek elective
public posts, considering their special circumstance of having more than one citizenship.

With petitioner’s failure to execute a personal and sworn renunciation of her American
citizenship, petitioner was a dual citizen at the time she filed her Certificate of Candidacy on
October 3, 2012. Under Section 40 of the Local Government Code, she was disqualified to run
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for Councilor in the Fourth District of Manila during the 2013 National and Local Elections.
(Chua v. Comelec, G.R. No. 216607, April 5, 2016)

The mere act of running for public offices does not suffice to serve as an
effective renunciation of foreign citizenship.

The petitioner’s act of running for public office does not suffice to serve as an effective
renunciation of her Australian citizenship. While this Court has previously declared that the
filing by a person with dual citizenship of a certificate of candidacy is already considered a
renunciation of foreign citizenship, such ruling was already adjudged superseded by the
enactment of R.A. No. 9225 on August 29, 2003 which provides for the additional condition of a
personal and sworn renunciation of foreign citizenship. (Sobejana-Condon v. Commission on
Elections, G.R. No. 198742, August 10, 2012)

Effect of use of foreign passport after oath of renunciation: Recantation of

oath of renunciation.

The use of foreign passport after renouncing one’s foreign citizenship is a positive and
voluntary act of representation as to one’s nationality and citizenship; it does not divest Filipino
citizenship regained by repatriation but it recants the Oath of Renunciation required to qualify
one to run for an elective position. (Maquiling v. Comelec, G.R. No. 195649, April 16, 2013)

Citizenship, being a continuing requirement for Members of the House of

Representatives, may be questioned at any time.

Citizenship, being a continuing requirement for Members of the House of

Representatives, may be questioned at any time. Courts will decide a question, otherwise moot
and academic, if it is "capable of repetition, yet evading review." The question on Limkaichong’s
citizenship is likely to recur if she would run again, as she did run, for public office, hence,
capable of repetition. (Vilando v. HRET, G.R. Nos. 192147 & 192149, August 23, 2011)

RESIDENCY REQUIREMENT FOR ELECTION

It is the fact of residence, not a statement in a certificate of candidacy which

ought to be decisive in determining whether or not an individual has satisfied the
constitutions residency qualification requirement.

To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the
COMELEC ruled that petitioner's claim of residence of ten (10) years and eleven (11) months by
9 May 2016 in her 2015 COC was false because she put six (6) years and six (6) months as
"period of residence before May 13, 2013" in her 2012 COC for Senator. Thus, according to the
COMELEC, she started being a Philippine resident only in November 2006. In doing so, the
COMELEC automatically assumed as true the statement in the 2012 COC and the 2015 COC as
false.

As explained by petitioner in her verified pleadings, she misunderstood the date required
in the 2013 COC as the period of residence as of the day she submitted that COC in 2012. She
said that she reckoned residency from April-May 2006 which was the period when the U.S.
house was sold and her husband returned to the Philippines. In that regard, she was advised by
her lawyers in 2015 that residence could be counted from 25 May 2005.

Petitioner's explanation that she misunderstood the query in 2012 (period of residence
before 13 May 2013) as inquiring about residence as of the time she submitted the COC, is
bolstered by the change which the COMELEC itself introduced in the 2015 COC which is now
"period of residence in the Philippines up to the day before May 09, 2016." The COMELEC
would not have revised the query if it did not acknowledge that the first version was vague.

xxxx

It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding
and conclusive admission against petitioner. It could be given in evidence against her, yes, but it
was by no means conclusive. There is precedent after all where a candidate's mistake as to
period of residence made in a COC was overcome by evidence. In Romualdez-Marcos v.
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COMELEC, the candidate mistakenly put seven (7) months as her period of residence where the
required period was a minimum of one year. We said that "[i]t is the fact of residence, not a
statement in a certificate of candidacy which ought to be decisive in determining whether or
not an individual has satisfied the constitutions residency qualification requirement." The
COMELEC ought to have looked at the evidence presented and see if petitioner was telling the
truth that she was in the Philippines from 24 May 2005. Had the COMELEC done its duty, it
would have seen that the 2012 COC and the 2015 COC both correctly stated the pertinent period
of residency.

xxxx

Concededly, a candidate's disqualification to run for public office does not necessarily
constitute material misrepresentation which is the sole ground for denying due course to, and
for the cancellation of, a COC. Further, as already discussed, the candidate's misrepresentation
in his COC must not only refer to a material fact (eligibility and qualifications for elective office),
but should evince a deliberate intent to mislead, misinform or hide a fact which would otherwise
render a candidate ineligible. It must be made with an intention to deceive the electorate as to
one's qualifications to run for public office.

In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good
number of evidenced dates all of which can evince animus manendi to the Philippines
and animus non revertedi to the United States of America. The veracity of the events of coming
and staying home was as much as dismissed as inconsequential, the focus having been fixed at
the petitioner's "sworn declaration in her COC for Senator" which the COMELEC said "amounts
to a declaration and therefore an admission that her residence in the Philippines only commence
sometime in November 2006"; such that "based on this declaration, [petitioner] fails to meet
the residency requirement for President." This conclusion, as already shown, ignores the
standing jurisprudence that it is the fact of residence, not the statement of the person that
determines residence for purposes of compliance with the constitutional requirement of
residency for election as President. (Poe-Llamanzares v. Comelec, G.R. No. 221697, March 8,
2016) (Underscoring supplied)

For purposes of the election laws, the requirement of residence is

synonymous with domicile, meaning that a person must not only intend to reside in
a particular place but must also have personal presence in such place coupled with
conduct indicative of such intention.

The Local Government Code requires a candidate seeking the position of provincial
governor to be a resident of the province for at least one year before the election. For purposes of
the election laws, the requirement of residence is synonymous with domicile, meaning that a
person must not only intend to reside in a particular place but must also have personal presence
in such place coupled with conduct indicative of such intention.

There is no hard and fast rule to determine a candidate’s compliance with residency
requirement since the question of residence is a question of intention. Still, jurisprudence has
laid down the following guidelines: (a) every person has a domicile or residence somewhere; (b)
where once established, that domicile remains until he acquires a new one; and (c) a person can
have but one domicile at a time.

But it is clear from the facts that Quezon City was Jalosjos’ domicile of origin, the place
of his birth. It may be taken for granted that he effectively changed his domicile from Quezon
City to Australia when he migrated there at the age of eight, acquired Australian citizenship, and
lived in that country for 26 years. Australia became his domicile by operation of law and by
choice.

On the other hand, when he came to the Philippines in November 2008 to live with his
brother in Zamboanga Sibugay, it is evident that Jalosjos did so with intent to change his
domicile for good. He left Australia, gave up his Australian citizenship, and renounced his
allegiance to that country. In addition, he reacquired his old citizenship by taking an oath of
allegiance to the Republic of the Philippines, resulting in his being issued a Certificate of
Reacquisition of Philippine Citizenship by the Bureau of Immigration. By his acts, Jalosjos
forfeited his legal right to live in Australia, clearly proving that he gave up his domicile there.
And he has since lived nowhere else except in Ipil, Zamboanga Sibugay.

To hold that Jalosjos has not establish a new domicile in Zamboanga Sibugay despite the
loss of his domicile of origin (Quezon City) and his domicile of choice and by operation of law
(Australia) would violate the settled maxim that a man must have a domicile or residence
somewhere.
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 Two. The COMELEC concluded that Jalosjos has not come to settle his domicile in Ipil
since he has merely been staying at his brother’s house. But this circumstance alone cannot
support such conclusion. Indeed, the Court has repeatedly held that a candidate is not required
to have a house in a community to establish his residence or domicile in a particular place. It is
sufficient that he should live there even if it be in a rented house or in the house of a friend or
relative. To insist that the candidate own the house where he lives would make property a
qualification for public office. What matters is that Jalosjos has proved two things: actual
physical presence in Ipil and an intention of making it his domicile. (Jalosjos v. Commission on
Elections, G.R. No. 191970, April 24, 2012)

Change of residence requirements: 1) bodily presence in the new locality; 2)

an intention to remain there; 3) an intention to abandon the old domicile.
Ownership of a house does not necessarily establish domicile.

When it comes to the qualifications for running for public office, residence is
synonymous with domicile. Accordingly, Nuval v. Guray held as follows:
The term residence as so used, is synonymous with domicile which imports not
only intention to reside in a fixed place, but also personal presence in that place, coupled
with conduct indicative of such intention.

There are three requisites for a person to acquire a new domicile by choice. First,
residence or bodily presence in the new locality. Second, an intention to remain there.
Third, an intention to abandon the old domicile.

There are three requisites for a person to acquire a new domicile by choice.
First, residence or bodily presence in the new locality. Second, an intention to remain
there. Third, an intention to abandon the old domicile.

These circumstances must be established by clear and positive proof, as held

in Romualdez-Marcos v. COMELEC and subsequently in Dumpit- Michelena v. Boado:

In the absence of clear and positive proof based on these criteria, the residence of
origin should be deemed to continue. xxx

Moreover, even if these requisites are established by clear and positive proof, the date of
acquisition of the domicile of choice, or the critical date, must also be established to be within at
least one year prior to the elections using the same standard of evidence.

xxxx

Assuming that the claim of property ownership of petitioner is true, Fernandez v.

COMELEC has established that the ownership of a house or some other property does not
establish domicile. This principle is especially true in this case as petitioner has failed to
establish her bodily presence in the locality and her intent to stay there at least a year before the
elections, to wit:
To use ownership of property in the district as the determinative indicium of
permanence of domicile or residence implies that the landed can establish compliance with
the residency requirement. This Court would be, in effect, imposing a property requirement
to the right to hold public office, which property requirement would be unconstitutional.

Finally, the approval of the application for registration of petitioner as a voter only
shows, at most, that she had met the minimum residency requirement as a voter. This minimum
requirement is different from that for acquiring a new domicile of choice for the purpose of
running for public office. (Jalosjos v. Comelec, G.R. No. 193314, February 26, 2013)

A candidate is not required to have a house in a community to establish his

residence or domicile in a particular place. It is sufficient that he should live there
even if it be in a rented house or in the house of a friend or relative. To insist that
the candidate own the house where he lives would make property a qualification for
public office.

The COMELEC concluded that Jalosjos has not come to settle his domicile in Ipil since
he has merely been staying at his brother’s house. But this circumstance alone cannot support
such conclusion. Indeed, the Court has repeatedly held that a candidate is not required to have a
house in a community to establish his residence or domicile in a particular place. It is sufficient
84 | P a g e
that he should live there even if it be in a rented house or in the house of a friend or relative. To
insist that the candidate own the house where he lives would make property a qualification for
public office. What matters is that Jalosjos has proved two things: actual physical presence in
Ipil and an intention of making it his domicile. (Jalosjos v. Comelec, G.R. No. 191970, April 24,
2012)

Similarly, the fact that Osmeña has no registered property under his name does not belie
his actual residence in Toledo City because property ownership is not among the qualifications
required of candidates for local election. It is enough that he should live in the locality, even in a
rented house or that of a friend or relative. To use ownership of property in the district as the
determinative indicium of permanence of domicile or residence implies that only the landed can
establish compliance with the residency requirement. In Perez v. COMELEC, we sustained the
COMELEC when it considered as evidence tending to establish a candidate’s domicile of choice
the mere lease (rather than ownership) of an apartment by a candidate in the same province
where he ran for the position of governor. (Jalover v. Osmena, G.R. No. 209286, September 23,
2014)

The law does not require a person to be in his home twenty-four (24) hours a
day, seven (7) days a week, to fulfill the residency requirement.

To establish a new domicile of choice, personal presence in the place must be coupled
with conduct indicative of this intention. It requires not only such bodily presence in that place
but also a declared and probable intent to make it one’s fixed and permanent place of abode.

xxx

The petitioners, in the present case, largely rely on statements that Osmeña was “hardly
seen” in Toledo City, Cebu to support their claim of error of jurisdiction. These affidavits,
however, deserve little consideration and loudly speak of their inherent weakness as evidence.

The law does not require a person to be in his home twenty-four (24) hours a day, seven
(7) days a week, to fulfill the residency requirement. In Fernandez v. House Electoral Tribunal,
we ruled that the “fact that a few barangay health workers attested that they had failed to see
petitioner whenever they allegedly made the rounds in Villa de Toledo is of no moment,
especially considering that there were witnesses (including petitioner's neighbors in Villa de
Toledo) that were in turn presented by petitioner to prove that he was actually a resident of Villa
de Toledo, in the address he stated in his COC. x x x It may be that whenever these health
workers do their rounds petitioner was out of the house to attend to his own employment or
business.”

Under the circumstances, the evidence submitted by the petitioners do not conclusively
prove that Osmeña did not in fact reside in Toledo City for at least the year before election day;
most especially since the sworn statements of some Toledo City residents attesting that they
never saw Osmeña in Toledo City were controverted by similar sworn statements by other
Toledo City residents who claimed that Osmeña resided in Toledo City. (Jalover v. Osmena,
G.R. No. 209286, September 23, 2014)

Subjective non-legal standards (such as, a man of stature does not live in a
dilapidated house or a feedmill) cannot be used to determine residence.

We cannot accord credence either to the petitioners’ contention that the dilapidated
house in Ibo, Toledo City, could not serve as Osmeña’s residence in view of the latter’s stature.
xxxx Moreover, the petitioners’ speculation involves the use of subjective non-legal standards,
which we previously condemned in the case of Mitra v. Commission on Elections. In Mitra, we
pronounced:
The respondents significantly ask us in this case to adopt the same faulty approach
of using subjective norms, as they now argue that given his stature as a member of the
prominent Mitra clan of Palawan, and as a three term congressman, it is highly incredible
that a small room in a feed mill has served as his residence since 2008.

We reject this suggested approach outright for the same reason we condemned the
COMELEC's use of subjective non-legal standards. Mitra's feed mill dwelling cannot
be considered in isolation and separately from the circumstances of his
transfer of residence, specifically, his expressed intent to transfer to a
residence outside of Puerto Princesa City to make him eligible to run for a
provincial position; his preparatory moves starting in early 2008; his initial
transfer through a leased dwelling; the purchase of a lot for his permanent

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 home; and the construction of a house in this lot that, parenthetically, is
adjacent to the premises he leased pending the completion of his house. These
incremental moves do not offend reason at all, in the way that the COMELEC's highly
subjective non-legal standards do. (Emphasis ours)

Osmeña’s actual physical presence in Toledo City is established not only by the presence
of a place (Ibo, Toledo City, house and lot) he can actually live in, but also the affidavits of
various persons in Toledo City. Osmeña’s substantial and real interest in establishing his
domicile of choice in Toledo City is also sufficiently shown not only by the acquisition of
additional property in the area and the transfer of his voter registration and headquarters, but
also his participation in the community’s socio-civic and political activities. (Jalover v. Osmena,
G.R. No. 209286, September 23, 2014)

Reacquisition of Philippine citizenship under RA 9225 has no retroactive

effect with respect to residence: Reacquisition of his Philippine citizenship under
Republic Act No. 9225 has no automatic impact or effect on the person’s
residence/domicile. He merely has the option to again establish his domicile in old
domicile, said place becoming his new domicile of choice. The length of his
residence therein shall be determined from the time he made it his domicile of
choice, and it shall not retroact to the time of his birth.

RA No. 9225, which is known as the Citizenship Retention and Reacquisition Act of
2003, declares that natural-born citizens of the Philippines, who have lost their Philippine
citizenship by reason of their naturalization as citizens of a foreign country, can re-acquire or
retain his Philippine citizenship under the conditions of the law. The law does not provide for
residency requirement for the reacquisition or retention of Philippine citizenship; nor does it
mention any effect of such reacquisition or retention of Philippine citizenship on the current
residence of the concerned natural-born Filipino.

RA No. 9225 treats citizenship independently of residence. xxxx However,

when a natural-born Filipino with dual citizenship seeks for an elective public office, residency
in the Philippines becomes material. Xxxx

xxxx

The term “residence” is to be understood not in its common acceptation as referring to

“dwelling” or “habitation,” but rather to “domicile” or legal residence, that is, “the place where a
party actually or constructively has his permanent home, where he, no matter where he may be
found at any given time, eventually intends to return and remain (animus manendi).” A domicile
of origin is acquired by every person at birth. It is usually the place where the child’s parents
reside and continues until the same is abandoned by acquisition of new domicile (domicile of
choice). It consists not only in the intention to reside in a fixed place but also personal presence
in that place, coupled with conduct indicative of such intention.

Petitioner was a natural born Filipino who was born and raised in Uyugan, Batanes.
Thus, it could be said that he had his domicile of origin in Uyugan, Batanes. However, he later
worked in Canada and became a Canadian citizen. In Coquilla v. COMELEC, we ruled that
naturalization in a foreign country may result in an abandonment of domicile in
the Philippines. This holds true in petitioner's case as permanent resident status in Canada is
required for the acquisition of Canadian citizenship. Hence, petitioner had effectively
abandoned his domicile in the Philippines and transferred his domicile of choice in Canada. His
frequent visits to Uyugan, Batanes during his vacation from work in Canada cannot be
considered as waiver of such abandonment.

xxxx

The next question is what is the effect of petitioner's retention of his Philippine
citizenship under RA No. 9225 on his residence or domicile?

In Japzon v. COMELEC, wherein respondent Ty reacquired his Philippine citizenship

under RA No. 9225 and run for Mayor of General Macarthur, Eastern Samar and whose
residency in the said place was put in issue, we had the occasion to state, thus:

[Petitioner’s] reacquisition of his Philippine citizenship under Republic Act No.

9225 had no automatic impact or effect on his residence/domicile. He could still retain his
domicile in the USA, and he did not necessarily regain his domicile in the Municipality of

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 General Macarthur, Eastern Samar, Philippines. Ty merely had the option to again
establish his domicile in the Municipality of General Macarthur, Eastern Samar,
Philippines, said place becoming his new domicile of choice. The length of his residence
therein shall be determined from the time he made it his domicile of choice, and it shall
not retroact to the time of his birth.xxxx

Hence, petitioner’s retention of his Philippine citizenship under RA No. 9225 did not
automatically make him regain his residence in Uyugan, Batanes. He must still prove that after
becoming a Philippine citizen on September 13, 2012, he had reestablished Uyugan, Batanes as
his new domicile of choice which is reckoned from the time he made it as such. (Caballero v.
Comelec, GR. No. 209835, September 22, 2015)

RULES ON RESOLUTION OF QUALIFICATIONS AND DISQUALIFICATIONS

The ballot cannot cure the vice of ineligibility; the ballot cannot override the
constitutional and statutory requirements for qualifications and disqualifications of
candidates.

The ballot cannot override the constitutional and statutory requirements for
qualifications and disqualifications of candidates. When the law requires certain qualifications
to be possessed or that certain disqualifications be not possessed by persons desiring to serve as
elective public officials, those qualifications must be met before one even becomes a candidate.
When a person who is not qualified is voted for and eventually garners the highest number of
votes, even the will of the electorate expressed through the ballot cannot cure the defect in the
qualifications of the candidate. To rule otherwise is to trample upon and rent asunder the very
law that sets forth the qualifications and disqualifications of candidates. We might as well write
off our election laws if the voice of the electorate is the sole determinant of who should be
proclaimed worthy to occupy elective positions in our republic.

This has been, in fact, already laid down by the Court in Frivaldo v. COMELEC when we
pronounced:
x x x. The fact that he was elected by the people of Sorsogon does not excuse this
patent violation of the salutary rule limiting public office and employment only to the
citizens of this country. The qualifications prescribed for elective office cannot be erased by
the electorate alone.

The will of the people as expressed through the ballot cannot cure the vice of
ineligibility, especially if they mistakenly believed, as in this case, that the candidate was
qualified. Obviously, this rule requires strict application when the deficiency is lack of
citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his
total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other
state. (Emphasis supplied)

(Maquiling v. Comelec, G.R. No. 195649, April 16, 2013)

Winning the elections cannot cure the defect of candidacy; disqualification is

not a matter of popularity.

The fact that petitioner won the elections cannot cure the defect of her candidacy.
Garnering the most number of votes does not validate the election of a disqualified candidate
because the application of the constitutional and statutory provisions on disqualification is not a
matter of popularity. (Sobejana-Condon v. Commission on Elections, G.R. No. 198742, August
10, 2012)

Burden of proof: To successfully challenge a winning candidate’s

qualifications, the petitioner must clearly demonstrate that the ineligibility is so
patently antagonistic to constitutional and legal principles.

We find it apt to reiterate in this regard the principle enunciated in the case of Frivaldo v.
Comelec, that "[i]n any action involving the possibility of a reversal of the popular electoral
choice, this Court must exert utmost effort to resolve the issues in a manner that would give

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effect to the will of the majority, for it is merely sound public policy to cause elective offices
to be filled by those who are the choice of the majority."

To successfully challenge a winning candidate’s qualifications, the petitioner must clearly

demonstrate that the ineligibility is so patently antagonistic to constitutional and legal principles
that overriding such ineligibility and thereby giving effect to the apparent will of the people
would ultimately create greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and promote. The reason for such
liberality stems from the recognition that laws governing election contests must be construed to
the end that the will of the people in the choice of public officials may not be defeated by mere
technical objections.

Nonetheless, we wish to remind that COC defects beyond matters of form and that
involve material misrepresentations cannot avail of the benefit of our ruling that COC
mandatory requirements before elections are considered merely directory after the people shall
have spoken. In a choice between provisions on material qualifications of elected officials, on the
one hand, and the will of the electorate in any given locality, on the other, we believe and so hold
that we cannot choose the electorate’s will.

With the conclusion that Osmeña did not commit any material misrepresentation in his
COC, we see no reason in this case to appeal to the primacy of the electorate’s will. We cannot
deny, however, that the people of Toledo City have spoken in an election where residency
qualification had been squarely raised and their voice has erased any doubt about their verdict
on Osmeña’s qualifications. (Jalover v. Osmena, G.R. No. 209286, September 23, 2014)

Rule in case of doubt as to the winning candidate’s qualification: Courts must

respect the decision of the people and resolve all doubts in favor of the people’s
manifest will.

Jalosjos won and was proclaimed winner in the 2010 gubernatorial race for Zamboanga
Sibugay. The Court will respect the decision of the people of that province and resolve all doubts
regarding his qualification in his favor to breathe life to their manifest will. (Jalosjos v. Comelec,
G.R. No. 191970, April 24, 2012)

Rule in case the evidence of the alleged lack of residence qualification is weak
or inconclusive: The will of the electorate should be respected, for the purpose of
election laws is to give effect to, rather than frustrate, the will of the voters.

xxx [W]e do not lose sight of the fact that Lipa City voters manifested their own
judgment regarding the qualifications of petitioner when they voted for him, notwithstanding
that the issue of his residency qualification had been raised prior to the elections.

In this regard, we reiterate our ruling in Frivaldo v. Commission on Elections that "(t)o
successfully challenge a winning candidate's qualifications, the petitioner must clearly
demonstrate that the ineligibility is so patently antagonistic to constitutional and legal principles
that overriding such ineligibility and thereby giving effect to the apparent will of the people,
would ultimately create greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and promote."

Similarly, in Japzon v. Commission on Elections, we concluded that "when the evidence

of the alleged lack of residence qualification of a candidate for an elective position is weak or
inconclusive and it clearly appears that the purpose of the law would not be thwarted by
upholding the victor's right to the office, the will of the electorate should be respected. For the
purpose of election laws is to give effect to, rather than frustrate, the will of the voters."

In sum, we grant the Petition not only because petitioner sufficiently established his
compliance with the one-year residency requirement for local elective officials under the law.
We also recognize that "(a)bove and beyond all, the determination of the true will of the
electorate should be paramount. It is their voice, not ours or of anyone else, that must prevail.
This, in essence, is the democracy we continue to hold sacred." (Sabili v. Commission on
Elections, G.R. No. 193261, April 24, 2012)

ANNULMENT OF ELECTIONS

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 Requisites for nullifying elections: (1) The illegality of the ballots must affect
more than fifty percent (50%) of the votes cast on the specific precinct or precincts
sought to be annulled, or in case of the entire municipality, more than fifty percent
(50%) of its total precincts and the votes cast therein; and (2) It is impossible to
distinguish with reasonable certainty between the lawful and unlawful ballots.

[T]he power to declare a failure of elections should be exercised with utmost care and
only under circumstances which demonstrate beyond doubt that the disregard of the law had
been so fundamental or so persistent and continuous that it is impossible to distinguish what
votes are lawful and what are unlawful, or to arrive at any certain result whatsoever, or that the
great body of the voters have been prevented by violence, intimidation and threats from
exercising their franchise." Consequently, a protestant alleging terrorism in an election protest
must establish by clear and convincing evidence that the will of the majority has been muted
by"violence, intimidation or threats.

xxx

There are two (2) indispensable requisites that must concur in order to justify the drastic
action of nullifying the election:

(1) The illegality of the ballots must affect more than fifty percent (50%) of the votes cast
on the specific precinct or precincts sought to be annulled, or in case of the entire
municipality, more than fifty percent (50%) of its total precincts and the votes cast
therein; and

(2) It is impossible to distinguish with reasonable certainty between the lawful and
unlawful ballots. (Abayon v. House of Representatives, G.R. No. 222236, May 3, 2016)

REAPPORTIONMENT: CREATION OF LEGISLATIVE DISTRICT

A city must first attain the 250,000 population, and thereafter, in the
immediately following election, such city shall have a district representative.

Petitioners, taxpayers, registered voters and residents of Malolos City, filed this petition
contending that RA 9591 is unconstitutional for failing to meet the minimum population
threshold of 250,000 for a city to merit representation in Congress as provided under Section
5(3), Article VI of the 1987 Constitution and Section 3 of the Ordinance appended to the 1987
Constitution.

xxx

The 1987 Constitution requires that for a city to have a legislative district, the city must
have "a population of at least two hundred fifty thousand." The only issue here is whether the
City of Malolos has a population of at least 250,000, whether actual or projected, for the
purpose of creating a legislative district for the City of Malolos in time for the 10 May 2010
elections.

xxx

A city that has attained a population of 250,000 is entitled to a legislative district only in
the "immediately following election." In short, a city must first attain the 250,000 population,
and thereafter, in the immediately following election, such city shall have a district
representative. There is no showing in the present case that the City of Malolos has attained or
will attain a population of 250,000, whether actual or projected, before the 10 May 2010
elections.

Clearly, there is no official record that the population of the City of Malolos will be at
least 250,000, actual or projected, prior to the 10 May 2010 elections, the immediately following
election after the supposed attainment of such population. Thus, the City of Malolos is not
qualified to have a legislative district of its own under Section 5(3), Article VI of the 1987
Constitution and Section 3 of the Ordinance appended to the 1987 Constitution. (Aldaba v.
Comelec, G.R No. 188078, January 25, 2010)

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 THREE-TERM LIMIT RULE

To constitute a disqualification to run for an elective local office, the following

requisites must concur: (1) that the official concerned has been elected for three
consecutive terms in the same local government post; and (2) that he has fully
served three consecutive terms. A mayor -- who actually held the office and
exercised his functions as mayor only after he was declared the winner in an
election protest, and thus began serving in office only during the middle of his term
-- cannot be considered to have fully served his term for purposes of the three-term
limit rule.

For four (4) successive regular elections, namely, the 2001, 2004, 2007 and 2010
national and local elections, Abundo vied for the position of municipal mayor of Viga,
Catanduanes. In both the 2001 and 2007 runs, he emerged and was proclaimed as the winning
mayoralty candidate and accordingly served the corresponding terms as mayor. In the 2004
electoral derby, however, the Viga municipal board of canvassers initially proclaimed as winner
one Jose Torres (Torres), who, in due time, performed the functions of the office of mayor.
Abundo protested Torres’ election and proclamation. Abundo was eventually declared the
winner of the 2004 mayoralty electoral contest, paving the way for his assumption of office
starting May 9, 2006 until the end of the 2004-2007 term on June 30, 2007, or for a period of a
little over one year and one month.

Then came the May 10, 2010 elections where Abundo and Torres again opposed each
other. When Abundo filed his certificate of candidacy for the mayoralty seat relative to this
electoral contest, Torres lost no time in seeking the former’s disqualification to run, the
corresponding petition xxx, predicated on the three-consecutive term limit rule. Xxx

xxx

The pivotal determinative issue then is whether the service of a term less than the full
three years by an elected official arising from his being declared as the duly elected official upon
an election protest is considered as full service of the term for purposes of the application of the
three consecutive term limit for elective local officials.

On this core issue, We find the petition meritorious. The consecutiveness of what
otherwise would have been Abundo’s three successive, continuous mayorship was effectively
broken during the 2004-2007 term when he was initially deprived of title to, and was veritably
disallowed to serve and occupy, an office to which he, after due proceedings, was eventually
declared to have been the rightful choice of the electorate.

The three-term limit rule for elective local officials, a disqualification rule, is found in
Section 8, Article X of the 1987 Constitution, which provides:

Sec. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for more
than three consecutive terms. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of his service for the full term
for which he was elected. (Emphasis supplied.)

and is reiterated in Sec. 43(b) of Republic Act No. (RA) 7160, or the Local Government
Code (LGC) of 1991, xxx.

xxx

To constitute a disqualification to run for an elective local office pursuant to the

aforequoted constitutional and statutory provisions, the following requisites must concur:
(1) that the official concerned has been elected for three consecutive terms in the same
local government post; and
(2) that he has fully served three consecutive terms.

xxx

As is clearly provided in Sec. 8, Art. X of the Constitution as well as in Sec. 43(b) of the
LGC, voluntary renunciation of the office by the incumbent elective local official for any length
of time shall NOT, in determining service for three consecutive terms, be considered an
interruption in the continuity of service for the full term for which the elective official concerned

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was elected. In Aldovino, Jr., however, the Court stated the observation that the law "does not
textually state that voluntary renunciation is the only actual interruption of service that does not
affect ‘continuity of service for a full term’ for purposes of the three-term limit rule."

As stressed in Socrates v. Commission on Elections, the principle behind the three-term

limit rule covers only consecutive terms and that what the Constitution prohibits is a
consecutive fourth term. xxx

There has, in fine, to be a break or interruption in the successive terms of the official
after his or her third term. An interruption usually occurs when the official does not seek a
fourth term, immediately following the third. Of course, the basic law is unequivocal that a
"voluntary renunciation of the office for any length of time shall NOT be considered an
interruption in the continuity of service for the full term for which the elective official concerned
was elected." This qualification was made as a deterrent against an elective local official
intending to skirt the three-term limit rule by merely resigning before his or her third term ends.
This is a voluntary interruption as distinguished from involuntary interruption which may be
brought about by certain events or causes.

xxx

To summarize, hereunder are the prevailing jurisprudence on issues affecting

consecutiveness of terms and/or involuntary interruption, viz:

1. When a permanent vacancy occurs in an elective position and the official merely
assumed the position pursuant to the rules on succession under the LGC, then his service for the
unexpired portion of the term of the replaced official cannot be treated as one full term as
contemplated under the subject constitutional and statutory provision that service cannot be
counted in the application of any term limit (Borja, Jr.). If the official runs again for the same
position he held prior to his assumption of the higher office, then his succession to said position
is by operation of law and is considered an involuntary severance or interruption (Montebon).

2. An elective official, who has served for three consecutive terms and who did not seek
the elective position for what could be his fourth term, but later won in a recall election, had an
interruption in the continuity of the official’s service. For, he had become in the interim, i.e.,
from the end of the 3rd term up to the recall election, a private citizen (Adormeo and Socrates).

3. The abolition of an elective local office due to the conversion of a municipality to a city
does not, by itself, work to interrupt the incumbent official’s continuity of service (Latasa).

4. Preventive suspension is not a term-interrupting event as the elective officer’s

continued stay and entitlement to the office remain unaffected during the period of suspension,
although he is barred from exercising the functions of his office during this period (Aldovino,
Jr.).

5. When a candidate is proclaimed as winner for an elective position and assumes office,
his term is interrupted when he loses in an election protest and is ousted from office, thus
disenabling him from serving what would otherwise be the unexpired portion of his term of
office had the protest been dismissed (Lonzanida and Dizon). The break or interruption need
not be for a full term of three years or for the major part of the 3-year term; an interruption for
any length of time, provided the cause is involuntary, is sufficient to break the continuity of
service (Socrates, citing Lonzanida).

6. When an official is defeated in an election protest and said decision becomes final
after said official had served the full term for said office, then his loss in the election contest does
not constitute an interruption since he has managed to serve the term from start to finish. His
full service, despite the defeat, should be counted in the application of term limits because the
nullification of his proclamation came after the expiration of the term (Ong and Rivera).

xxx

It bears to stress at this juncture that Abundo, for the 2004 election for the term starting
July 1, 2004 to June 30, 2007, was the duly elected mayor. xxx Accordingly, the first requisite
for the application of the disqualification rule based on the three-term limit that the official has
been elected is satisfied.

This thus brings us to the second requisite of whether or not Abundo had served for
"three consecutive terms," as the phrase is juridically understood, as mayor of Viga,

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Catanduanes immediately before the 2010 national and local elections. Subsumed to this issue is
of course the question of whether or not there was an effective involuntary interruption during
the three three-year periods, resulting in the disruption of the continuity of Abundo’s mayoralty.

The facts of the case clearly point to an involuntary interruption during the July 2004-
June 2007 term.

There can be no quibbling that, during the term 2004-2007, and with the enforcement of
the decision of the election protest in his favor, Abundo assumed the mayoralty post only on
May 9, 2006 and served the term until June 30, 2007 or for a period of a little over one year and
one month. Consequently, unlike Mayor Ong in Ong and Mayor Morales in Rivera, it cannot be
said that Mayor Abundo was able to serve fully the entire 2004-2007 term to which he was
otherwise entitled.

xxx

In the present case, during the period of one year and ten months, or from June 30,
2004 until May 8, 2006, Abundo cannot plausibly claim, even if he wanted to, that he could
hold office of the mayor as a matter of right. Neither can he assert title to the same nor serve the
functions of the said elective office. The reason is simple: during that period, title to hold such
office and the corresponding right to assume the functions thereof still belonged to his
opponent, as proclaimed election winner. Accordingly, Abundo actually held the office and
exercised the functions as mayor only upon his declaration, following the resolution of the
protest, as duly elected candidate in the May 2004 elections or for only a little over one year and
one month. Consequently, since the legally contemplated full term for local elected officials is
three (3) years, it cannot be said that Abundo fully served the term 2004-2007. The reality on
the ground is that Abundo actually served less.

Needless to stress, the almost two-year period during which Abundo’s opponent actually
served as Mayor is and ought to be considered an involuntary interruption of Abundo’s
continuity of service. An involuntary interrupted term, cannot, in the context of the
disqualification rule, be considered as one term for purposes of counting the three-term
threshold.

The notion of full service of three consecutive terms is related to the concepts of
interruption of service and voluntary renunciation of service. The word interruption means
temporary cessation, intermission or suspension. To interrupt is to obstruct, thwart or prevent.
When the Constitution and the LGC of 1991 speak of interruption, the reference is to the
obstruction to the continuance of the service by the concerned elected official by effectively
cutting short the service of a term or giving a hiatus in the occupation of the elective office. On
the other hand, the word "renunciation" connotes the idea of waiver or abandonment of a
known right. To renounce is to give up, abandon, decline or resign. Voluntary renunciation of
the office by an elective local official would thus mean to give up or abandon the title to the
office and to cut short the service of the term the concerned elected official is entitled to.

xxx

In the case at bar, respondent cannot be said to have lost his title to the office. On the
contrary, he actively sought entitlement to the office when he lodged the election protest case.
And respondent-appellant’s victory in the said case is a final confirmation that he was validly
elected for the mayoralty post of Viga, Catanduanes in 2004-2007. At most, respondent-
appellant was only unable to temporarily discharge the functions of the office to which he was
validly elected during the pendency of the election protest, but he never lost title to the said
office. (Emphasis added.)

xxx
As previously stated, the declaration of being the winner in an election protest grants the
local elected official the right to serve the unexpired portion of the term. Verily, while he was
declared winner in the protest for the mayoralty seat for the 2004-2007 term, Abundo’s full
term has been substantially reduced by the actual service rendered by his opponent (Torres).
Hence, there was actual involuntary interruption in the term of Abundo and he cannot be
considered to have served the full 2004-2007 term.

xxx

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 Aldovino Jr. cannot possibly lend support to respondent’s cause of action, or to
COMELEC’s resolution against Abundo. In Aldovino Jr., the Court succinctly defines what
temporary inability or disqualification to exercise the functions of an elective office means, thus:

On the other hand, temporary inability or disqualification to exercise the functions of an

elective post, even if involuntary, should not be considered an effective interruption of a term
because it does not involve the loss of title to office or at least an effective break from holding
office; the office holder, while retaining title, is simply barred from exercising the functions of
his office for a reason provided by law. We rule that the above pronouncement on preventive
suspension does not apply to the instant case. Verily, it is erroneous to say that Abundo merely
was temporarily unable or disqualified to exercise the functions of an elective post. For one,
during the intervening period of almost two years, reckoned from the start of the 2004-2007
term, Abundo cannot be said to have retained title to the mayoralty office as he was at that time
not the duly proclaimed winner who would have the legal right to assume and serve such
elective office. For another, not having been declared winner yet, Abundo cannot be said to have
lost title to the office since one cannot plausibly lose a title which, in the first place, he did not
have. Thus, for all intents and purposes, even if the belated declaration in the election protest
accords him title to the elective office from the start of the term, Abundo was not entitled to the
elective office until the election protest was finally resolved in his favor.

Consequently, there was a hiatus of almost two years, consisting of a break and effective
interruption of his service, until he assumed the office and served barely over a year of the
remaining term. xxxx

As aptly stated in Latasa, to be considered as interruption of service, the "law

contemplates a rest period during which the local elective official steps down from office and
ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a
particular local government unit." Applying the said principle in the present case, there is no
question that during the pendency of the election protest, Abundo ceased from exercising power
or authority over the good people of Viga, Catanduanes.

Consequently, the period during which Abundo was not serving as mayor should be
considered as a rest period or break in his service because, as earlier stated, prior to the
judgment in the election protest, it was Abundo’s opponent, Torres, who was exercising such
powers by virtue of the still then valid proclamation. (Abundo v. Comelec, G.R. No. 201716,
January 8, 2013)

Two conditions must concur for the application of the disqualification of a

candidate based on violation of the three-term limit rule, which are: (1) that the
official concerned has been elected for three consecutive terms in the same local
government post, and (2) that he has fully served three consecutive terms. A
governor who was proclaimed in March 2010 and served as such only until June 30,
did not have a complete and full service of his three-year term.

Petitioner alleges that since respondent had already been elected and had served as
Governor of Camarines Norte for three consecutive terms, i.e., 2007, 2010, and 2013, he is
proscribed from running for the same position in the 2016 elections as it would already be his
fourth consecutive term.

We are not convinced.

We held that two conditions must concur for the application of the disqualification of a
candidate based on violation of the three-term limit rule, which are: (1) that the official
concerned has been elected for three consecutive terms in the same local government post, and
(2) that he has fully served three consecutive terms.

xxx As worded, the constitutional provision fixes the term of a local elective office and
limits an elective official's stay in office to no more than three consecutive terms. x x x

Significantly, this provision refers to a "term" as a period of time - three years - during
which an official has title to office and can serve. xxxx

A later case, Gaminde v. Commission on Audit, reiterated that the term means the time
during which the officer may claim to hold office as of right, and fixes the interval after which
the several incumbents shall succeed one another.

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 In this case, while respondent ran as Governor of Camarines Norte in the 2007 elections,
he did not win as such. It was only after he filed a petition for correction of manifest error that
he was proclaimed as the duly-elected Governor. He assumed the post and served the unexpired
term of his opponent from March 22, 2010 until June 30, 2010. Consequently, he did not hold
the office for the full term of three years to which he was supposedly entitled to. Thus, such
period of time that respondent served as Governor did not constitute a complete and full service
of his term. The period when he was out of office involuntarily interrupted the continuity of his
service as Governor. As he had not fully served the 2007-2010 term, and had not been elected
for three consecutive terms as Governor, there was no violation of the three-term limit rule
when he ran again in the 2016 elections.

xxxx

Applying the foregoing in the instant case, since Respondent did not serve the full 2007-
2010 term, it cannot be considered as one term for purposes of counting the three-term
threshold. Consequently, Respondent cannot be said to have continuously served as Governor
for three consecutive terms prior to the 2016 elections. (Albania v. Comelec, June 6, 2017, G.R.
No. 226792)

The three-term limit rule must be strictly applied. In case of legislative

reapportionment, where the district is practically the same as the district that
previously elected the same candidate, the three-term limit rule applies.

A provincial board member cannot be elected and serve for more than three consecutive
terms. But then, the Court is now called upon to resolve the following questions. First. What are
the consequences to the provincial board member’s eligibility to run for the same elective
position if the legislative district, which brought him or her to office to serve the first two
consecutive terms, be reapportioned in such a way that 8 out of its 10 town constituencies are
carved out and renamed as another district? Second. Is the provincial board member’s election
to the same position for the third and fourth time, but now in representation of the renamed
district, a violation of the three-term limit rule?

xxx

In Latasa, the issue arose as a result of the conversion of a municipality into a city. The
then municipal mayor attempted to evade the application upon him of the three-term limit rule
by arguing that the position of a city mayor was not the same as the one he previously held. The
Court was not convinced and, thus, declared that there was no interruption of the incumbent
mayor’s continuity of service.

In Lonzanida, a candidate ran for the mayoralty post and won in three consecutive
elections. While serving his third term, his opponent filed an election protest. Months before the
expiration of the mayor’s third term, he was ousted from office. He ran again for the same post
in the immediately succeeding election. A petition was thereafter filed assailing his eligibility to
run as mayor on the ground of violation of the three-term limit rule. The Court ruled that the
mayor could not be considered as having served a full third term. An interruption for any length
of time, if due to an involuntary cause, is enough to break the elected official’s continuity of
service.

In Borja, the mayor of Pateros died and was succeeded in office by the vice mayor. In the
two immediately succeeding elections, the latter vied for and won the mayoralty post. When he
ran for the same position for the third time, his disqualification was sought for alleged violation
of the three-term limit rule. The Court ruled that when he assumed the position of mayor by
virtue of succession, his service should not be treated as one full term. For the disqualification to
apply, the candidate should have been thrice elected for and had served the same post
consecutively.

In Aldovino, preventive suspension was imposed upon an elected municipal councilor.

The Court ruled that the said suspension did not interrupt the elective official’s term. Although
he was barred from exercising the functions of the position during the period of suspension, his
continued stay and entitlement to the office remain unaffected.

In Bandillo, a case decided by the COMELEC, Gainza and Milaor were added to five of
the ten towns, which used to comprise Camarines Sur’s old First District, to form the new
Second District. The COMELEC declined to apply the three-term limit rule against the elected
Provincial Board member on the ground that the addition of Gainza and Milaor distinctively
created a new district, with an altered territory and constituency.

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 xxx

xxx The required gap after three consecutive elections is significant. Thus, the rule
cannot be taken with a grain of salt. Nothing less than its strict application is called for.

xxx

Reapportionment is "the realignment or change in legislative districts brought about by

changes in population and mandated by the constitutional requirement of equality of
representation." The aim of legislative apportionment is to equalize population and voting
power among districts. The basis for districting shall be the number of the inhabitants of a city
or a province and not the number of registered voters therein.

xxx

As a result of the reapportionment made by R.A. No. 9716, the old Second District of
Camarines Sur, minus only the two towns of Gainza and Milaor, is renamed as the Third
District. xxx

xxx

xxx A complete reading of R.A. No. 9716 yields no logical conclusion other than that the
lawmakers intended the old Second District to be merely renamed as the current Third District.

xxx [T]he actual difference in the population of the old Second District from that of the
current Third District amounts to less than 10% of the population of the latter. This numerical
fact renders the new Third District as essentially, although not literally, the same as the old
Second District. Hence, while Naval is correct in his argument that Sanggunian members are
elected by district, it does not alter the fact that the district which elected him for the third and
fourth time is the same one which brought him to office in 2004 and 2007.

xxx

Naval’s ineligibility to run, by reason of violation of the three-term limit rule, does not
undermine the right to equal representation of any of the districts in Camarines Sur. With or
without him, the renamed Third District, which he labels as a new set of constituents, would still
be represented, albeit by another eligible person. (Naval v. Comelec, G.R. No. 207851, July 8,
2014)

AUTOMATED ELECTIONS

Picture images of the ballots, as scanned and recorded by the PCOS, are
likewise "official ballots. The printouts thereof may be used for purposes of revision
of votes in an electoral protest.

An automated election system, or AES, is a system using appropriate technology which

has been demonstrated in the voting, counting, consolidating, canvassing, and transmission of
election result, and other electoral process. There are two types of AES identified under R.A. No.
9369: (1) paper-based election system; and (2) direct recording electronic election system. A
paper-based election system, such as the one adopted during the May 10, 2010 elections, is the
type of AES that "use paper ballots, records and counts votes, tabulates, consolidates/canvasses
and transmits electronically the results of the vote count."

The May 10, 2010 elections used a paper-based technology that allowed voters to fill out
an official paper ballot by shading the oval opposite the names of their chosen candidates. Each
voter was then required to personally feed his ballot into the Precinct Count Optical Scan
(PCOS) machine which scanned both sides of the ballots simultaneously, meaning, in just one
pass. As established during the required demo tests, the system captured the images of the
ballots in encrypted format which, when decrypted for verification, were found to be digitized
representations of the ballots cast.

We agree, therefore, with both the HRET and Panotes that the picture images of the
ballots, as scanned and recorded by the PCOS, are likewise "official ballots" that faithfully
captures in electronic form the votes cast by the voter, as defined by Section 2 (3) of R.A. No.
9369. As such, the printouts thereof are the functional equivalent of the paper ballots filled out
by the voters and, thus, may be used for purposes of revision of votes in an electoral protest.
(Vinzon’s-Chato v. House of Representatives Electoral Tribunal, G.R. No. 199149, January 22,
2013)

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 LOCAL GOVERNMENT

MEANING AND EXTENT OF LOCAL AUTONOMY

The concept of local autonomy does not imply the conversion of local
government units into "mini-states." The national government has not completely
relinquished all its powers over local governments. Only administrative powers over
local affairs are delegated to political subdivisions. Policy-setting for the entire
country still lies in the President and Congress. Thus, the national government is not
precluded from taking a direct hand in the formulation and implementation of
national social welfare programs.

In 2007, the DSWD embarked on a poverty reduction strategy with the poorest of the
poor as target beneficiaries.2 Dubbed "Ahon Pamilyang Pilipino," xxx.

xxx

This government intervention scheme, also conveniently referred to as CCTP, "provides

cash grant to extreme poor households to allow the members of the families to meet certain
human development goals."

Eligible households that are selected from priority target areas consisting of the poorest
provinces classified by the National Statistical Coordination Board (NCSB) are granted a health
assistance of P500.00/month, or P6,000.00/year, and an educational assistance of
P300.00/month for 10 months, or a total of P3,000.00/year, for each child but up to a
maximum of three children per family.xxx

xxx

Petitioners assert that giving the DSWD full control over the identification of
beneficiaries and the manner by which services are to be delivered or conditionalities are to be
complied with, instead of allocating the P21 Billion CCTP Budget directly to the LGUs that
would have enhanced its delivery of basic services, results in the "recentralization" of basic
government functions, which is contrary to the precepts of local autonomy and the avowed
policy of decentralization.

xxx

xxx [W]hile it is through a system of decentralization that the State shall promote a
more responsive and accountable local government structure, the concept of local autonomy
does not imply the conversion of local government units into "mini-states." We explained that,
with local autonomy, the Constitution did nothing more than "to break up the monopoly of the
national government over the affairs of the local government" and, thus, did not intend to sever
"the relation of partnership and interdependence between the central administration and local
government units."

In Pimentel v. Aguirre, the Court defined the extent of the local government's autonomy
in terms of its partnership with the national government in the pursuit of common national
goals, referring to such key concepts as integration and coordination. Thus:
Under the Philippine concept of local autonomy, the national government has not
completely relinquished all its powers over local governments, including autonomous
regions. Only administrative powers over local affairs are delegated to political
subdivisions. The purpose of the delegation is to make governance more directly responsive
and effective at the local levels. In turn, economic, political and social development at the
smaller political units are expected to propel social and economic growth and development.
But to enable the country to develop as a whole, the programs and policies effected locally
must be integrated and coordinated towards a common national goal. Thus, policy-setting
for the entire country still lies in the President and Congress.

Certainly, to yield unreserved power of governance to the local government unit as to

preclude any and all involvement by the national government in programs implemented in the
local level would be to shift the tide of monopolistic power to the other extreme, which would
amount to a decentralization of power explicated in Limbona v. Mangelin as beyond our
constitutional concept of autonomy, thus:
Now, autonomy is either decentralization of administration or decentralization of
power. There is decentralization of administration when the central government delegates
administrative powers to political subdivisions in order to broaden the base of government

96 | P a g e
 power and in the process to make local governments ‘more responsive and accountable’
and ‘ensure their fullest development as self-reliant communities and make them more
effective partners in the pursuit of national development and social progress.’ At the same
time, it relieves the central government of the burden of managing local affairs and enables
it to concentrate on national concerns. The President exercises ‘general supervision’ over
them, but only to ‘ensure that local affairs are administered according to law.’ He has no
control over their acts in the sense that he can substitute their judgments with his own.

Decentralization of power, on the other hand, involves an abdication of political

power in the [sic] favor of local governments [sic] units declared to be autonomous. In that
case, the autonomous government is free to chart its own destiny and shape its future with
minimum intervention from central authorities. xxx

Indeed, a complete relinquishment of central government powers on the matter of

providing basic facilities and services cannot be implied as the Local Government Code itself
weighs against it. The national government is, thus, not precluded from taking a direct hand in
the formulation and implementation of national development programs especially where it is
implemented locally in coordination with the LGUs concerned. (Pimentel v. Executive
Secretary, G.R. No. 195770, July 17, 2012)

The policy of ensuring the autonomy of local governments was not intended
to create an imperium in imperio and install intra-sovereign political subdivisions
independent of the sovereign state. Local ordinances must be inconsistent with the
laws or policy of the State. Local governments are precluded from regulating
conduct already covered by a statute involving the same subject matter. Thus, an
ordinance that seeks to control and regulate the use of ground water within a City, a
power that pertains solely to the NWRB under the Water Code – is ultra vires and
void.

The policy of ensuring the autonomy of local governments was not intended to create
an imperium in imperio and install intra-sovereign political subdivisions independent of the
sovereign state. As agents of the state, local governments should· bear in mind that the police
power devolved to them by law must be, at all times, exercised in a manner consistent with the
will of their principal.

xxxx

On May 28, 2001, the Sangguniang Panlungsod [of Batangas City] enacted the Assailed
Ordinance which requires heavy industries operating along the portions of Batangas Bay within
the territorial jurisdiction of Batangas City to construct desalination plants to facilitate the use
of seawater as coolant for their industrial facilities.

Heavy industries subject of the Assailed Ordinance had until May 28, 2006 to comply
with its provisions. Among the facilities affected by the Assailed Ordinance is PSPC's Tabangao
Refinery.

xxx

Batangas City contends that it has the legal authority to enact ordinances in the exercise
of its police power for the purpose of promoting the general welfare of its inhabitants. Thus, it
asserts that it has the power to regulate PSPC's and SPEX's right to use ground water, as
continued use would be injurious to public interest.

Further, Batangas City insists that there is factual basis to justify the enactment of the
Assailed Ordinance. As testified to by barangay captains Joel Caaway and Calixto Villena, a
gradual change in the quality and quantity of ground water had taken place due to the increase
in the number of industrial plants along Batangas Bay. xxx

xxx

The Assailed Ordinance is void for being ultra vires, for being contrary to existing law,
and for lack of evidence showing the existence of factual basis for its enactment.

xxxx

Batangas City claims that the enactment of the Assailed Ordinance constitutes a valid
exercise of its police power. This claim is erroneous.

xxxx

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 Since LGUs exercise delegated police power as agents of the State, it is incumbent upon
them to act in conformity to the will of their principal, the State. Necessarily, therefore,
ordinances enacted pursuant to the general welfare clause may not subvert the State's will by
contradicting national statutes. Thus, in Batangas CATV, Inc. v. Court of Appeals, the Court
struck down an ordinance enacted by Batangas City which granted the Sangguniang
Panlungsod the power to fix subscriber rates charged by CATV providers operating within the
former's territory, as this directly violated a general law which grants such power exclusively to
the National Telecommunications Commission. In so ruling, the Court stressed that
municipalities are precluded from regulating conduct already covered by a statute involving the
same subject matter, hence:
In De la Cruz vs. Paraz, we laid the general rule "that ordinances passed by virtue
of the implied power found in the general welfare clause must be reasonable, consonant
with the general powers and purposes of the corporation, and not inconsistent with the
laws or policy of the State."

xxxx

In this regard, it is appropriate to stress that where the state legislature has made
provision for the regulation of conduct, it has manifested its intention that the subject
matter shall be fully covered by the statute, and that a municipality, under its general
powers, cannot regulate the same conduct.xxxx

It is a fundamental principle that municipal ordinances are inferior in status and

subordinate to the laws of the state. An ordinance in conflict with a state law of general
character and statewide application is universally held to be invalid. xxx In every power to
pass ordinances given to a municipality, there is an implied restriction that the
ordinances shall be consistent with the general law.x x x (Emphasis and underscoring
supplied)

xxx

The Water Code governs the ownership, appropriation, utilization, exploitation,

development, conservation and protection of water resources. Under Article 3 thereof, water
resources are placed under the control and regulation of the government through the National
Water Resources Council, now the NWRB. In turn, the privilege to appropriate and use water is
one which is exclusively granted and regulated by the State through water permits issued by the
NWRB. xxx

Conversely, the power to modify, suspend, cancel or revoke water permits already issued
also rests with NWRB.

On the other hand, the avowed purpose of the Assailed Ordinance, as stated in its
whereas clauses, is the protection of local aquifers for the benefit of the inhabitants of Batangas
City. Accordingly, the Assailed Ordinance mandates all heavy industries operating along
Batangas Bay to use seawater in the operation of their respective facilities, and install
desalination plants for this purpose. Failure to comply with this mandatory requirement would
have the effect of precluding continuous operation, and exposing noncompliant parties to penal
and administrative sanctions.

There is no doubt, therefore, that the Assailed Ordinance effectively contravenes the
provisions of the Water Code as it arrogates unto Batangas City the power to control and
regulate the use of ground water which, by virtue of the provisions of the Water Code, pertains
solely to the NWRB. By enacting the Assailed Ordinance, Batangas City acted in excess of the
powers granted to it as an LGU, rendering the Assailed Ordinance ultra vires.

Being ultra vires, the Assailed Ordinance, in its entirety, is null and void. (City of
Batangas v. Pilipinas Shell, G.R. No. 195003, June 7, 2017)

Congress retains control of the local government units although in

significantly reduced degree now than under our previous Constitutions. True, there
are certain notable innovations in the Constitution, like the direct conferment on the
local government units of the power to tax, which cannot now be withdrawn by
mere statute. By and large, however, the national legislature is still the principal of
the local government units, which cannot defy its will or modify or violate it.

An ordinance must pass muster under the test of constitutionality and the test of
consistency with the prevailing laws. If not, it is void. xxxx As to conformity with existing
statutes, Batangas CATV, Inc. v. Court of Appeals has this to say:
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 It is a fundamental principle that municipal ordinances are inferior in status and
subordinate to the laws of the state. An ordinance in conflict with a state law of general
character and statewide application is universally held to be invalid. xxx In the language
of Justice Isagani Cruz (ret.), this Court, in Magtajas vs. Pryce Properties Corp., Inc.,
ruled that:

xxx

This basic relationship between the national legislature and the local government
units has not been enfeebled by the new provisions in the Constitution strengthening the
policy of local autonomy. xxx Congress retains control of the local government units
although in significantly reduced degree now than under our previous Constitutions. The
power to create still includes the power to destroy. The power to grant still includes the
power to withhold or recall. True, there are certain notable innovations in the
Constitution, like the direct conferment on the local government units of the power to tax,
which cannot now be withdrawn by mere statute. By and large, however, the national
legislature is still the principal of the local government units, which cannot defy its will or
modify or violate it.

xxx [T]he policy of ensuring the autonomy of local governments was never
intended by the drafters of the 1987 Constitution to create an imperium in imperio and
install an intra-sovereign political subdivision independent of a single sovereign state.
(Ferrer v. Bautista, G.R. No. 210551, June 30, 2015)

Consistent with the state policy of local autonomy as guaranteed by

the 1987 Constitution, the grant and release of the hospitalization and health
care insurance benefits given to local government officials and employees,
through an ordinance passed by petitioner’s Sangguniang Panlalawigan – is
valid – even without approval of the President. An LGU is only under the
President’s general supervision, not control.

In the present case, petitioner, through an approved Sangguniang

Panlalawigan resolution, granted and released the disbursement for the hospitalization
and health care insurance benefits of the province’s officials and employees without any
prior approval from the President. The COA disallowed the premium payment for such
benefits since petitioner disregarded AO 103 and RA 6758.

We disagree with the COA. From a close reading of the provisions of AO 103,
petitioner did not violate the rule of prior approval from the President since Section 2
states that the prohibition applies only to "government offices/agencies, including
government-owned and/or controlled corporations, as well as their respective
governing boards." Nowhere is it indicated in Section 2 that the prohibition also applies
to LGUs. The requirement then of prior approval from the President under AO 103 is
applicable only to departments, bureaus, offices and government-owned and controlled
corporations under the Executive branch. In other words, AO 103 must be observed by
government offices under the President’s control as mandated by Section 17, Article VII
of the Constitution which states:

Section 17. The President shall have control of

all executive departments, bureaus and offices. He shall ensure that
the laws be faithfully executed. (Emphasis supplied)

Being an LGU, petitioner is merely under the President’s general supervision pursuant to
Section 4, Article X of the Constitution:

Sec. 4. The President of the Philippines shall exercise

general supervision over local governments. Provinces with
respect to component cities and municipalities, and cities and
municipalities with respect to component barangays shall ensure that the
acts of their component units are within the scope of their prescribed
powers and functions. (Emphasis supplied)

The President’s power of general supervision means the power of a superior officer to see
to it that subordinates perform their functions according to law. This is distinguished from the
President’s power of control which is the power to alter or modify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the judgment of
the President over that of the subordinate officer. The power of control gives the President the
power to revise or reverse the acts or decisions of a subordinate officer involving the exercise of
discretion.

99 | P a g e
 Since LGUs are subject only to the power of general supervision of the President, the
President’s authority is limited to seeing to it that rules are followed and laws are faithfully
executed. The President may only point out that rules have not been followed but the President
cannot lay down the rules, neither does he have the discretion to modify or replace the rules.
Thus, the grant of additional compensation like hospitalization and health care insurance
benefits in the present case does not need the approval of the President to be valid.

xxx

Thus, consistent with the state policy of local autonomy as guaranteed by the 1987
Constitution, under Section 25, Article II and Section 2, Article X, and the Local Government
Code of 1991, we declare that the grant and release of the hospitalization and health care
insurance benefits given to petitioner’s officials and employees were validly enacted through an
ordinance passed by petitioner’s Sangguniang Panlalawigan.

In sum, since petitioner’s grant and release of the questioned disbursement without the
President’s approval did not violate the President’s directive in AO 103, the COA then gravely
abused its discretion in applying AO 103 to disallow the premium payment for the
hospitalization and health care insurance benefits of petitioner’s officials and employees.
(Province of Negros Occidental v. Commissioners, Commission on Audit, G.R. No. 182574,
September 28, 2010)

POWER OF LGUS TO ENACT ORDINANCE

An ordinance to promote the general welfare in terms of economic benefits

cannot override the very basic rights to life, security and safety of the people. In the
absence of any convincing reason that the life, security and safety of the inhabitants
of Manila are no longer put at risk by the presence of the oil depots in Pandacan,
Ordinance No. 8187 in favor of the retention of the oil depots is invalid and
unconstitutional.

These petitions are a sequel to the case of Social Justice Society v. Mayor Atienza, Jr.
(hereinafter referred to asG.R. No. 156052), where the Court found: (1) that the ordinance
subject thereof – Ordinance No. 8027 – was enacted "to safeguard the rights to life, security and
safety of the inhabitants of Manila;" (2) that it had passed the tests of a valid ordinance; and (3)
that it is not superseded by Ordinance No. 8119. Declaring that it is constitutional and valid, the
Court accordingly ordered its immediate enforcement with a specific directive on the relocation
and transfer of the Pandacan oil terminals.

Highlighting that the Court has so ruled that the Pandacan oil depots should leave,
herein petitioners now seek the nullification of Ordinance No. 8187, which contains provisions
contrary to those embodied in Ordinance No. 8027. Allegations of violation of the right to health
and the right to a healthful and balanced environment are also included.

xxx

The petitioners’ arguments are primarily anchored on the ruling of the Court in G. R. No.
156052 declaring Ordinance No. 8027 constitutional and valid after finding that the presence of
the oil terminals in Pandacan is a threat to the life and security of the people of Manila. From
thence, the petitioners enumerated constitutional provisions, municipal laws and international
treaties and conventions on health and environment protection allegedly violated by the
enactment of the assailed Ordinance to support their position.

The resolution of the present controversy is, thus, confined to the determination of
whether or not the enactment of the assailed Ordinance allowing the continued stay of the oil
companies in the depots is, indeed, invalid and unconstitutional.

Our Ruling

We see no reason why Ordinance No. 8187 should not be stricken down insofar as the
presence of the oil depots in Pandacan is concerned.

xxx

The Local Government Code of 1991 expressly provides that the Sangguniang
Panlungsod is vested with the power to "reclassify land within the jurisdiction of the city"
subject to the pertinent provisions of the Code. It is also settled that an ordinance may be
modified or repealed by another ordinance. These have been properly applied in G.R. No.
100 | P a g e
156052, where the Court upheld the position of the Sangguniang Panlungsod to reclassify the
land subject of the Ordinance, and declared that the mayor has the duty to enforce Ordinance
No. 8027, provided that it has not been repealed by the Sangguniang Panlungsod or otherwise
annulled by the courts. In the same case, the Court also used the principle that the Sanguniang
Panlungsod is in the best position to determine the needs of its Constituents – that the removal
of the oil depots from the Pandacan area is necessary "to protect the residents of Manila from
catastrophic devastation in case of a terrorist attack on the Pandacan Terminals."

Do all these principles equally apply to the cases at bar involving the same subject matter
to justify the contrary provisions of the assailed Ordinance?

We answer in the negative.

xxx In 2001, the Sanggunian found the relocation of the Pandacan oil depots necessary.
Hence, the enactment of Ordinance No. 8027.

In 2009, when the composition of the Sanggunian had already changed, Ordinance No.
8187 was passed in favor of the retention of the oil depots. In 2012, again when some of the
previous members were no longer re-elected, but with the Vice-Mayor still holding the same
seat, and pending the resolution of these petitions, Ordinance No. 8283 was enacted to give the
oil depots until the end of January 2016 within which to transfer to another site. Former Mayor
Lim stood his ground and vetoed the last ordinance.

In its Comment, the 7th Council (2007-2010) alleged that the assailed Ordinance was
enacted to alleviate the economic condition of its constituents.

Expressing the same position, former Mayor Lim even went to the extent of detailing the
steps he took prior to the signing of the Ordinance, if only to show his honest intention to make
the right decision.

The fact remains, however, that notwithstanding that the conditions with respect to the
operations of the oil depots existing prior to the enactment of Ordinance No. 8027 do not
substantially differ to this day, as would later be discussed, the position of the Sangguniang
Panlungsod on the matter has thrice changed, largely depending on the new composition of the
council and/or political affiliations. The foregoing, thus, shows that its determination of the
"general welfare" of the city does not after all gear towards the protection of the people in its
true sense and meaning, but is, one way or another, dependent on the personal preference of the
members who sit in the council as to which particular sector among its constituents it wishes to
favor.

xxx

The measures taken by the intervenors to lend support to their position that Manila is
now safe despite the presence of the oil terminals remain ineffective. These have not completely
removed the threat to the lives of the in habitants of Manila.

In G.R. No. 156052, the validity and constitutionality of Ordinance No. 8027 was
declared as a guarantee for the protection of the constitutional right to life of the residents of
Manila. There, the Court said that the enactment of the said ordinance was a valid exercise of
police power with the concurrence of the two requisites: a lawful subject – "to safeguard the
rights to life, security and safety of all the inhabitants of Manila;" and a lawful method – the
enactment of Ordinance No. 8027 reclassifying the land use from industrial to commercial,
which effectively ends the continued stay of the oil depots in Pandacan.

In the present petitions, the respondents and the oil companies plead that the Pandacan
Terminal has never been one of the targets of terrorist attacks; that the petitions were based on
unfounded fears and mere conjectures; and that the possibility that it would be picked by the
terrorists is nil given the security measures installed thereat.

The intervenors went on to identify the measures taken to ensure the safety of the people
even with the presence of the Pandacan Terminals. xxx

xxx

Even assuming that the respondents and intervenors were correct, the very nature of the
depots where millions of liters of highly flammable and highly volatile products, regardless of
whether o rnot the composition may cause explosions, has no place in a densely populated area.
Surely, any untoward incident in the oil depots, be it related to terrorism of whatever origin or
otherwise, would definitely cause not only destruction to properties within and among the
neighboring communities but certainly mass deaths and injuries.
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 xxx

It is the removal of the danger to life not the mere subdual of risk of catastrophe, that we
saw in and made us favor Ordinance No. 8027. That reason, unaffected by Ordinance No. 8187,
compels the affirmance of our Decision in G.R. No. 156052.

In striking down the contrary provisions of the assailed Ordinance relative to the
continued stay of the oil depots, we follow the same line of reasoning used in G.R. No. 156052,
to wit: Ordinance No. 8027 was enacted "for the purpose of promoting sound urban planning,
ensuring health, public safety and general welfare" of the residents of Manila. The Sanggunian
was impelled to take measures to protect the residents of Manila from catastrophic devastation
in case of a terrorist attack on the Pandacan Terminals. Towards this objective, the Sanggunian
reclassified the area defined in the ordinance from industrial to commercial.

xxx

The ordinance was intended to safeguard the rights to life, security and safety of all the
inhabitants of Manila and not just of a particular class. The depot is perceived, rightly or
wrongly, as a representation of western interests which means that it is a terrorist target. As long
as it (sic) there is such a target in their midst, the residents of Manila are not safe. It therefore
became necessary to remove these terminals to dissipate the threat.

xxx

The Pandacan oil depot remains a terrorist target even if the contents have been
lessened. In the absence of any convincing reason to persuade this Court that the life, security
and safety of the inhabitants of Manila are no longer put at risk by the presence of the oil depots,
we hold that Ordinance No. 8187 in relation to the Pandacan Terminals is invalid and
unconstitutional.

xxx

Neither is it necessary to discuss at length the test of police power against the assailed
ordinance. Suffice it to state that the objective adopted by the Sangguniang Panlungsod to
promote the constituents’ general welfare in terms of economic benefits cannot override the very
basic rights to life, security and safety of the people. (Social Justice Society Officers v. Lim, G.R.
No. 187836, November 25, 2014)

LGU PARTICIPATION IN NATIONAL PROJECTS

National government agencies must conduct prior public consultation and

secure the approval of local government units for national government projects
affecting the ecological balance of local communities. The lack of prior public
consultation and approval is not corrected by the subsequent endorsement.

The Local Government Code establishes the duties of national government agencies in
the maintenance of ecological balance, and requires them to secure prior public consultation
and approval of local government units for the projects described therein.

In the case before us, the national agency involved is respondent PRA. Even if the project
proponent is the local government of Aklan, it is respondent PRA which authorized the
reclamation, being the exclusive agency of the government to undertake reclamation
nationwide. xxx

This project can be classified as a national project that affects the environmental and
ecological balance of local communities, and is covered by the requirements found in the Local
Government Code provisions that are quoted below:

Section 26. Duty of National Government Agencies in the

Maintenance of Ecological Balance. - It shall be the duty of every national agency
or government-owned or controlled corporation authorizing or involved in the planning
and implementation of any project or program that may cause pollution, climatic change,
depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and
extinction of animal or plant species, to consult with the local government units,
nongovernmental organizations, and other sectors concerned and explain the goals and
objectives of the project or program, its impact upon the people and the community in
terms of environmental or ecological balance, and the measures that will be undertaken
to prevent or minimize the adverse effects thereof.

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 Section 27. Prior Consultations Required. - No project or program shall be
implemented by government authorities unless the consultations mentioned in Sections 2
(c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is
obtained: Provided, That occupants in areas where such projects are to be implemented
shall not be evicted unless appropriate relocation sites have been provided, in accordance
with the provisions of the Constitution.

In Lina, Jr. v. Pao, we held that Section 27 of the Local Government Code applies only to
national programs and/or projects which are to be implemented in a particular local community
and that it should be read in conjunction with Section 26. We held further in this manner:

Thus, the projects and programs mentioned in Section 27 should be interpreted

to mean projects and programs whose effects are among those enumerated in Section 26
and 27, to wit, those that: (1) may cause pollution; (2) may bring about climatic
change; (3) may cause the depletion of non-renewable resources; (4) may result in loss of
crop land, range-land, or forest cover; (5) may eradicate certain animal or plant species
from the face of the planet; and (6) other projects or programs that may call for the
eviction of a particular group of people residing in the locality where these will be
implemented. Obviously, none of these effects will be produced by the introduction of
lotto in the province of Laguna. (Emphasis added.)

xxx [I]t was established that this project as described above falls under Section 26
because the commercial establishments to be built on phase 1, as described in the EPRMP
quoted above, could cause pollution as it could generate garbage, sewage, and possible toxic fuel
discharge.

Our ruling in Province of Rizal v. Executive Secretary is instructive:

We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v.

Lanzanas, where we held that there was no statutory requirement for
the sangguniang bayan of Puerto Galera to approve the construction of a
mooring facility, as Sections 26 and 27 are inapplicable to projects which are not
environmentally critical.

xxx

Under the Local Government Code, therefore, two requisites

must be met before a national project that affects the environmental
and ecological balance of local communities can be implemented:
prior consultation with the affected local communities, and
prior approval of the project by the appropriate sanggunian. Absent
either of these mandatory requirements, the projects implementation
is illegal. (Emphasis added.)

Based on the above, therefore, prior consultations and prior approval are
required by law to have been conducted and secured by the respondent Province.
Accordingly, the information dissemination conducted months after the ECC had already been
issued was insufficient to comply with this requirement under the Local Government Code.

xxx

The lack of prior public consultation and approval is not corrected by the subsequent
endorsement of the reclamation project by the Sangguniang Barangay of Caticlan on
February 13, 2012, and the Sangguniang Bayan of the Municipality of Malay on February
28, 2012, which were both undoubtedly achieved at the urging and insistence of respondent
Province. As we have established above, the respective resolutions issued by the LGUs
concerned did not render this petition moot and academic. (Boracay Foundation v. Province of
Aklan, G.R. No. 196870, June 26, 2012)

CONVERSION OF LGUS

Why conversion of a component city into a Highly Urbanized City (HUC)

requires approval by a majority of the votes in a plebiscite for the entire province:

The creation, division, merger, abolition or substantial alteration of

boundaries of local government units involve a material change in the political and
economic rights of the local government units directly affected as well as the people

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therein. Thus, the Constitution requires the approval of the people “in the political
units directly affected.” Similarly, conversion will lead to material change in the
political and economic rights of not only of the component city but of the entire
province.

Petitioner Umali asseverates that Sec. 10, Art. X of the Constitution should be the basis
for determining the qualified voters who will participate in the plebiscite to resolve the issue.
Sec. 10, Art. X reads:

Section 10, Article X. – No province, city, municipality, or barangay may be

created, divided, merged, abolished, or its boundary substantially altered, except in
accordance with the criteria established in the local government code and subject to
approval by a majority of the votes cast in a plebiscite in the political units
directly affected.(emphasis supplied)

Petitioner Umali elucidates that the phrase “political units directly affected”
necessarily encompasses not only Cabanatuan City but the entire province of Nueva Ecija.
Hence, all the registered voters in the province are qualified to cast their votes in resolving
the proposed conversion of Cabanatuan City.
xxx

First, the Court’s pronouncement in Miranda vs. Aguirre is apropos and may be
applied by analogy. Xxx In that seminal case, the Court held that the downgrading of an
independent component city into a component city comes within the purview of Sec. 10,
Art. X of the Constitution.

In Miranda, the rationale behind the afore–quoted constitutional provision and its
application to cases of conversion were discussed thusly:

A close analysis of the said constitutional provision will reveal that the creation,
division, merger, abolition or substantial alteration of boundaries of local government units
involve a common denominator – – – material change in the political and economic rights
of the local government units directly affected as well as the people therein. It is precisely
for this reason that the Constitution requires the approval of the people “in the political
units directly affected.” xxx Section 10, Article X [of the 1987 Constitution] addressed the
undesirable practice in the past whereby local government units were created, abolished,
merged or divided on the basis of the vagaries of politics and not of the welfare of the
people. Thus, the consent of the people of the local government unit directly affected was
required to serve as a checking mechanism xxx. This plebiscite requirement is also in
accord with the philosophy of the Constitution granting more autonomy to local
government units.

xxx Similar to the enumerated acts in the constitutional provision, conversions were
found to result in material changes in the economic and political rights of the people and LGUs
affected. Given the far–reaching ramifications of converting the status of a city, we held that the
plebiscite requirement under the constitutional provision should equally apply to conversions as
well. Thus, RA 8528 was declared unconstitutional in Miranda on the ground that the law
downgraded Santiago City in Isabela without submitting it for ratification in a plebiscite, in
contravention of Sec. 10, Art. X of the Constitution. (Umali v. Commission on Elections, G.R.
No. 203974, April 22, 2014)

The conversion of a component city into an HUC is substantial alteration of

boundaries. “Boundaries” should not be limited to the mere physical one, but also to
its political boundaries. With the city’s newfound autonomy, it will be free from the
oversight powers of the province, which, in effect, reduces the territorial jurisdiction
of the latter.

Second, while conversion to an HUC is not explicitly provided in Sec. 10, Art. X of the
Constitution we nevertheless observe that the conversion of a component city into an HUC is
substantial alteration of boundaries.

As the phrase implies, “substantial alteration of boundaries” involves and necessarily

entails a change in the geographical configuration of a local government unit or units. However,
the phrase “boundaries” should not be limited to the mere physical one, referring to the metes
and bounds of the LGU, but also to its political boundaries. It also connotes a modification of
the demarcation lines between political subdivisions, where the LGU’s exercise of corporate

104 | P a g e
power ends and that of the other begins. And as a qualifier, the alteration must be “substantial”
for it to be within the ambit of the constitutional provision.
xxx
With the city’s newfound autonomy, it will be free from the oversight powers of the
province, which, in effect, reduces the territorial jurisdiction of the latter. What once formed
part of Nueva Ecija will no longer be subject to supervision by the province. In more concrete
terms, Nueva Ecija stands to lose 282.75 sq. km. of its territorial jurisdiction with Cabanatuan
City’s severance from its mother province. This is equivalent to carving out almost 5% of Nueva
Ecija’s 5,751.3 sq. km. area. This sufficiently satisfies the requirement that the alteration be
“substantial.”
Needless to stress, the alteration of boundaries would necessarily follow Cabanatuan
City’s conversion in the same way that creations, divisions, mergers, and abolitions generally
cannot take place without entailing the alteration. xxx
In light of the foregoing disquisitions, the Court rules that conversion to an HUC is
substantial alternation of boundaries governed by Sec. 10, Art. X and resultantly, said provision
applies, governs and prevails over Sec. 453 of the LGC. (Umali v. Commission on Elections, G.R.
No. 203974, April 22, 2014)

LGUs whose boundaries are to be altered and whose economy would be

affected are entitled to participate in the plebiscite to approve the conversion.

In identifying the LGU or LGUs that should be allowed to take part in the plebiscite,
what should primarily be determined is whether or not the unit or units that desire to
participate will be “directly affected” by the change. To interpret the phrase, Tan v.
COMELEC and Padilla v. COMELEC are worth revisiting.

We have ruled in Tan, involving the division of Negros Occidental for the creation of the
new province of Negros del Norte, that the LGUs whose boundaries are to be altered and whose
economy would be affected are entitled to participate in the plebiscite. As held:

It can be plainly seen that the aforecited constitutional provision makes it

imperative that there be first obtained “the approval of a majority of votes in the plebiscite
in the unit or units affected” whenever a province is created, divided or merged and there is
substantial alteration of the boundaries. It is thus inescapable to conclude that the
boundaries of the existing province of Negros Occidental would necessarily be substantially
altered by the division of its existing boundaries in order that there can be created the
proposed new province of Negros del Norte. Plain and simple logic will demonstrate
than that two political units would be affected. The first would be the parent
province of Negros Occidental because its boundaries would be substantially
altered. The other affected entity would be composed of those in the area
subtracted from the mother province to constitute the proposed province of
Negros del Norte.

xxxx

xxx The economy of the parent province as well as that of the new
province will be inevitably affected, either for the better or for the worse.
Whatever be the case, either or both of these political groups will be affected
and they are, therefore, the unit or units referred to in Section 3 of Article XI
of the Constitution which must be included in the plebiscite contemplated
therein. (emphasis added)

xxx

Despite the change in phraseology [in Sec. 3, Art. XI of the 1973 Constitution] compared
to what is now Sec. 10, Art. X, we affirmed our ruling in Tan in the latter case of Padilla. xxx

xxx

In the more recent case of Miranda, the interpretation in Tan and Padilla was modified
to include not only changes in economic but also political rights in the criteria for determining
whether or not an LGU shall be considered “directly affected.” Nevertheless, the requirement
that the plebiscite be participated in by the plurality of political units directly affected remained.
(Umali v. Commission on Elections, G.R. No. 203974, April 22, 2014)

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 Economic impact of conversion: The conversion of a component city into a
highly urbanized city will adversely impact the economic rights of the province, as
this will result in reduction of the province’s Internal Revenue Allotment (IRA), and
reduction in tax collections due to reduction of taxing jurisdiction, and loss of shares
in provincial taxes imposed in the city to be converted.

In a similar fashion, herein petitioner Umali itemized the adverse effects of Cabanatuan
City’s conversion to the province of Nueva Ecija to justify the province’s participation in the
plebiscite to be conducted.

Often raised is that Cabanatuan City’s conversion into an HUC and its severance from
Nueva Ecija will result in the reduction of the Internal Revenue Allotment (IRA) to the province
based on Sec. 285 of the LGC.

Xxx

Xxx [T]he conversion into an HUC carries the accessory of substantial alteration of
boundaries and that the province of Nueva Ecija will, without a doubt, suffer a reduction in
territory because of the severance of Cabanatuan City. The residents of the city will cease to be
political constituencies of the province, effectively reducing the latter’s population. Taking this
decrease in territory and population in connection with the above formula, it is conceded that
Nueva Ecija will indeed suffer a reduction in IRA given the decrease of its multipliers’ values.

Clear as crystal is that the province of Nueva Ecija will suffer a substantial reduction of
its share in IRA once Cabanatuan City attains autonomy. In view of the economic impact of
Cabanatuan City’s conversion, petitioner Umali’s contention, that its effect on the province is
not only direct but also adverse, deserves merit.

Moreover, his claim that the province will lose shares in provincial taxes imposed in
Cabanatuan City is well–founded. This is based on Sec. 151 of the LGC, which states: xxxxx

Once converted, the taxes imposed by the HUC will accrue to itself. Prior to this, the
province enjoys the prerogative to impose and collect taxes such as those on sand, gravel and
other quarry resources, professional taxes, and amusement taxes over the component city. Xxx
This reduction in both taxing jurisdiction and shares poses a material and substantial change to
the province’s economic rights, warranting its participation in the plebiscite.

xxx

A component city’s conversion into an HUC and its resultant autonomy from the
province is a threat to the latter’s economic viability. Noteworthy is that the income criterion for
a component city to be converted into an HUC is higher than the income requirement for the
creation of a province. The ensuing reduction in income upon separation would clearly leave a
crippling effect on the province’s operations as there would be less funding to finance
infrastructure projects and to defray overhead costs. Moreover, the quality of services being
offered by the province may suffer because of looming austerity measures. These are but a few of
the social costs of the decline in the province’s economic performance, which Nueva Ecija is
bound to experience once its most progressive city of Cabanatuan attains independence. (Umali
v. Commission on Elections, G.R. No. 203974, April 22, 2014)

Political impact of conversion: Administrative supervision of the province over

the city will effectively be revoked upon conversion. Thus, the provincial
government will lose the power to ensure that the local government officials of
Cabanatuan City act within the scope of its prescribed powers and functions, to
review executive orders issued by the city mayor, and to approve resolutions and
ordinances enacted by the city council. The province will also be divested of
jurisdiction over disciplinary cases concerning the elected city officials of the new
HUC. Moreover, provincial government will no longer be responsible for delivering
basic services for the city residents’ benefit. Ordinances and resolutions passed by
the provincial council will no longer cover the city.

Aside from the alteration of economic rights, the political rights of Nueva Ecija and those
of its residents will also be affected by Cabanatuan’s conversion into an HUC. Notably, the
administrative supervision of the province over the city will effectively be revoked upon
conversion. Secs. 4 and 12, Art. X of the Constitution read:

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 Sec. 4. The President of the Philippines shall exercise general supervision over
local governments. Provinces with respect to component cities and municipalities, and
cities and municipalities with respect to component barangays shall ensure that the acts of
their component units are within the scope of their prescribed powers and functions.

Sec 12. Cities that are highly urbanized, as determined by law, and component
cities whose charters prohibit their voters from voting for provincial elective officials, shall
be independent of the province. The voters of component cities within a province, whose
charters contain no such prohibition, shall not be deprived of their right to vote for elective
provincial officials.

Duties, privileges and obligations appertaining to HUCs will attach to Cabanatuan City if
it is converted into an HUC. This includes the right to be outside the general supervision of the
province and be under the direct supervision of the President. xxx The provincial government
stands to lose the power to ensure that the local government officials of Cabanatuan City act
within the scope of its prescribed powers and functions, to review executive orders issued by the
city mayor, and to approve resolutions and ordinances enacted by the city council. The province
will also be divested of jurisdiction over disciplinary cases concerning the elected city officials of
the new HUC, and the appeal process for administrative case decisions
against barangay officials of the city will also be modified accordingly. Likewise, the registered
voters of the city will no longer be entitled to vote for and be voted upon as provincial officials.

In cutting the umbilical cord between Cabanatuan City and the province of Nueva Ecija,
the city will be separated from the territorial jurisdiction of the province, as earlier explained.
The provincial government will no longer be responsible for delivering basic services for the city
residents’ benefit. Ordinances and resolutions passed by the provincial council will no longer
cover the city. Projects queued by the provincial government to be executed in the city will also
be suspended if not scrapped to prevent the LGU from performing functions outside the bounds
of its territorial jurisdiction, and from expending its limited resources for ventures that do not
cater to its constituents.

In view of these changes in the economic and political rights of the province of Nueva
Ecija and its residents, the entire province certainly stands to be directly affected by the
conversion of Cabanatuan City into an HUC. Following the doctrines in Tan and Padilla, all the
qualified registered voters of Nueva Ecija should then be allowed to participate in the plebiscite
called for that purpose. (Umali v. Commission on Elections, G.R. No. 203974, April 22, 2014)

POWERS OF LOCAL EXECUTIVES

A provincial governor has no power to call out the armed forces, a power
exclusive to the President; a provincial governor has no power to order general
searches and seizures; he has no power to organize private armed groups.

iii. The provincial governor does not possess the same calling-out powers as the
President

[R]espondent provincial governor is not endowed with the power to call upon the armed
forces at his own bidding. In issuing the assailed proclamation, Governor Tan exceeded his
authority when he declared a state of emergency and called upon the Armed Forces, the police,
and his own Civilian Emergency Force. The calling-out powers contemplated under the
Constitution is exclusive to the President. An exercise by another official, even if he is the local
chief executive, is ultra vires x x x.

Respondents, however, justify this stance by stating that nowhere in the seminal case of
David v. Arroyo, which dealt squarely with the issue of the declaration of a state of emergency,
does it limit the said authority to the President alone. Respondents contend that the ruling in
David expressly limits the authority to declare a national emergency, a condition which covers
the entire country, and does not include emergency situations in local government units. This
claim is belied by the clear intent of the framers that in all situations involving threats to
security, such as lawless violence, invasion or rebellion, even in localized areas, it is still the
President who possesses the sole authority to exercise calling-out powers. x x x

xxx

III. Section 465 of the Local Government Code cannot be invoked to justify the powers
enumerated under Proclamation 1-09
107 | P a g e
 Respondent governor characterized the kidnapping of the three ICRC workers as a
terroristic act, and used this incident to justify the exercise of the powers enumerated under
Proclamation 1-09. x x x

Petitioners cite the implementation of "General Search and Seizure including arrests in
the pursuit of the kidnappers and their supporters," as being violative of the constitutional
proscription on general search warrants and general seizures. Petitioners rightly assert that this
alone would be sufficient to render the proclamation void, as general searches and seizures are
proscribed, for being violative of the rights enshrined in the Bill of Rights, particularly:

The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.

In fact, respondent governor has arrogated unto himself powers exceeding even the
martial law powers of the President, because as the Constitution itself declares, "A state of
martial law does not suspend the operation of the Constitution, nor supplant the functioning of
the civil courts or legislative assemblies, nor authorize the conferment of the jurisdiction on
military courts and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.”

[T]here is nothing in the Local Government Code which justifies the acts sanctioned
under the said Proclamation. Not even Section 465 of the said Code, in relation to Section 16,
which states:

Section 465. The Chief Executive: Powers, Duties, Functions, and Compensation.

xxx xxx xxx

(b) For efficient, effective and economical governance the purpose of which is the
general welfare of the province and its inhabitants pursuant to Section 16 of this Code, the
provincial governor shall:

(1) Exercise general supervision and control over all programs, projects, services,
and activities of the provincial government, and in this connection, shall:

xxx xxx xxx

(vii) Carry out such emergency measures as may be necessary during and in the
aftermath of man-made and natural disasters and calamities;

(2) Enforce all laws and ordinances relative to the governance of the province and
the exercise of the appropriate corporate powers provided for under Section 22 of this
Code, implement all approved policies, programs, projects, services and activities of the
province and, in addition to the foregoing, shall:

xxx xxx xxx

(vi) Call upon the appropriate national law enforcement agencies to suppress
disorder, riot, lawless violence, rebellion or sedition or to apprehend violators of the law
when public interest so requires and the police forces of the component city or municipality
where the disorder or violation is happening are inadequate to cope with the situation or
the violators.

Section 16. General Welfare. - Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the development of appropriate and
self-reliant scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their residents,
maintain peace and order, and preserve the comfort and convenience of their inhabitants.
(Emphases supplied)

Respondents cannot rely on paragraph 1, subparagraph (vii) of Article 465 above, as the
said provision expressly refers to calamities and disasters, whether man-made or natural. The
108 | P a g e
governor, as local chief executive of the province, is certainly empowered to enact and
implement emergency measures during these occurrences. But the kidnapping incident in the
case at bar cannot be considered as a calamity or a disaster. Respondents cannot find any legal
mooring under this provision to justify their actions.

Paragraph 2, subparagraph (vi) of the same provision is equally inapplicable for two
reasons. First, the Armed Forces of the Philippines does not fall under the category of a
"national law enforcement agency," to which the National Police Commission (NAPOLCOM)
and its departments belong.

Its mandate is to uphold the sovereignty of the Philippines, support the Constitution,
and defend the Republic against all enemies, foreign and domestic. Its aim is also to secure the
integrity of the national territory.

Second, there was no evidence or even an allegation on record that the local police forces
were inadequate to cope with the situation or apprehend the violators. If they were inadequate,
the recourse of the provincial governor was to ask the assistance of the Secretary of Interior and
Local Government, or such other authorized officials, for the assistance of national law
enforcement agencies.

The Local Government Code does not involve the diminution of central powers
inherently vested in the National Government, especially not the prerogatives solely granted by
the Constitution to the President in matters of security and defense.

The intent behind the powers granted to local government units is fiscal, economic, and
administrative in nature. The Code is concerned only with powers that would make the delivery
of basic services more effective to the constituents, and should not be unduly stretched to confer
calling-out powers on local executives.

xxx

IV. Provincial governor is not authorized to convene CEF

Pursuant to the national policy to establish one police force, the organization of private
citizen armies is proscribed. Section 24 of Article XVIII of the Constitution mandates that:

Private armies and other armed groups not recognized by duly constituted
authority shall be dismantled. All paramilitary forces including Civilian Home Defense
Forces (CHDF) not consistent with the citizen armed force established in this Constitution,
shall be dissolved or, where appropriate, converted into the regular force.

Additionally, Section 21 of Article XI states that, "The preservation of peace and order
within the regions shall be the responsibility of the local police agencies which shall be
organized, maintained, supervised, and utilized in accordance with applicable laws. The defense
and security of the regions shall be the responsibility of the National Government."

Taken in conjunction with each other, it becomes clear that the Constitution does not
authorize the organization of private armed groups similar to the CEF convened by the
respondent Governor. The framers of the Constitution were themselves wary of armed citizens’
groups, x x x.

xxx

Thus, with the discussions in the Constitutional Commission as guide, the creation of the
Civilian Emergency Force (CEF) in the present case, is also invalid. (Kulayan v. Tan, G.R. No.
187298, July 03, 2012)

A mayor has the power to order the demolition of illegal constructions after
complying with due process.

Generally, LGUs have no power to declare a particular thing as a nuisance unless such a
thing is a nuisance per se. So it was held in AC Enterprises v. Frabelle Properties Corp:

We agree with petitioner’s contention that, under Section 447(a)(3)(i) of R.A. No.
7160, otherwise known as the Local Government Code, the Sangguniang Panglungsod is
empowered to enact ordinances declaring, preventing or abating noise and other forms of
nuisance. It bears stressing, however, that the Sangguniang Bayan cannot declare a
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 particular thing as a nuisance per se and order its condemnation. It does not have the
power to find, as a fact, that a particular thing is a nuisance when such thing is
not a nuisance per se; nor can it authorize the extrajudicial condemnation and
destruction of that as a nuisance which in its nature, situation or use is not
such. Those things must be determined and resolved in the ordinary courts of
law. If a thing, be in fact, a nuisance due to the manner of its operation, that question
cannot be determined by a mere resolution of the Sangguniang Bayan. (emphasis supplied)

Despite the hotel’s classification as a nuisance per accidens, however, We still find in this
case that the LGU may nevertheless properly order the hotel’s demolition. This is because, in the
exercise of police power and the general welfare clause, property rights of individuals may be
subjected to restraints and burdens in order to fulfill the objectives of the government.
Otherwise stated, the government may enact legislation that may interfere with personal liberty,
property, lawful businesses and occupations to promote the general welfare.

One such piece of legislation is the LGC, which authorizes city and municipal
governments, acting through their local chief executives, to issue demolition orders. Under
existing laws, the office of the mayor is given powers not only relative to its function as the
executive official of the town; it has also been endowed with authority to hear issues involving
property rights of individuals and to come out with an effective order or resolution
thereon. Pertinent herein is Sec. 444 (b)(3)(vi) of the LGC, which empowered the mayor to order
the closure and removal of illegally constructed establishments for failing to secure the
necessary permits, to wit:c

xxx
In the case at bar, petitioner admittedly failed to secure the necessary permits,
clearances, and exemptions before the construction, expansion, and operation of Boracay Wet
Cove’s hotel in Malay, Aklan. xxx

xxx

He consciously chose to violate not only the Ordinance but also Sec. 301 of PD 1096,
laying down the requirement of building permits, which provides: xxxc

This twin violation of law and ordinance warranted the LGU’s invocation of Sec. 444
(b)(3)(vi) of the LGC, which power is separate and distinct from the power to summarily abate
nuisances per se. Under the law, insofar as illegal constructions are concerned, the mayor can,
after satisfying the requirement of due notice and hearing, order their closure and demolition.
(Aquino v. Municipality of Malay, Aklan, G.R. No. 211356, September 29, 2014)

INTERNATIONAL LAW

GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW

Generally accepted principles of international law as part of the law of the

land include a) international custom as evidence of a general practice accepted as
law, and b) general principles of law recognized by civilized nations.

Under the 1987 Constitution, an international law can become part of the sphere of
domestic law either by transformation or incorporation. The transformation method requires
that an international law be transformed into a domestic law through a constitutional
mechanism such as local legislation. On the other hand, generally accepted principles of
international law, by virtue of the incorporation clause of the Constitution, form part of the laws
of the land even if they do not derive from treaty obligations. Generally accepted principles of
international law include international custom as evidence of a general practice accepted as law,
and general principles of law recognized by civilized nations. International customary rules are
accepted as binding as a result from the combination of two elements: the established,
widespread, and consistent practice on the part of States; and a psychological element known as
the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element
is a belief that the practice in question is rendered obligatory by the existence of a rule of law
requiring it. "General principles of law recognized by civilized nations" are principles
"established by a process of reasoning" or judicial logic, based on principles which are "basic to
legal systems generally," such as "general principles of equity, i.e., the general principles of
110 | P a g e
fairness and justice," and the "general principle against discrimination" which is embodied in
the "Universal Declaration of Human Rights, the International Covenant on Economic, Social
and Cultural Rights, the International Convention on the Elimination of All Forms of Racial
Discrimination, the Convention Against Discrimination in Education, the Convention (No. 111)
Concerning Discrimination in Respect of Employment and Occupation." These are the same
core principles which underlie the Philippine Constitution itself, as embodied in the due process
and equal protection clauses of the Bill of Rights. (Poe-Llamanzares v. Comelec, G.R. No.
221697, March 8, 2016)

The Philippine State can be bound by a principle embodied in a treaty even if

it is not a signatory or party to such treaty, if such principle is binding as a generally
accepted principle of international law.

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961
Convention on the Reduction of Statelessness does not mean that their principles are not
binding. While the Philippines is not a party to the 1930 Hague Convention, it is a signatory to
the Universal Declaration on Human Rights, Article 15(1) of which effectively affirms Article 14
of the 1930 Hague Convention. Article 2 of the 1961 "United Nations Convention on the
Reduction of Statelessness" merely "gives effect" to Article 15(1) of the UDHR. In Razon v.
Tagitis, this Court noted that the Philippines had not signed or ratified the "International
Convention for the Protection of All Persons from Enforced Disappearance." Yet, we ruled that
the proscription against enforced disappearances in the said convention was nonetheless
binding as a "generally accepted principle of international law." Razon v. Tagitis is likewise
notable for declaring the ban as a generally accepted principle of international law although the
convention had been ratified by only sixteen states and had not even come into force and which
needed the ratification of a minimum of twenty states. xxx

Our approach in Razon and Mijares effectively takes into account the fact that "generally
accepted principles of international law" are based not only on international custom, but also on
"general principles of law recognized by civilized nations," as the phrase is understood in Article
38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the policy against
discrimination, which are fundamental principles underlying the Bill of Rights and which are
"basic to legal systems generally,"support the notion that the right against enforced
disappearances and the recognition of foreign judgments, were correctly considered as
"generally accepted principles of international law" under the incorporation clause. (Poe-
Llamanzares v. Comelec, G.R. No. 221697, March 8, 2016)

EXECUTIVE AGREEMENTS

An exchange of notes is an internationally accepted form of international

agreement. It is a form of executive agreement that is binding through executive
action.

An exchange of notes falls into the category of inter-governmental agreements, which is

an internationally accepted form of international agreement. The United Nations Treaty
Collections (Treaty Reference Guide) defines the term as follows:

An exchange of notes is a record of a routine agreement,that has many

similarities with the private law contract. The agreement consists of the exchange of two
documents, each of the parties being in the possession of the one signed by the
representative of the other. Under the usual procedure, the accepting State repeats the
text of the offering State to record its assent. The signatories of the letters may be
government Ministers, diplomats or departmental heads. The technique of exchange of
notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to
avoid the process of legislative approval.

In another perspective, the terms exchange of notes and executive agreements have been
used interchangeably, exchange of notes being considered a form of executive agreement that
becomes binding through executive action. On the other hand, executive agreements concluded
by the President sometimes take the form of exchange of notes and at other times that of more
formal documents denominated agreements or protocols. (Bayan Muna v. Romulo, G.R. No.
159618, February 1, 2011)

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 International agreements may be in the form of (1) treaties that require
legislative concurrence after executive ratification; or (2) executive agreements
that are similar to treaties, except that they do not require legislative concurrence.
There is no difference between treaties and executive agreements in terms of their
binding effects on the contracting states concerned.

Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as an

international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation. International agreements may be in the
form of (1) treaties that require legislative concurrence after executive ratification; or (2)
executive agreements that are similar to treaties, except that they do not require legislative
concurrence and are usually less formal and deal with a narrower range of subject matters than
treaties.

Under international law, there is no difference between treaties and executive

agreements in terms of their binding effects on the contracting states concerned, as long as the
negotiating functionaries have remained within their powers. Neither, on the domestic sphere,
can one be held valid if it violates the Constitution. Authorities are, however, agreed that one is
distinct from another for accepted reasons apart from the concurrence-requirement aspect. As
has been observed by US constitutional scholars, a treaty has greater dignity than an executive
agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the
authority of the President, the Senate, and the people; a ratified treaty, unlike an executive
agreement, takes precedence over any prior statutory enactment. (Bayan Muna v. Romulo, G.R.
No. 159618, February 1, 2011)

A treaty and an executive agreement are both binding on the parties under
the pacta sunt servanda principle. There are no hard and fast rules on what subject
should be covered by a treaty or an executive agreement. Save for the situation and
matters contemplated in Sec. 25, Art. XVIII of the Constitution when a treaty is
required, the Constitution does not classify any subject, like that involving political
issues, to be in the form of, and ratified as, a treaty. What the Constitution merely
prescribes is that treaties need the concurrence of the Senate by a vote defined
therein to complete the ratification process. Thus, an exchange of notes is valid and
effective even without the concurrence by at least two-thirds of all the members of
the Senate.

Petitioner parlays the notion that the Agreement [US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement
between the USA and the RP] is of dubious validity, partaking as it does of the nature of a treaty;
hence, it must be duly concurred in by the Senate. Petitioner takes a cue from Commissioner of
Customs v. Eastern Sea Trading, in which the Court reproduced the following observations made by
US legal scholars: [I]nternational agreements involving political issues or changes of national policy
and those involving international arrangements of a permanent character usually take the form of
treaties [while] those embodying adjustments of detail carrying out well established national
policies and traditions and those involving arrangements of a more or less temporary nature take
the form of executive agreements.

Pressing its point, petitioner submits that the subject of the Agreement does not fall under
any of the subject-categories that are enumerated in the Eastern Sea Trading case, and that may be
covered by an executive agreement, such as commercial/consular relations, most-favored nation
rights, patent rights, trademark and copyright protection, postal and navigation arrangements and
settlement of claims.

In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales
and Merchant, holding that an executive agreement through an exchange of notes cannot be used to
amend a treaty.

We are not persuaded.

The categorization of subject matters that may be covered by international agreements

mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the
propriety of entering, on a given subject, into a treaty or an executive agreement as an instrument
of international relations. The primary consideration in the choice of the form of agreement is the
parties intent and desire to craft an international agreement in the form they so wish to further
112 | P a g e
their respective interests. Verily, the matter of form takes a back seat when it comes to
effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the
parties in either international agreement each labor under the pacta sunt servanda principle.

x x x Surely, the enumeration in Eastern Sea Trading cannot circumscribe the option of each
state on the matter of which the international agreement format would be convenient to serve its
best interest. As Francis Sayre said in his work referred to earlier:

x x x It would be useless to undertake to discuss here the large variety of executive

agreements as such concluded from time to time. Hundreds of executive agreements, other
than those entered into under the trade-agreement act, have been negotiated with foreign
governments. x x x They cover such subjects as the inspection of vessels, navigation dues,
income tax on shipping profits, the admission of civil air craft, custom matters and
commercial relations generally, international claims, postal matters, the registration of
trademarks and copyrights, etc. x x x

And lest it be overlooked, one type of executive agreement is a treaty-authorized or a

treaty-implementing executive agreement, which necessarily would cover the same matters subject
of the underlying treaty.

But over and above the foregoing considerations is the fact that save for the situation and
matters contemplated in Sec. 25, Art. XVIII of the Constitution when a treaty is required, the
Constitution does not classify any subject, like that involving political issues, to be in the form of,
and ratified as, a treaty. What the Constitution merely prescribes is that treaties need the
concurrence of the Senate by a vote defined therein to complete the ratification process.

xxx

Considering the above discussion, the Court need not belabor at length the third main issue
raised, referring to the validity and effectivity of the Agreement without the concurrence by at least
two-thirds of all the members of the Senate. The Court has, in Eastern Sea Trading, as reiterated
in Bayan, given recognition to the obligatory effect of executive agreements without the
concurrence of the Senate:

x x x [T]he right of the Executive to enter into binding agreements without the
necessity of subsequent Congressional approval has been confirmed by long usage. From the
earliest days of our history, we have entered executive agreements covering such subjects as
commercial and consular relations, most favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the settlement of claims. The
validity of these has never been seriously questioned by our courts.

(Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011)

An executive agreement that does not require the concurrence of the Senate
for its ratification may not be used to amend a treaty that, under the Constitution, is
the product of the ratifying acts of the Executive and the Senate.

Petitioners reliance on Adolfo is misplaced, said case being inapplicable owing to

different factual milieus. There, the Court held that an executive agreement cannot be used to
amend a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement
that does not require the concurrence of the Senate for its ratification may not be used to amend
a treaty that, under the Constitution, is the product of the ratifying acts of the Executive and the
Senate. The presence of a treaty, purportedly being subject to amendment by an executive
agreement, does not obtain under the premises. (Bayan Muna v. Romulo, G.R. No. 159618,
February 1, 2011)

A loan agreement -- between the Government of the Philippines and IBRD, an

international lending institution recognized as a subject of international law – is an
executive agreement. The Government of the Philippines is therefore obligated to
observe its terms and conditions under the rule of pacta sunt servanda.

As the parties have correctly discerned, Loan Agreement No. 4833-PH is in the nature
of an executive agreement. In Bayan Muna v. Romulo (Bayan Muna) the Court defined an
international agreement as one concluded between states in written form and governed by
international law, "whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation," and further expounded that it may be in
113 | P a g e
the form of either (a) treaties that require legislative concurrence after executive ratification; or
( b) executive agreements that are similar to treaties, except that they do not require legislative
concurrence and are usually less formal and deal with a narrower range of subject matters than
treaties. Examining its features, Loan Agreement No. 4833-PH between the IBRD and the Land
Bank is an integral component of the Guarantee Agreement executed by the Government of the
Philippines as a subject of international law possessed of a treaty-making capacity, and the
IBRD, which, as an international lending institution organized by world governments to
provide loans conditioned upon the guarantee of repayment by the borrowing sovereign state,
is likewise regarded a subject of international law and possessed of the capacity to enter into
executive agreements with sovereign states. Being similar to a treaty but without requiring
legislative concurrence, Loan Agreement No. 4833-PH - following the definition given in the
Bayan Muna case - is an executive agreement and is, thus, governed by international law.
Owing to this classification, the Government of the Philippines is therefore obligated to observe
its terms and conditions under the rule of pacta sunt servanda, a fundamental maxim of
international law that requires the parties to keep their agreement in good faith. It bears
pointing out that the pacta sunt servanda rule has become part of the law of the land through
the incorporation clause found under Section 2, Article II of the 1987 Philippine Constitution,
which states that the Philippines "adopts the generally accepted principles of international law
as part of the law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations."

xxx

Considering that Loan Agreement No. 4833-PH expressly provides that the
procurement of the goods to be financed from the loan proceeds shall be in accordance with the
IBRD Guidelines and the provisions of Schedule 4, and that the accessory SLA contract merely
follows its principal 's terms and conditions, the procedure for competitive public bidding
prescribed under RA 9184 therefore finds no application to the procurement of goods for the
Iligan City Water Supply System Development and Expansion Project. The validity of similar
stipulations in foreign loan agreements requiring the observance of IBRD Procurement
Guidelines in the procurement process has, in fact, been previously upheld by the Court xxx.
(Land Bank of the Philippines v. Atlanta Industries, G.R. No. 193796, July 2, 2014)

IMMUNITY OF A FOREIGN STATE FROM SUIT

A complaint based on an act of a foreign government done by its foreign

agent is barred by the immunity of the foreign sovereign from suits without its
consent. Thus, Philippine courts cannot have jurisdiction over US Navy officers for
acts committed in their official capacity.

The precept that a State cannot be sued in the courts of a foreign state is a long-standing
rule of customary international law then closely identified with the personal immunity of a
foreign sovereign from suit and, with the emergence of democratic states, made to attach not
just to the person of the head of state, or his representative, but also distinctly to the state itself
in its sovereign capacity. If the acts giving rise to a suit are those of a foreign government done
by its foreign agent, although not necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of the foreign sovereign from suit
without its consent. Suing a representative of a state is believed to be, in effect, suing the state
itself. The proscription is not accorded for the benefit of an individual but for the State, in whose
service he is, under the maxim -par in parem, non habet imperium -that all states are sovereign
equals and cannot assert jurisdiction over one another. The implication, in broad terms, is that
if the judgment against an official would require the state itself to perform an affirmative act to
satisfy the award, such as the appropriation of the amount needed to pay the damages decreed
against him, the suit must be regarded as being against the state itself, although it has not been
formally impleaded.

This traditional rule of State immunity which exempts a State from being sued in the
courts of another State without the former's consent or waiver has evolved into a restrictive
doctrine which distinguishes sovereign and governmental acts (Jure imperil") from private,
commercial and proprietary acts (Jure gestionis). Under the restrictive rule of State immunity,
State immunity extends only to acts Jure imperii.

The doctrine of immunity from suit will not apply and may not be invoked where the
public official is being sued in his private and personal capacity as an ordinary citizen. In this
case, the US respondents were sued in their official capacity as commanding officers of the US
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Navy who had control and supervision over the USS Guardian and its crew. The alleged act or
omission resulting in the unfortunate grounding of the USS Guardian on the TRNP was
committed while they were performing official military duties. Considering that the satisfaction
of a judgment against said officials will require remedial actions and appropriation of funds by
the US government, the suit is deemed to be one against the US itself. The principle of State
immunity therefore bars the exercise of jurisdiction by this Court over the persons of
respondents Swift, Rice and Robling. (Arigo v. Swift, G.R. No. 206510, September 16, 2014)

IMMUNITY OF WARSHIPS FROM THE JURISDICTION OF COASTAL STATES:

EXCEPTION UNDER UNCLOS

Under UNCLOS, the flag State shall bear international responsibility for any
loss or damage to the coastal State resulting from the non-compliance by a warship
or other government ship operated for non-commercial purposes with the laws and
regulations of the coastal State concerning passage.

While historically, warships enjoy sovereign immunity from suit as extensions of their
flag State, Art. 31 of the UNCLOS creates an exception to this rule in cases where they fail to
comply with the rules and regulations of the coastal State regarding passage through the latter's
internal waters and the territorial sea.

Although the US to date has not ratified the UNCLOS, as a matter of long-standing policy
the US considers itself bound by customary international rules on the "traditional uses of the
oceans" as codified in UNCLOS.

Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises
sovereignty, subject to the UNCLOS and other rules of international law. Such sovereignty
extends to the air space over the territorial sea as well as to its bed and subsoil.

In the case of warships, they continue to enjoy sovereign immunity subject to the
following exceptions:

Article 30
Non-compliance by warships with the laws and regulations of the coastal State

If any warship does not comply with the laws and regulations of the coastal State
concerning passage through the territorial sea and disregards any request for compliance
therewith which is made to it, the coastal State may require it to leave the territorial sea
immediately.

Article 31
Responsibility of the flag State for damage caused by a warship or other government ship
operated for non-commercial purposes

The flag State shall bear international responsibility for any loss or damage to the coastal
State resulting from the non-compliance by a warship or other government ship operated for non-
commercial purposes with the laws and regulations of the coastal State concerning passage
through the territorial sea or with the provisions of this Convention or other rules of international
law.

Article 32
Immunities of warships and other government ships operated for non-commercial
purposes

The flag States will be liable for damages caused by their warships while
navigating the Coastal State's territorial sea.

In fine, the relevance of UNCLOS provisions to the present controversy is beyond

dispute. Although the said treaty upholds the immunity of warships from the jurisdiction of
Coastal States while navigating the latter's territorial sea, the flag States shall be required to
leave the territorial sea immediately if they flout the laws and regulations of the Coastal State,
and they will be liable for damages caused by their warships or any other government vessel
operated for non-commercial purposes under Article 31. (Arigo v. Swift, G.R. No. 206510,
September 16, 2014)

DIPLOMATIC PROTECTION

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 How individuals may bring a claim within the international legal system:
Persuade his government to bring a claim on his behalf; here, it is not the
individual’s rights that are being asserted, but rather, the state’s own rights

Petitioners argue that the general waiver of claims made by the Philippine government in
the Treaty of Peace with Japan is void. They claim that the comfort women system established
by Japan, and the brutal rape and enslavement of petitioners constituted a crime against
humanity, sexual slavery, and torture. They allege that the prohibition against these
international crimes is jus cogens norms from which no derogation is possible; as such, in
waiving the claims of Filipina comfort women and failing to espouse their complaints against
Japan, the Philippine government is in breach of its legal obligation not to afford impunity for
crimes against humanity. Finally, petitioners assert that the Philippine government’s acceptance
of the "apologies" made by Japan as well as funds from the Asian Women’s Fund (AWF) were
contrary to international law.

xxx

In the international sphere, traditionally, the only means available for individuals to
bring a claim within the international legal system has been when the individual is able to
persuade a government to bring a claim on the individual’s behalf. Even then, it is not the
individual’s rights that are being asserted, but rather, the state’s own rights. Nowhere is this
position more clearly reflected than in the dictum of the Permanent Court of International
Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case:

By taking up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own right to
ensure, in the person of its subjects, respect for the rules of international law. The question,
therefore, whether the present dispute originates in an injury to a private interest, which in
point of fact is the case in many international disputes, is irrelevant from this standpoint. Once a
State has taken up a case on behalf of one of its subjects before an international tribunal, in the
eyes of the latter the State is sole claimant. (Vinuya v. Executive Secretary, G.R. No. 162230,
April 28, 2010)

The exercise of diplomatic protection is within the absolute discretion of the

State.

Since the exercise of diplomatic protection is the right of the State, reliance on the right
is within the absolute discretion of states, and the decision whether to exercise the discretion
may invariably be influenced by political considerations other than the legal merits of the
particular claim. As clearly stated by the ICJ in Barcelona Traction:

The Court would here observe that, within the limits prescribed by international law, a
State may exercise diplomatic protection by whatever means and to whatever extent it thinks fit,
for it is its own right that the State is asserting. Should the natural or legal person on whose
behalf it is acting consider that their rights are not adequately protected, they have no remedy in
international law. All they can do is resort to national law, if means are available, with a view to
furthering their cause or obtaining redress. The municipal legislator may lay upon the State an
obligation to protect its citizens abroad, and may also confer upon the national a right to
demand the performance of that obligation, and clothe the right with corresponding sanctions.
However, all these questions remain within the province of municipal law and do not affect the
position internationally.

The State, therefore, is the sole judge to decide whether its protection will be granted, to
what extent it is granted, and when will it cease. It retains, in this respect, a discretionary power
the exercise of which may be determined by considerations of a political or other nature,
unrelated to the particular case.

The International Law Commission’s (ILC’s) Draft Articles on Diplomatic Protection

fully support this traditional view. They (i) state that "the right of diplomatic protection belongs
to or vests in the State,"59 (ii) affirm its discretionary nature by clarifying that diplomatic
protection is a "sovereign prerogative" of the State;60 and (iii) stress that the state "has the right
to exercise diplomatic protection on behalf of a national. It is under no duty or obligation to do
so. (Vinuya v. Executive Secretary, G.R. No. 162230, April 28, 2010)

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 There is no general international obligation for States to exercise diplomatic
protection of their own nationals abroad.

It has been argued, as petitioners argue now, that the State has a duty to protect its
nationals and act on his/her behalf when rights are injured. However, at present, there is no
sufficient evidence to establish a general international obligation for States to exercise
diplomatic protection of their own nationals abroad. Though, perhaps desirable, neither state
practice nor opinio juris has evolved in such a direction. If it is a duty internationally, it is only a
moral and not a legal duty, and there is no means of enforcing its fulfillment. (Vinuya v.
Executive Secretary, G.R. No. 162230, April 28, 2010)

The Philippines does not have a non-derogable obligation to prosecute

international crimes

We fully agree that rape, sexual slavery, torture, and sexual violence are morally
reprehensible as well as legally prohibited under contemporary international law. However,
petitioners take quite a theoretical leap in claiming that these proscriptions automatically imply
that that the Philippines is under a non-derogable obligation to prosecute international crimes,
particularly since petitioners do not demand the imputation of individual criminal liability, but
seek to recover monetary reparations from the state of Japan. Absent the consent of states, an
applicable treaty regime, or a directive by the Security Council, there is no non-derogable duty to
institute proceedings against Japan. Indeed, precisely because of states’ reluctance to directly
prosecute claims against another state, recent developments support the modern trend to
empower individuals to directly participate in suits against perpetrators of international crimes.
Nonetheless, notwithstanding an array of General Assembly resolutions calling for the
prosecution of crimes against humanity and the strong policy arguments warranting such a rule,
the practice of states does not yet support the present existence of an obligation to prosecute
international crimes. Of course a customary duty of prosecution is ideal, but we cannot find
enough evidence to reasonably assert its existence. To the extent that any state practice in this
area is widespread, it is in the practice of granting amnesties, immunity, selective prosecution,
or de facto impunity to those who commit crimes against humanity." (Vinuya v. Executive
Secretary, G.R. No. 162230, April 28, 2010)

There is no showing that the crimes committed by the Japanese Army

violated jus cogens prohibitions; there in no recognized erga omnes obligation
mandating that a State prosecute perpetrators of international crimes

Even the invocation of jus cogens norms and erga omnes obligations will not alter this
analysis. Even if we sidestep the question of whether jus cogens norms existed in 1951,
petitioners have not deigned to show that the crimes committed by the Japanese army violated
jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute
perpetrators of international crimes is an erga omnes obligation or has attained the status of jus
cogens.

The term erga omnes (Latin: in relation to everyone) in international law has been used
as a legal term describing obligations owed by States towards the community of states as a
whole. The concept was recognized by the ICJ in Barcelona Traction:

x x x an essential distinction should be drawn between the obligations of a State towards

the international community as a whole, and those arising vis-à-vis another State in the field of
diplomatic protection. By their very nature, the former are the concern of all States. In view of
the importance of the rights involved, all States can be held to have a legal interest in their
protection; they are obligations erga omnes.

Such obligations derive, for example, in contemporary international law, from the
outlawing of acts of aggression, and of genocide, as also from the principles and rules
concerning the basic rights of the human person, including protection from slavery and racial
discrimination. Some of the corresponding rights of protection have entered into the body of
general international law … others are conferred by international instruments of a universal or
quasi-universal character.

The Latin phrase, ‘erga omnes,’ has since become one of the rallying cries of those
sharing a belief in the emergence of a value-based international public order. However, as is so

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often the case, the reality is neither so clear nor so bright. Whatever the relevance of obligations
erga omnes as a legal concept, its full potential remains to be realized in practice.

The term is closely connected with the international law concept of jus cogens. In
international law, the term "jus cogens" (literally, "compelling law") refers to norms that
command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms
are considered peremptory in the sense that they are mandatory, do not admit derogation, and
can be modified only by general international norms of equivalent authority.

x x x After an extended debate over these and other theories of jus cogens, the ILC
concluded ruefully in 1963 that "there is not as yet any generally accepted criterion by which to
identify a general rule of international law as having the character of jus cogens." x x x Thus,
while the existence of jus cogens in international law is undisputed, no consensus exists on its
substance, beyond a tiny core of principles and rules.

Of course, we greatly sympathize with the cause of petitioners, and we cannot begin to
comprehend the unimaginable horror they underwent at the hands of the Japanese soldiers. We
are also deeply concerned that, in apparent contravention of fundamental principles of law, the
petitioners appear to be without a remedy to challenge those that have offended them before
appropriate fora. Needless to say, our government should take the lead in protecting its citizens
against violation of their fundamental human rights. Regrettably, it is not within our power [the
Court] to order the Executive Department to take up the petitioners’ cause. Ours is only the
power to urge and exhort the Executive Department to take up petitioners’ cause. (Vinuya v.
Executive Secretary, G.R. No. 162230, April 28, 2010)

Extradition is the surrender by one nation to another of an individual accused

or convicted of an offense outside of its own territory, and within the territorial
jurisdiction of the other, which, being competent to try and to punish him, demands
the surrender. The right of a state to successfully request the extradition of a
criminal offender arises from a treaty with the requested state.

Extradition is "the surrender by one nation to another of an individual accused or

convicted of an offense outside of its own territory, and within the territorial jurisdiction of the
other, which, being competent to try and to punish him, demands the surrender." It is not- part
of customary international law, although the duty to extradite exists only for some international
crimes. Thus, a state must extradite only when obliged by treaty to do so. The right of a state to
successfully request the extradition of a criminal offender arises from a treaty with the requested
state. Absent the treaty, the duty to surrender a person who has sought asylum within its
boundaries does not inhere in the state, which, if it so wishes, can extend to him a refuge and
protection even from the state that he has fled. Indeed, in granting him asylum, the state
commits no breach of international law. But by concluding the treaty, the asylum state imposes
limitations on itself, because it thereby agrees to do something it was free not to do. The
extradition treaty creates the reciprocal obligation to surrender persons from the requested
state's jurisdiction charged or convicted of certain crimes committed within the requesting
state's territory, and is of the same level as a law passed by the Legislatures of the respective
parties.

Presidential Decree No. 1069 defines the general procedure for the extradition of persons
who have committed crimes in a foreign country, and lays down the rules to guide the Executive
Department and the courts of the Philippines on the proper implementation of the extradition
treaties to which the country is a signatory. Nevertheless, the particular treaties entered into by
the Philippine Government with other countries primarily govern the relationship between the
parties.

The RP-HK Agreement is still in full force and effect as an extradition treaty. The
procedures therein delineated regulate the rights and obligations of the Republic of the
Philippines and the HKSAR under the treaty in the handling of extradition requests.
(Government of Hong Kong Special Administrative Region v. Munoz, G.R. No. 207342, August
16, 2016)

Under the double criminality rule, the extraditable offense must be criminal
under the laws of both the requesting and the requested states. This simply means
that the requested state comes under no obligation to surrender the person if its
laws do not regard the conduct covered by the request for extradition as criminal.

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 For purposes of the extradition of Munoz, the HKSAR as the requesting state must
establish the following six elements, namely: (1) there must be an extradition treaty in force
between the HKSAR and the Philippines; (2) the criminal charges that are pending in the
HKSAR against the person to be extradited; (3) the crimes for which the person to be extradited
is charged are extraditable within the terms of the treaty; (4) the individual before the court is
the same person charged in the HKSAR; (5) the evidence submitted establishes probable cause
to believe that the person to be extradited committed the offenses charged; and (6) the offenses
are criminal in both the HKSAR and the Philippines (double criminality rule).

The first five of the elements inarguably obtain herein, as both the RTC and the CA
found. xxx

However, it was as to the sixth element that the CA took exception as not having been
established. Although the crime of conspiracy to defraud was included among the offenses
covered by the RP-Hong Kong Agreement, and the RTC and the CA have agreed that the crime
was analogous to the felony of estafa through false pretense as defined and penalized under
Article 315(2) of the Revised Penal Code, it was disputed whether or not the other crime of
accepting an advantage as an agent was also punished as a crime in the Philippines. As such, the
applicability of the double criminality rule became the issue.

Under the double criminality rule, the extraditable offense must be criminal under the
laws of both the requesting and the requested states". This simply means that the requested
state comes under no obligation to surrender the person if its laws do not regard the conduct
covered by the request for extradition as criminal.

The HKS AR defines the crime of accepting an advantage as an agent under Section
9(1)(a) of the Prevention of Bribery Ordinance (POBO), Cap. 201,39 to wit:
xxxx
A perusal of the decision of the RTC and the original decision of the CA show that said
courts determined that the crime of accepting an advantage as an agent was analogous to the
crime of corrupt practices of public officers as defined under Section 340 of Republic Act No.
3019 (Anti-Graft and Corrupt Practices Act). In its assailed amended decision, however, the CA
reversed itself, and agreed with Muñoz to the effect that Section 9(1)(a) of the POBO referred
only to private individuals, not to persons belonging to the public sector. Xxx

xxx

Based on the foregoing, the CA ultimately concluded that the crime of accepting an
advantage as an agent did not have an equivalent in this jurisdiction considering that when the
unauthorized giving and receiving of benefits happened in the private sector, the same was not a
crime because there was no law that defined and' punished such act as criminal in this
jurisdiction.
xxx
A careful reading shows that the foreign law subject-matter of this controversy deals with
bribery in both public and private sectors. However, it is also quite evident that the particular
provision of the POBO allegedly violated by Muñoz, i.e., Section 9(1 )(a), deals with private
sector bribery xxx.

xxx
Considering that the transactions were entered into by and in behalf of the Central Bank
of the Philippines, an instrumentality of the Philippine Government, Munoz should be charged
for the offenses not as a regular agent or one representing a private entity but as a public servant
or employee of the Philippine Government. Yet, because the offense of accepting an advantage
as an agent charged against him in the HKSAR is one that deals with private sector bribery, the
conditions for the application of the double criminality rule are obviously not met. Accordingly,
the crime of accepting an advantage as an agent must be dropped from the request for
extradition. Conformably with the principle of specialty embodied in Article 17 of the RP-HK
Agreement, Muñoz should be proceeded against only for the seven counts of conspiracy to
defraud. As such, the HKSAR shall hereafter arrange for Muñoz's surrender within the period
provided under Article 15 of the RP-HK Agreement. (Government of Hong Kong Special
Administrative Region v. Munoz, G.R. No. 207342, August 16, 2016)

Under the rule of specialty in international law, a Requested State shall

surrender to a Requesting State a person to be tried only for a criminal offense
specified in their treaty of extradition.

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 Under the rule of specialty in international law, a Requested State shall surrender to a
Requesting State a person to be tried only for a criminal offense specified in their treaty of
extradition. Conformably with the dual criminality rule embodied in the extradition treaty
between the Philippines and the Hong Kong Special Administrative Region (HKSAR), however,
the Philippines as the Requested State is not bound to extradite the respondent to the
jurisdiction of the HKSAR as the Requesting State for the offense of accepting an advantage as
an agent considering that the extradition treaty is forthright in providing that surrender shall
only be granted for an offense coming within the descriptions of offenses in its Article 2 insofar
as the offenses are punishable by imprisonment or other form of detention for more than one
year, or by a more severe penalty according to the laws of both parties. (Government of Hong
Kong Special Administrative Region v. Munoz, G.R. No. 207342, November 07, 2017)

UNCLOS AND ACQUISITION OF TERRITORY

UNCLOS III has nothing to do with the acquisition (or loss) of territory; it is a
multilateral treaty regulating, among others, sea-use rights over maritime zones;
States acquire (or conversely, lose) territory through occupation, accretion, cession
and prescription, not by executing multilateral treaties on the regulations of sea-use
rights or enacting statutes to comply with the treaty’s terms to delimit maritime
zones and continental shelves

Petitioners submit that RA 9522 "dismembers a large portion of the national territory"
because it discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of
Paris and related treaties, successively encoded in the definition of national territory under the
1935, 1973 and 1987 Constitutions. Petitioners theorize that this constitutional definition
trumps any treaty or statutory provision denying the Philippines sovereign control over waters,
beyond the territorial sea recognized at the time of the Treaty of Paris, that Spain supposedly
ceded to the United States. Petitioners argue that from the Treaty of Paris’ technical description,
Philippine sovereignty over territorial waters extends hundreds of nautical miles around the
Philippine archipelago, embracing the rectangular area delineated in the Treaty of Paris.

Petitioners’ theory fails to persuade us.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the
territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from
the baselines], exclusive economic zone [200 nautical miles from the baselines]), and
continental shelves that UNCLOS III delimits. UNCLOS III was the culmination of decades-long
negotiations among United Nations members to codify norms regulating the conduct of States
in the world’s oceans and submarine areas, recognizing coastal and archipelagic States’
graduated authority over a limited span of waters and submarine lands along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States
parties to mark-out specific basepoints along their coasts from which baselines are drawn, either
straight or contoured, to serve as geographic starting points to measure the breadth of the
maritime zones and continental shelf. Article 48 of UNCLOS III on archipelagic States like ours
could not be any clearer:

Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf. – The breadth of the territorial sea, the contiguous
zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic
baselines drawn in accordance with article 47.

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States
parties to delimit with precision the extent of their maritime zones and continental shelves. In
turn, this gives notice to the rest of the international community of the scope of the maritime
space and submarine areas within which States parties exercise treaty-based rights, namely, the
exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs,
fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the right to
exploit the living and non-living resources in the exclusive economic zone (Article 56) and
continental shelf (Article 77).

Even under petitioners’ theory that the Philippine territory embraces the islands and all
the waters within the rectangular area delimited in the Treaty of Paris, the baselines of the
Philippines would still have to be drawn in accordance with RA 9522 because this is the only

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way to draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn from
the boundaries or other portions of the rectangular area delineated in the Treaty of Paris, but
from the "outermost islands and drying reefs of the archipelago."

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement
or, as petitioners claim, diminution of territory. Under traditional international law typology,
States acquire (or conversely, lose) territory through occupation, accretion, cession and
prescription, not by executing multilateral treaties on the regulations of sea-use rights or
enacting statutes to comply with the treaty’s terms to delimit maritime zones and continental
shelves. Territorial claims to land features are outside UNCLOS III, and are instead governed by
the rules on general international law. (Magallona v. Ermita, G.R No. 187167, August 16, 2011)

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