DE JURE DE FACTO

Q: How are governments classified according to their legitimacy?

A: According to legitimacy, governments are either de jure or de facto merely. A government de jure is one
established by authority of the legitimate sovereign whereas a government de facto merely is one
established in defiance of the legitimate sovereign.

Classifications of de facto governments:

1. Government that gets possession and control of, or usurps by force or by the voice of majority.
(Rebellion)
2. Government which is established and maintained by invading military force. (Occupation)
3. Government established as an independent government by the inhabitants of a country who rise in
insurrection against the parent state. (Insurrection)

* governments by the Philippine Executive Commission and the Republic of the Philippines during the Japanese military
occupation being de facto governments, it necessarily follows that the judicial acts and proceedings of the courts of justice of
those governments, which are not of a political complexion, were good and valid, and, by virtue of the well-known principle of
postliminy (postliminium) in international law, remained good and valid after the liberation or reoccupation of the Philippines by
the American and Filipino forces under the leadership of General Douglas MacArthur

Co Kim Cham v. Valdez Tan Keh, 75 PHIL 113 (1945)

Facts:

Co Kim Chan had a pending civil case, initiated during the Japanese occupation, with the Court of First Instance of
Manila. After the Liberation of the Manila and the American occupation, Judge Arsenio Dizon refused to continue
hearings on the case, saying that a proclamation issued by General Douglas MacArthur had invalidated and nullified
all judicial proceedings and judgments of the courts of the Philippines and, without an enabling law, lower courts have
no jurisdiction to take cognizance of and continue judicial proceedings pending in the courts of the defunct Republic
of the Philippines (the Philippine government under the Japanese).

1. Co Kim Chan had a pending civil case initiated during the Japanese Occupation.
2. After the liberation of Manila, Judge Arsenio Dizon refused to continue hearings on the case saying a
proclamation that it had been invalidated and nullified.

Issue:

Whether or not judicial proceedings and decisions made during the Japanese occupation were valid and remained
valid even after the American occupation

Ruling:

Yes, because political and international law recognizes that all acts and proceedings of a de facto government are
good and valid. And, by virtue of the well-known principle of postliminy (postliminium) in international law, remained
good and valid after the liberation or reoccupation of the Philippines by the American and Filipino forces under the
leadership of General Douglas MacArthur.

Principle of Postliminy – the right by which persons and property seized in war are restored to their former status on
recovery.

The Philippines Executive Commission and the republic of the Philippines under the Japanese occupation may be
considered de facto government, supported by the military force and deriving their authority from the law of war.
MAIN POINT: POLITICAL AND INTERNATION LAW RECOGNIZES THAT ALL ACTS AND PROCEEDINGS OF A DE
FACTO GOVERNMENT ARE GOOD AND VALID. The Philippine Executive Commission and the
Republic of the Philippines during the Japanese military occupation are de facto governments.

Q: Was the government under Cory Aquino and the Freedom Constitution a de jure government?

A: Yes, because it was established by authority of the legitimate, sovereign, the people. It was a revolutionary
government established in defiance of the 1973 Constitution.

Freedom Constitution – was intended as transitional basic law to ensure democracy and freedom of the people and
an orderly transfer of power as the Constitutional Commission was drafting a permanent charter.

In re Letter of Associate Justice Puno, 210 SCRA 588

Facts:

Petitioner Assoc. Justice Reynato S. Puno, a member of the Court of Appeals (CA) wrote a letter addressed to the
Supreme Court correcting his seniority ranking in the CA. The petitioner was first appointed as Associate Justice of
the CA. However, the CA was reorganized and became the Intermediate Appellate Court (IAC) pursuant to Batas
Pambansa Blg. 129 entitled “An Act Reorganizing the Judiciary. Appropriating Funds Therefor and For Other
Purposes”. He was appointed Appellate Justice in the First Special Cases Division of the IAC and he accepted it.
EDSA Revolution in February 1986 leads to reorganization of the entire government including the Judiciary . A
screening committee created and President Corazon Aquino issued Executive Order No. 33 to govern the
aforementioned reorganization of the Judiciary as an exercise of her legislative power. The Screening Committee
recommended the petitioner as Associate Justice of the New Court of Appeals (NCA) and assigned him as rank 11 in
the list of appellate court justices. When the appointments were signed by Pres. Aquino, petitioner’s seniority ranking
changed from 11 to 26. Petitioner claims that the change in his seniority ranking is contrary to E.O. No. 33. In resolve
of the Court en banc they granted Justice Puno’s request. A motion for reconsideration was later filed by Associate
Justices Jose C. Campos, Jr. and Luis A. Javella who were affected by the ordered correction by the petitioner. They
contend that the present Court of Appeals is a new Court and that petitioner could not claim a reappointment to a
prior court; neither can he claim that he was returning to his former court, for the courts where he had previously been
appointed ceased to exist at the date of his last appointment.

1. Petitioner Associate Justice Reynato S. Puno, member of the CA, wrote a letter to the SC correcting his
seniority ranking in the CA.
2. He was first appointed as Associate Justice in the CA.
3. Pursuant to BP Blg. 129 An act reorganizing the juidiciary, the court of appeals became intermediate
appellate court where the petitioner accepted to be an appellate justice.
4. EDSA Revolution I February 1986 leads to a reorganization of the government including the judiciary.
5. The President Cory Aquino created a screening committee and issued EO No. 33 to govern the
reorganization of the judiciary.
6. The screening committee recommended the petitioner as rank 11 in the list of appellate court justices.
7. However, when the president signed the appointment, the petitioner’s rank changed from 11 to 26.
8. He claims that its contrary to the EO no.33
9. The court en banc then granted petitioner’s request.
10. Then, a motion for reconsideration was filed by Associate Justices Campos and Javella whose rank was
affected by the ordered correction.
11. They contend that the petitioner cannot claim for reappointment nor can he claim that he was returning to
his former court.
Issue:
Whether or not the current CA is a new court or merely a continuation of the old CA and IAC that would disprove any
claim to seniority enjoyed by the petitioner existing prior to EO No. 33.

Ruling:
It is the holding of the Court that the present Court of Appeals is a new entity, different and distinct from the Court of
Appeals or the Intermediate Appellate Court existing prior to Executive Order No. 33, for it was created in the wake of
the massive reorganization launched by the revolutionary government of Corazon C. Aquino in the result of the
people power (EDSA) revolution in 1986. A revolution has been defined as the complete overthrow of the established
government in any country or state by those who were previously subject to it as a sudden, radical, and fundamental
change in the government or political system, usually effected with violence. A government as a result of people's
revolution is considered de jure if it is established by authority of the legitimate sovereign, the people. In the new
government under Pres. Aquino, shows the direct exercise of the Filipino power. Therefore, it is the present CA that
would disprove the claims of Justice Puno concerning his seniority ranking.

Q: Was the government under Gloria Macapagal Arroyo established after the ouster of President Estrada de
jure or de facto merely?
A: De jure. Article VII, Section 8.In case of death, permanent disability, removal from office, or resignation of the
President, the Vice-President shall become the President to serve the unexpired term.

Case Digest

Romulo L. Neri, petitioner

versus
Senate Committee on Accountability of Public Officers and Investigations, Senate Committee on Trade
and Commerce, and Senate Committee on National Defense and Security, respondents

G.R. No. 180643, March 25, 2008

Facts:
On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a
contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and
services for the National Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290
(approximately P16 Billion Pesos). The Project was to be financed by the People’s Republic of China.
The Senate passed various resolutions relative to the NBN deal. In the September 18, 2007 hearing, Jose
de Venecia III testified that several high executive officials and power brokers were using their influence 
to push the approval of the NBN Project by the NEDA.

Neri, the head of NEDA, was then invited to testify before the Senate Blue Ribbon. He appeared in one
hearing wherein he was interrogated for 11 hours and during which he admitted that Abalos of
COMELEC tried to bribe him with P200 million in exchange for his approval of the NBN project. He
further narrated that he informed President Arroyo about the bribery attempt and that she instructed
him not to accept the bribe.

However, when probed further on what they discussed about the NBN Project, petitioner refused to
answer, invoking “executive privilege”. In particular, he refused to answer the questions on:
 Whether or not President Arroyo followed up the NBN Project,
 Whether or not she directed him to prioritize it, and
 Whether or not she directed him to approve.

He later refused to attend the other hearings and Ermita sent a letter to the Senate averring that the
communications between GMA and Neri are privileged and that the jurisprudence laid down in Senate
vs Ermita be applied. He was cited in contempt of respondent committees and an order for his arrest
and detention until such time that he would appear and give his testimony.

Issue:

Are the communications elicited by the three (3) questions covered by executive privilege?

Held:

Yes, they are covered by executive privilege. The revocation of EO 464 which advised executive officials
and employees to follow and abide by the Constitution, existing laws and jurisprudence including the
case of Senate v. Ermita when they are invited to legislative inquiries in aid of legislation, does not
diminish the concept of executive privilege because it has Constitutional basis. Under our Constitution,
the President is the repository of executive powers, and consistent with the doctrine of separation of
powers, the information relating to these powers may enjoy greater confidentiality than others.
Several jurisprudence cited provide the elements of presidential communications privilege:
1. The protected communication must relate to a quintessential and non-delegable presidential
power.
2. The communication must be authored or solicited and received by a close advisory of the
President or the President himself.
3. The presidential communications privilege remains a qualified privilege that may be overcome
by a showing of adequate need, such that the information sought “likely contains important
evidence” and by the unavailability of the information elsewhere by an appropriate investigating
authority.
The current state of the law of presidential privilege, described more fully below, may be briefly summarized as
follows:

The constitutionally based presidential communications privilege is presumptively valid when asserted.
There is no requirement that the president must have seen or even been aware of the documents over which he or
she claims privilege.

The communication(s) in question must relate to a “quintessential and non-delegable presidential power” that
requires direct presidential decision-making. The privilege is limited to the core constitutional powers of the
president, such as the power to appoint and remove executive officials, the commander-in-chief power, the sole
authority to receive ambassadors and other public ministers, and the pardon power. The privilege does not cover
matters handled within the broader executive branch beyond the Executive Office of the President. Thus, it does not
cover decision-making regarding the implementation of laws that delegate policymaking authority to the heads of
departments and agencies, or which allow presidential delegations of authority.

The subject communication must be authored or “solicited and received” by the president or a close White House
adviser. The adviser must be in “operational proximity” to the president, which effectively limits coverage of the
privilege to the administrative boundaries of the Executive Office of the President and the White House.

The privilege remains a qualified privilege that may be overcome by a showing that the information sought “likely
contains important evidence” and is unavailable elsewhere to an appropriate investigatory authority. The president
may not prevent such a showing of need by granting absolute immunity to witnesses who would otherwise provide
the information necessary to show that “important” evidence exists.

Neri vs. Senate

1. DOTC entered into contract with ZTE to supply for the NBN project. National Broadband Network

2. In a Senate hearing involving a contract with a Chinese firm, Neri in his capacity as head of NEDA (National
Economic and Development Authority) was asked three questions:
a. Whether the President followed up the (NBN) project?
b. Whether the President directed him to prioritize ZTE?
c. Whether the President said to go ahead and approve the project after being told about the alleged bribe?

Neri claimed the executive privilege.

ISSUE: whether or not the communications elicited by the three (3) questions are covered by executive privilege?

YES. EXECUTIVE PRIVILEGE is the power of the President to withhold certain types of information from the courts,
the Congress, and ultimately the public in pursuit of public interest.
Under our Constitution, the President is the repository of executive powers, and may enjoy greater confidentiality than
others. In reference to several jurisprudence

First, the communications relate to a “quintessential and non-delegable power” of the President, i.e. the power to
enter into an executive agreement with other countries. This authority of the President to enter into executive
agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence.

Second, the communications are “received” by a close advisor of the President. Under the “operational proximity”
test, petitioner can be considered a close advisor, being a member of President Arroyo’s cabinet.

And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of
the unavailability of the information elsewhere by an appropriate investigating authority.
The type of executive privilege claimed here was “PRESIDENTIAL COMMUNICATION PRIVILEGE”.

Facts:

The issue started when petitioner Gamboa questioned the indirect sale
of shares involving almost 12 million shares of the Philippine Long
Distance Telephone Company (PLDT) owned by PTIC to First Pacific.
Thus, First Pacific’s common shareholdings in PLDT increased from
30.7 percent to 37 percent, thereby increasing the total common
shareholdings of foreigners in PLDT to about 81.47%. The petitioner
contends that it violates the Constitutional provision on filipinazation of
public utility, stated in Section 11, Article XII of the 1987 Philippine
Constitution, which limits foreign ownership of the capital of a public
utility to not more than 40%. Then, in 2011, the court ruled the case in
favor of the petitioner, hence this new case, resolving the motion for
reconsideration for the 2011 decision filed by the respondents.

Issue: Whether or not the Court made an erroneous interpretation of the

term ‘capital’ in its 2011 decision?
Held/Reason: The Court said that the Constitution is clear in expressing
its State policy of developing an economy ‘effectively controlled’ by
Filipinos. Asserting the ideals that our Constitution’s Preamble want to
achieve, that is – to conserve and develop our patrimony , hence, the
State should fortify a Filipino-controlled economy. In the 2011 decision,
the Court finds no wrong in the construction of the term ‘capital’ which
refers to the ‘shares with voting rights, as well as with full beneficial
ownership’ (Art. 12, sec. 10) which implies that the right to vote in the
election of directors, coupled with benefits, is tantamount to an effective
control. Therefore, the Court’s interpretation of the term ‘capital’ was not
erroneous. Thus, the motion for reconsideration is denied.

cannot be deprived of the right to

vote in any corporate meeting, and
any provision in the
articles of incorporation restricting
the right of common shareholders
to vote is invalid.
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. Thus, 60 percent
of the "capital" assumes, or should
result in, "controlling interest" in
the corporation and thus in
the present case, only to
common shares, and not to
the total outstanding capital
stock
(common and non-voting preferred
shares.
The Supreme Court ruled that the
term "capital" in Section 11,
Article XII of the 1987
Constitution refers only to shares
of stock entitled to vote in the
election of directors, and thus in
the present case only to common
shares, and not to the total
outstanding capital stock (common
and non-voting preferred shares).
Respondent Chairperson of the
Securities and Exchange
Commission is DIRECTED to
apply this definition of the term
"capital" in determining the extent
of allowable foreign ownership in
respondent Philippine Long
Distance Telephone Company,
and if there is a violation of
Section 11, Article XII of the
Constitution, to impose the
appropriate
sanctions under the law.
WILSON GAMBOA VS.
TEVES
GR 176579 June 21, 2011
DOCTRINE
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.
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.