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SC Clarifies "Three-Term Limit" Rule, Proclaims Abundo Winner of 2010 Mayoral

Elections in Viga, Catanduanes


The Supreme Court En Banc has partly granted the petition for certiorari under rule 65 of Abelardo Abundo, Sr., Mayor of
Viga, Catanduanes, setting aside the Commission on Elections (COMELEC) Second Division Resolution dated February 8,
2012, COMELECs En Banc resolution in EAC (EA) No. A-25-2010 dated May 10, 2012, and the Regional Trial Court (RTC) of
Virac, Catanduanes Branch 43s Decision in Election Case No. 55 dated August 9, 2010, which declared Abundo ineligible to
run in the 2010 Mayoral elections of Viga, Catanduanes under the three-term limit rule.
Abundo ran for the position of Municipal Mayor of Viga, Catanduanes in the years 2001, 2004, 2007, and 2010. He was
proclaimed winner of the 2001 and 2007 elections. In the 2004 election, however, Jose Torres was proclaimed the winner of
the electoral race and Mayor of Viga, performing the functions of the office. Abundo protested Torres election and was
eventually declared the winner of the 2004 mayoralty electoral contest. He assumed office from May 9, 2006 until the end of
the 2004-2007 term on June 30, 2007.
As a result of such reversal, the Court declared Abundo eligible for another term as Mayor to which he was duly elected in the
May 2010 elections and immediately reinstated him to such position. Emeterio M. Tarin and Cesar O. Cervantes were also
ordered to immediately vacate the positions of Mayor and Vice-Mayor of Viga, Catanduanes, respectively and to revert to
their original positions of Vice-Mayor and first Councilor, respectively, upon receipt of this Decision, which is immediately
executory. The Court likewise lifted the Temporary Restraining Order (TRO) it issued on July 3, 2012 to restrain the
COMELEC from enforcing the abovementioned resolutions.
As provided for in Section 8, Article X of the 1987 Constitution and Sec. 43(b) of the Local Government Code, the three-term
limit rule constitutes a disqualification to run for an elective local office when an official has been elected for three
consecutive terms in the same local government post and has fully served those three consecutive terms.
In the Courts 35-page decision, written by Justice Presbitero J. Velasco, Jr., it unanimously held that Abundo did not serve
three consecutive terms as Mayor of Viga, Catanduanes due to an actual involuntary interruption during the 2004-2007 term.
This was because he assumed the mayoralty post only on May 9, 2006 and served a little over one year and one month only.
Thus, the two-year period which his opponent, Torres, was serving as mayor should be considered as an interruption, which
effectively removed Abundos case from the ambit of the three-term limit rule, ruled the Court.
The Court further ruled that the COMELEC erred in applying Aldovino, Jr. v. Commission on Elections, which held that
service of the unexpired portion of a term by a protestant who is declared winner in an election protest is considered as
service for one full term within the contemplation of the three-term limit rule as the doctrine refers to a situation where the
elected official is under preventive suspension and is only temporarily unable to discharge his functions yet is still entitled to
the office as compared to the situation of Abundo where he did not have title to the office. The Court emphasized that pending
the favorable resolution of Abundos election protest, he was relegated to being an ordinary constituent and private citizen
since his opponent, as presumptive victor in the 2004 elections, was occupying the mayoralty seat. While awaiting the
pendency of the election protest, Abundo ceased from exercising power or authority over the constituents of Viga and cannot
be said to have retained title to the mayoralty office as he was at that time not the duly proclaimed winner. It stressed that
Abundos case differs from other cases involving the effects of an election protest because while Abundo was the winning
candidate, he was the one deprived of his right and opportunity to serve his constitutents.
In his separate opinion, Justice Arturo D. Brion wrote to briefly expound on the Courts ruling in Aldovino, Jr. v.
Commission on Elections which the COMELEC erroneously relied upon in affirming the grant of the quo warranto petition
against Abundo, and to express my own views on how our present Decision should be read in light of other three-term limit
cases that have been decided under a protest case scenario. He stressed that the Court cannot avoid considering the
attendant factual and legal realities, based on the requirements that Borja established, and has no choice but to adjust its
appreciation of these realities, as may be necessary.
Justice Brion agreed that the Aldovino ruling relied upon by COMELEC cannot be used as a basis for the conclusion that
there had been no interruption in the case of Abundo - the eventual winner who is so recognized only after winning his
protest case. Notably in Aldovino, while preventive suspension is an involuntary imposition, what it affects is merely the
authority to discharge the functions of an office that the suspended local official continues to hold the local elective official
continues to possess title to his office while under preventive suspension, so that no interruption of his term ensues.
After discussing the prevailing jurisprudence cited by the majority (Ong v. Alegre, Lonzanida v. Commission on Elections,
and Borja, Jr. v. Commission on Elections), Justice Brion pointed out that the differing factual situations of the cited cases
and Abundo that necessarily gave rise to different perspectives in appreciating the same legal question, immediately suggest
that the Courts ruling in the cited cases cannot simply be combined nor wholly be bodily lifted and applied to Abundo. At the
simplest, both Lonzanida and Ong were protestees who faced the same legal reality of losing the election, although Ong fully
served the elected term; for Abundo, the legal reality is his recognized and declared election victory, In terms of factual
reality, Lonzanida and Abundo may be the same since they only partially served their term, but this similarity is fully negated

by their differing legal realities with respect to the element of election. Ong and Abundo, on the other hand, have differing
legal and factual realities; aside from their differing election results, Ong served the full term, while Abundo only enjoyed
abbreviated term.
Based on this analysis, Justice Brion concluded his separate opinion by stressing that Abundo should not be considered to
have been elected for the full term for purposes of the three-term limit rule, despite the legal reality that he won the election;
as in Ong, the factual reality should prevail, and that reality is that he served for less than this full term. Thus, where less than
a full term is served by a winning protestant, no continous and uninterrupted term should be recognized. This is the view that
best serves the purpose of the three-term limit rule.
Justice Teresita J. Leonardo-De Castro joined Justice Brions separate opinion.

The Court also summarized the prevailing jurisprudence on issues affecting consecutiveness of terms and involuntary
interruption.
Borja, Jr. v. Commission on Elections provides that when a permanent vacancy occurs in an elective position and the official
merely assumed the position through succession, his service for the unexpired portion of the term cannot be treated as one
full term.
Montebon v. Commission on Elections supplemented this by saying that if the official runs again for the same position he
held rior to his assumption of the higher office, his succession to said position is by operation of law and is considered an
involuntary severance or interruption.
On the issue of recall elections, Adormeo v. Commission on Elections and Socrates v. Commission on Elections held that an
elective official, who has served for three consecutive terms and who did not seek the elective position for what could be his
fourth trm, but later won in a recall election, had an interruption in the continuity of the officials servicefor he had become in
the interim a private citizen.
Latasa v. Commission on Elections ruled that the abolition of an elective office due to the conversion of a municipality to a
city does not, by itself, work to interrupt the incumbent officials continuity of service.
As mentioned above, Aldovino, Jr. v. Commission on Elections states that preventive suspension is not a term interrupting
event as the elective officers continued stay and entitlement to the office remain unaffected during the period of suspension,
although he is barred from exercising the functions of the office during this period.
Lonzanida v. Commission on Elections and Dizon v. Commission on Elections continued on to rule that when a candidate is
proclaimed as winner for an elective position and assumes office, his term is interrupted when he losess in an election protest
and is ousted from office. An interruption for any length of time, provided the cause is involuntary is sufficient to break the
continuity of service.
Lastly, Ong v. Alegre and Rivera III v. Commission on Elections declared when an official is defeated in an election protest
and decision becomes final only after the official had served the full term for the 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 should be
counted in the application of term limits because the nullification of his proclamation came after the expiration of the term.
(GR No. 201716, Abundo v. Commission on Elections, January 8, 2013)

SC Reinstates Remorseful Lawyer Dismissed for Immorality


Posted: February 7, 2013; By Jay B. Rempillo

The Supreme Court recently granted the petition (for extraordinary mercy) of a lawyer dismissed for immorality in 2004 to
be reinstated in the Roll of Attorneys after the same has sufficiently atoned for his transgressions.
In a six-page resolution penned by Justice Estela M. Perlas-Bernabe, the Court En Banc ordered the reinstatement in the Roll
of Edmundo L. Macarubbo who, at 58 years of age, still has productive years ahead of him that could significantly contribute
to the upliftment of the law profession and the betterment of society. It added that while the Court was mindful of its duty to
discipline and even remove its errant officers, it also has a duty to show compassion to those who have reformed their ways as
in Macarubbos case.
In 2004, Macarubbo was disbarred for having contracted a bigamous marriage with complainant Florence Teves and a third
marriage with one Josephine Constantino while his first marriage to Helen Esparza was still subsisting, which acts
constituted gross immoral conduct in violation of Canon 1, Rule 1.01 and Canon 7, Rule 7.03 of the Code of Professional
Responsibility.
The Court held that Macarubbo has sufficiently shown his remorse and acknowledged his indiscretion in the legal profession
and in his personal life and has since asked forgiveness from his children by complainant Teves and maintained a cordial
relationship with them as proved by his photo evidence. It noted that following his disbarment, Macarubbo has returned to
his hometown in Enrile, Cagayan and devoted his time tending an orchard and taking care of his ailing mother until her death

in 2008. He also worked for the local government of Enrile, Cagayan, as well as taught part-time instructor at the University
of Cagayan Valley and F.L. Vargas College and took an active part in socio-civic activities.
Macarubbos plea for reinstatement, the Court noted, was also duly supported by the Integrated Bar of the Philippines,
Cagayan Chapter and his parish priest Rev. Fr. Camilo Castillejos, Jr., among others. Furthermore, records reveal that he has
already settled his previous marital squabbles and sends regular support to his children. (Macarubbo v. Macarubbo, AC No.
6148, January 22, 2013)

SC Reiterates Prior Payment of Taxes Not Required in Applying Transitional Input


Tax Credit
Posted: February 7, 2013; By Bianca M. Padilla

Voting 10-4, the Supreme Court En Banc denied with finality the Commissioner of Internal Revenues (CIR) motion for
reconsideration asking to reverse the Courts decision dated September 4, 2012. The decision found the CIR liable to Fort
Bonifacio Development Corporation (FBDC) for the amount of P359,652,009.47, which was erroneously paid by FBDC as
output VAT for the first quarter of 1997 in light of the transitional input tax credit available to it for that quarter. The 2012
decision gave the CIR the option to refund or issue a tax credit certificate the aforementioned amount in favor of FBDC.
Earlier, the Court of Tax Appeals (CTA) denied FBDCs claim for refund since the benefit of transitional input tax credit
comes with the condition that business taxes should have been paid first. The Court of Appeals (CA) affirmed the decision of
the CTA claiming no VAT was paid when FBDC bought Fort Bonifacio Global City. The Supreme Court En Banc, however,
found merit in FBDCs petition for review on certiorari and reversed the CAs decision granting FBDC its refund since Section
105 of the old National Internal Revenue Code (NIRC) makes no mention that prior payment of taxes is necessary for the
availment of the 8% transitional input tax credit.
In a 10-page resolution penned by Justice Mariano C. Del Castillo, the Court, with a vote of 10-4, stressed that the same issues
presented have been squarely ruled upon by this Court in the earlier Fort Bonifacio case and no substantial argument had
been adduced to warrant the reconsideration sought.
Citing Fort Bonifacio Development Corporation v. CIR dated April 2, 2009 and Commissioner of Internal Revenue v. Central
Luzon Drug Corp. dated April 15, 2005, the Court repeated that prior payment of taxes is not necessary before a taxpayer can
avail of the 8% transitional input tax credit. All that is required by Section 105 to avail of the refund or tax credit is for the
taxpayer to file a beginning inventory with the Bureau of Internal Revenue (BIR).
In his dissenting opinion, Senior Associate Justice Antonio T. Carpio argued that the grant of a cash refund to reimburse
FBDC for excess transitional input tax it previously paid is not authorized by law based on four reasons: first, the land sold
was not subject to input VAT; second, the Tax Code does not allow a cash refund of excess input VAT; third, even for zerorated or effectively zer-rated VAT-registered taxpayes, the Tax Code does not allow any cash refund or credit of transitional
input tax; and fourth, a cash refund, not being supported by any prior actual tax payment, would result in public funds being
used to pay for the refund which is for the exclusive benefit of a private entity, thus unconstitutional. Chief Justice Maria
Lourdes P.A. Sereno and Associate Justices Estela M. Perlas-Bernabe and Marvic M.V.F. Leonen joined Justice Carpios
dissent. (GR No. 173425, Fort Bonifacio Development Corporation v. CIR, January 22, 2013)

SC Upholds Dismissal of Malversation Raps against Arroyo, et al. re Alleged OWWA


Funds Misuse
Posted: February 6, 2013; By Jay B. Rempillo

In a two-page minute resolution dated January 17, 2013, the Supreme Court effectively upheld the Office of the Ombudsman
(Ombudsman)s dismissal of the criminal charges filed by former Solicitor General Francisco I. Chavez against former
President Gloria Macapagal Arroyo, et al. in connection with the alleged misuse of Overseas Workers Welfare Administration
(OWWA) funds in 2004.
The Courts Third Division denied the petition and affirmed the February 10, 2012 memorandum and September 25, 2012
supplemental memorandum of the Ombudsman for petitioner Chavezs failure to show any reversible error committed by the
Ombudsman.
The Court agreed with the Ombudsman in: (a) dismissing the complaint against Arroyo, et al.; (2) holding that the transfer of
OWWA funds to Philhealth is valid, and; (c) the OWWA funds were used legally. Unless tainted with grave abuse of
discretion, the judgments and orders of the Ombudsman shall not be reversed, modified or otherwise interfered with by the
Court, the resolution stated.
In his Petition for Review on Certiorari under Rule 45, Chavez, among others, sought the reversal of the assailed Ombudsman
rulings approving the resolution of a Department of Justice (DOJ) Panel of Investigators that recommended the dismissal of
malversation charges against Arroyo for the alleged illegal transfer of P530,382,445 in OWWA Medicare Fund to the
Philippine Health Insurance Corporation (PHIC) and of the $350,000 from the OWWA Capital Fund to several labor
attachs in the Middle East during the US-Iraq crisis. (Chavez v. Arroyo, GR Nos. 203884-85, Min. Res., January 17, 2013)

SC Grants PLDT's Petition to Set Aside Quashal of Search Warrants


Posted: February 4, 2013

The Supreme Court has granted the petition of the Philippine Long Distance Telephone (PLDT) to reverse and set aside the
rulings of the Court of Appeals (CA) that upheld a trial courts joint order quashing two search warrants and ordering the
return of seized equipment to a company allegedly involved in International Simple Resale (ISR) or unauthorized sale of
international long distance calls.
In a 39-page consolidated decision, the Court agreed with the former Fourth (4th) Division of CA which had ruled that there
was indeed grave abuse of discretion on the part of the trial court in the premature haste attending the release of the items
seized.
The search warrants were sought by the Presidential Anti-Organized Crime Task Force (PAOCTF) in 2000 against HPS
Corporation, et al. for violation of Art. 308 of the Revised Penal Code (RPC) and PD 401 (unauthorized installation of
telephone communication equipment) following PLDTs complaint that they were able to monitor the use of HPS
Corporation, et al.s in their premises of Mabuhay card and equipment capable of receiving and transmitting calls from the
United States of America to the Philippines without these calls passing through PLDTs facilities. HPS Corporation, et al. were
engaged in the business of ISR. An alternative call pattern employed by communication provider outside of the country, ISR
is a method of routing and completing international long distance calls using lines, cables, antennae, and/or air wave
frequency which connect directly to the local or domestic exchange facilities of the country where the call is destined.
The High Court ruled that the two search warrants were improperly quashed. It found merit in PLDTs arguments that the CA
Eighteenth (18th) Division erroneously appreciated the facts of the case and the significance of the evidence on record when it
sustained the quashal of the subject search warrants by the trial court mainly on the basis of test calls using a Mabuhay card
with PIN code number 332 1479224, which was the same Mabuhaycard that was presented by PLDT to support its
application for a search warrant against HPS Corporation, et al.
The Court refused to subscribe to the conclusion that the determination of whether or not test calls were indeed made by
PLDT on the Mabuhay card with PIN code number 332 1479224 cannot be ascertained solely by checking the value reflected
on the said Mabuhay card. It noted that PLDT never represented that the Mabuhay card had an accurate recording system
that would automatically deduct the value of a call from the value of the card at the time the call was made.
The Court also held that since the value of the subject Mabuhay card may be susceptible to tampering, it would have been
more prudent for the trial court and the CA to weigh the other evidence on record.
The Court found that the pieces of evidence presented by PLDT, when taken together, were more than sufficient to support a
finding that test calls were indeed made by PLDTs witnesses using Mabuhay card with PIN code number 332 1479224 and,
more importantly, that probable cause necessary to engender a belief that HPS Corporation, et al. had probably committed

the crime of Theft through illegal ISR activities exists. These pieces of evidence include affidavits of PLDT people, call detail
records, results of a traffic study conducted by PLDT on 20 direct telephone lines subscribed by HPS, among others.
The Court also found that the subject search warrants were not general warrants because the items to be seized were
sufficiently identified physically and were also specifically identified by stating their relation to the offenses charged which
are Theft and Violation of PD 401 through the conduct of illegal ISR activities. According to the Court, a search warrant
issued must particularly describe the place to be searched and persons or things to be seized in order for it to be valid,
otherwise, it is considered as a general warrant which is proscribed by both jurisprudence and the 1987 Constitution.

The Court held that PLDT had legal personality to file the petition saying that the case at bar does not involve an ordinary
criminal action which requires the participation and conformity of the City Prosecutor or the Solicitor General when raised
before appellate courts. The Court further held that PLDTs petition before the CA was properly given due course despite the
non-fulfillment of the requirement of the filing of a motion of reconsideration (of the May 23, 2001 Joint Order) due to the
peculiar circumstances obtaining in this case. It said that the said rule is not absolute and that jurisprudence has laid down
exceptions, which include where petitioner was deprived of due process, when the filing of a petition for certiorari is proper
notwithstanding the failure to file a motion for reconsideration. In the case at bar, the Court stressed that it was apparent
that PLDT was deprived of due process when the trial court expeditiously released the items seized by virtue of the subject
search warrants without waiting for PLDT to file its memorandum and despite the fact that no motion for execution was filed
by respondents which is required in this case.

The Court also held that PLDT did not commit forum shopping because the appeal that PLDT elevated to the CA was an
examination of the validity of the trial courts action of quashing the search warrants that it initially issued while, on the other
hand, the petition for certiorari was an inquiry on whether or not the trial court judge committed grave abuse of discretion
when he ordered the release of the seized items subject of the search warrants despite the fact that its May 23, 2001 Joint
Order had not yet become final and executory.
The Court reversed Laurel v. Abrogar which had ruled that ISR activity does not constitute the crime of theft under Art. 308
of the RPC since international long distance calls and the business of providing telecommunication or telephone services are
not personal properties under Art. 308 of the RPC when it granted PLDTs motion for reconsideration. Here, the Court
categorically stated that an ISR activity is an act of subtraction covered by the provisions on Theft, and that the business of
providing telecommunication or telephone service is personal property, which can be object of Theft under Article 308 of the
Revised Penal Code (RPC). (HPS Software and Communication Corporation v. PLDT, GR No. 170217; PLDT v. HPS Software
and Communication Corporation, GR No. 170694, Dec. 10, 2012)

SC Modifies Compliance by Public Prosecutors with Judicial Affidavit Rule


Posted: January 9, 2013; Bianca M. Padilla

The Supreme Court En Banc, acting on the petition dated December 12, 2012 from the Prosecutors League of the Philippines
(PLP) for the deferment of the effectivity of the Judicial Affidavit Rule for at least a year in criminal cases, resolved instead to
modify the public prosecutors compliance therewith from January 1 to December 31, 2013, as follows:
For the purpose of complying with the Judicial Affidavit Rule, public prosecutors in the first- and second-level courts shall
use the sworn statements that the complainant and his or her witnesses submit during the initiation of the criminal action
before the office of the public prosecutor or directly before the trial court. Upon presenting the witness, the attending public
prosecutor shall require the witness to affirm what the sworn statement contains and may only ask the witness additional
direct examination questions that have not been amply covered by the sworn statement.
The Court also clarified in its three-page unsigned resolution that the modified compliance does not apply to criminal cases
where the complainant is represented by a duly empowered private prosecutor. The private prosecutor shall be charged in the
applicable cases the duty to prepare the required judicial affidavits of the complainant and his or her witnesses and cause the
service of the copies of the same upon the accused.
The Court acknowledged that 80% of the backlog in the first-and second-level courts involve criminal cases, and that delays
in those cases are caused mainly by lack of prosecutors, absence of prosecution witnesses, and lack of PAO lawyers. It thus
expressed its expectation that public prosecutors will use the one-year modified compliance period to take the necessary steps
to seek the needed augmentation of their ranks and develop methods and systems that would enable them to fully comply
with the requirements of the Judicial Affidavit Rule when the modified compliance period ends. The Court also stated that
the Rule shall remain in full force and effect in all other cases and situations not covered by the resolution. (Unsigned Res.,
AM No 12-8-8-SC, Judicial Affidavit Rule, January 8, 2012)

CYBERCRIME PETITIONS SC BULLETIN No. 2


Posted: January 9, 2013

The SC Public Information Office is issuing this ADVISORY on the oral arguments on the Cybercrime Prevention Act of
2012 scheduled on Tuesday, January 15, 2013 at 2 p.m. at the En Banc Session Hall, 2nd Floor, SC Main Building.
Those who wish to observe the said oral arguments in the En Banc Session Hall must write to the Office of the Clerk of Court
through Atty. Enriqueta Esguerra-Vidal to secure passes. They may fax their letter-request to this number: (02)525-3208.
Admission is on a first-come-first-served basis.
Only those who have passes and the media with IDs issued by their media outfits who have registered with Security shall be
allowed inside the En BancSession Hall on a first-come-first-served basis. The viewing area will be at the lobby of the New
Building. The reserved area for the media will be the last row of seats inside the Session Hall and the first three rows at the
viewing area.
Bearer of the passes/card shall sign the same. Should the hearing continue on another day and the bearer decides to observe
the oral arguments again, he/she should get another pass/card. The pass/card is non-transferable.
The media and the public are required to register at the SC Security. Please do not forget to bring another valid ID which will
be left with the Security when you register. For security reasons, a new pass/card and registration shall be required for every
scheduled date of the oral arguments.
The SC Security will issue color-coded stickers for the members of the media who must wear their media IDs at all times.
The IDs must be worn visibly throughout the coverage.
Before entering the Session Hall, firearms and other deadly weapons, tape recorders, cameras, attach cases, and any other
gadgets shall be deposited at the SC Security counter.
Before the start of the oral arguments, the media shall proceed to their designated area at the back of the Session Hall.
Seating and placement of broadcast equipment in the designated area inside the Session hall shall be on a first-come-firstserved basis.
Media photographers and television crew will be allowed inside the Session Hall only until the banging of the gavel, which
signals the start of the oral argument proper. Thereafter, the media photographers and television crew shall remove their
respective broadcast and recording equipment and other gadgets from the courtroom as quickly and as unobtrusively as
possible, and shall be escorted out of the Session Hall.
While the Court is in session, no one shall enter or leave the session hall; silence and proper decorum shall be observed.
When the Court adjourns, all shall stand and shall remain standing in their respective places until all the Justices of the Court
shall have left the session hall.
Smoking inside the Supreme Court premises is strictly prohibited.
FOR YOUR STRICT COMPLIANCE AND GUIDANCE. (CKDSLD)

Cybercrime Law Oral Arguments Set on January 15; Justice Abad Confers with
Counsels for Orderly Oral Arguments
Posted: January 4, 2013; By Gleo Sp. Guerra

The 15 petitions challenging the constitutionality of Republic Act No. 10175, more commonly known as the Cybercrime
Prevention Act of 2012, will be coming up for oral arguments before the Supreme Court in the afternoon of Tuesday, January
15, 2013. It is the first oral arguments of the Court to be presided over by Chief Justice Maria Lourdes P. A. Sereno since her
appointment as such on August 24, 2012.
To help prepare the counsels for the parties in relation to the multiple issues raised, SC Associate Justice Roberto A. Abad
took the initiative of meeting with the said counsels this afternoon to discuss possible ground rules. One of the purposes of
the meeting was to determine which of the many issues presented by the various petitions should be heard on oral arguments
and which of the remaining issues could be argued in written Memoranda to be submitted to the Court after the oral
arguments.
The final list and sequence of issues to be argued, the counsels to argue the same, the time allotted for the said counsels to
present their arguments, and additional dates for oral arguments, if any, will be resolved by the Court en banc in its first
session of the year on January 8, 2012, and embodied in an Advisory to be issued to all the parties.
Last October 9, the Court had issued a temporary restraining order, effective for 120 days, against the
implementation/enforcement of the Cybercrime Prevention Act of 2012 after various groups from the media and civil society;
and several individuals, including some members of Congress, had petitioned the Court to strike down some or all of the
provisions of the law. The Solicitor General, as counsel for the government, has already submitted its Comment to the
various petitions arguing in favor of the constitutionality of a majority of the provisions of the law.

SC to Take Up Prosecutors' Request for Deferment of the Judicial Affidavit Rule in


Criminal Cases
Posted: January 2, 2013; By Gleo Sp. Guerra

Chief Justice Maria Lourdes P. A. Sereno, responding to a request from the Prosecutors League of the Philippines (PLP) for
the deferment of the implementation of the Judicial Affidavit Rule for at least a year in criminal cases, has directed
that the request be included in the agenda of the Supreme Courts first En Banc session of the year on January 8, 2013. In its
letter dated December 12, 2012, addressed to Chief Justice Sereno and the Associate Justices, the PLP cited as among the
reasons for its request the heavy workloads of the prosecutors affording them limited time to prepare judicial affidavits, as
well as the deficiency in the number of prosecutors in many field offices. The PLP, composed of active and retired
prosecutors, also asked for the creation of an ad hoc Committee to revisit the Rules provisions.
The Rule, which is meant to address the twin problems of case congestion and delay in the resolution of cases, requires the
compulsory use of judicial affidavits of witnesses in lieu of their direct testimonies in all first-level (except as to small claims
cases) to third-level courts; investigating officers and bodies authorized by the SC to receive evidence; and special courts and
quasi-judicial bodies whose rules of procedure are subject to the SCsdisapproval. It further requires the parties documentary
or object evidence to be attached to the judicial affidavits.
Relevant to the PLPs request, the Rule applies to all criminal actions where the maximum of the imposable penalty does not
exceed six years; where the parties agreed to the use of judicial affidavits irrespective of the penalty involved; or with respect
to the civil aspect of the actions, whatever the penalties are. In these cases, the judicial affidavits must be submitted by the
prosecution not later than five days before the pre-trial.
Prior to the Rules promulgation last September 4, Associate Justice Roberto A. Abad, Chair of the Sub-Committee on the
Revision of Rules on Civil Procedure that drafted the Rule, met with a number of prosecutors from the Department of Justice.
He, along with SC Associate Justices Diosdado M. Peralta and Lucas P. Bersamin, also met with officers of the National
League of Prosecutors last December 21 to discuss the latters concerns regarding the Rule.Associate Justice Abad
emphasized that the intent of the Judicial Affidavit Rule is to elevate the trustworthiness and the integrity of judicial
affidavits by requiring that only lawyers be allowed to draft them and that they be made accountable for their contents.

SC Establishes E-Mail Address for E-Filing and Other Requirements for Efficient
Use of Paper
Posted: December 29, 2012; By Gleo Sp. Guerra

In preparation for the eventual establishment of an e-filing paperless system in the Judiciary, the Supreme Court, through its
Management Information System Office, has set up the e-mail address efile@sc.judiciary.gov.ph.
This is pursuant to the Efficient Use of Paper Rule (AM No. 11-9-4-SC, November 13, 2012) which takes effect on
January 1, 2013 after its publication in two newspapers of general circulation. In promulgating this Rule, the Court noted the
need to cut the judicial systems use of excessive quantities of costly paper, save the forests, avoid landslides, and mitigate the
worsening effects of climate change.
E-filing, under the Rule, requires parties before the Supreme Court to submit, simultaneously with their court-bound papers,
soft copies of the same and their annexes (the latter in PDF format) either by e-mail to the Courts e-mail address or by
compact disc (CD). E-filing will, initially, be ona voluntary basis for the first six months following the effectivity of
the Rule. Thereafter, it shall be compulsory, unless six-month voluntary period is extended. For efficient use of paper,
the Rule also requires that all pleadings, motions, and similar papers intended for the consideration of all courts and quasijudicial bodies under the supervision of the Supreme Court must be written in single space with a one-and-a-half space
between paragraphs, using an easily readable font style of the partys choice, of 14-size font, and on a 13-inch by 8.5-inch
white bond paper. The same requirements apply to all decisions, resolutions, and orders issued by courts and quasi-judicial
bodies under the administrative supervision of the Supreme Court, as well as reports submitted to the courts and transcripts
of stenographic notes.
All court-bound papers to be submitted by every party shall likewise maintain a left hand margin of 1.5 inches from the edge;
an upper margin of 1.2 inches from the edge; a right hand margin of one inch from the edge; and a lower margin of one inch
from the edge. Every page must be consecutively numbered.
The Rule specifies the number of copies of court-bound papers in a particular court that a party is required or desires to file
unless otherwise directed by the court. In the Supreme Court for instance, parties are required to file one original (properly
marked) and four copies, unless the case is referred to the CourtEn Banc, in which event, the parties shall file 10 additional
copies. For the En Banc, the parties need to submit only two sets of annexes, one attached to the original and one extra copy.
For the Division, the parties need to submit also two sets of annexes, one attached to the original, as well as an extra copy. All
members of the Court shall share the extra copies of annexes in the interest of economy of paper.

SC Affirms Award of Damages to Former Filipino Ambassador to Kenya


Posted: December 7, 2012; By Bianca M. Padilla

The Supreme Court has recently affirmed the award of P700,000.00 in damages by the Court of Appeals (CA) to the former
Philippine Ambassador to Kenya Nelson Lavia (Lavia) against former Consul General to Kenya, Nestor Padalhin (Nestor)
and his wife, Annie.

Except for reducing the award of attorneys fees by P75,000.00, the CA has affirmed the decision of the Regional Trial Court
(RTC) of Pasig City, Branch 165, ordering Nestor to pay Lavia moral, nominal and exemplary damages as well as attorneys
fees and litigation expenses for a raid that occurred in Lavias home in Kenya while the latter was still the Philippine
Ambassador to Kenya. Nestor caused the taking of pictures of raw elephant tusks in Lavias home, without his consent.

In a 15-page decision penned by Justice Bienvenido L. Reyes, the Supreme Court through its First Division unanimously held
that the award of damages and attorneys fees granted inLavias favor is proper because Nestor himself admitted that he
caused the taking of the pictures of Lavias residence without the latters knowledge and consent. Nestors affidavit
constitutes an admission against his interest Thus it is fair to presume the declaration corresponds with the truth. On the
witness stand, he testified that he was the one who voluntarily and freely prepared his affidavit. He further stated that the
contents thereof are true. His affidavit likewise contained an apology for his lack of judgment and discretion, ruled the
Court.
Despite Nestors insistence that this was all done without any malice, the Court ruled that his surreptitious acts negate his
allegation of good faith. It stated that Nestors participation in the invasion of Lavias diplomatic residence and his act of
ordering an employee to take photographs of what was inside the diplomatic residence without the consent of Lavia were
clearly done to prejudice the latter. The Court cited Article 19 of the New Civil Code providing that every person must in the
exercise of his rights and the performance of his duties, act with justice, give everyone his due, and observe honesty and good
faith.
The Court also held that the Spouses Padalhins petition for review on certiorari under Rule 45 of the Rules of Civil
Procedure against Lavia was procedurally flawed because it was Spouses Padalhins son, Norman, and not the spouses
themselves who personally signed the verification and certification of non-forum shopping attached to it; also, the petition
was filed before it (the Supreme Court) when it is not a trier of facts but a trier of law. The Court reiterated the ruling in Vda.
De Formoso v. Philippine National Bank that the substantive issue of questioning an award for damages and attorneys fees is
a factual issue and beyond the jurisdiction of a petition for review on certiorari.
Lavia and Nestor were both Filipino diplomats formerly assigned to Kenya. Lavia filed a case against Nestor, among
others, for damages for violating his right to privacy, inviolability of his diplomatic residence, infringement of his right
against illegal searches and seizures, and bad faith, malice and deceit for conspiring to conduct raids on his (Lavias)
residence. (GR No. 183026, Padalhin v. Lavia, November 14, 2012)

SC Upholds Certain Provisions of Migrant Workers Act as Constitutional


Posted: December 7, 2012; By Bianca M. Padilla

The Supreme Court En Banc has recently upheld certain provisions of RA 8042 (Migrant Workers and Overseas Filipinos Act
of 1995), reversing the ruling of the Regional Trial Court (RTC) in Manila, which declared the same unconstitutional.
In a 17-page consolidated decision penned by Justice Roberto A. Abad, the Court declared Sections 6, 7, 9, and the last
sentence of the second paragraph of Section 10 of RA 8042 valid and constitutional.
Section 6 defines the crime of illegal recruitment and enumerates the acts constituting the same. Section 7 provides the
penalties for prohibited acts. Section 9 of RA 8042 allowed the filing of criminal actions arising from illegal recruitment
before the RTC of the province or city where the offense was committed or where the offended party actually resides at the
time of the commission of the offense. Finally, the last sentence of the second paragraph of Section 10 holds the corporate
directors, officers, and partners of recruitment and placement agencies jointly and solidarily liable for money claims and
damages
that
may
be
adjudged
against
the
latter
agencies.
The Court found "illegal recruitment as defined in Section 6 of RA 8042 clear and unambiguous. By its terms, persons who
engage in canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers without the appropriate
government license or authority are guilty of illegal recruitment whether or not they commit the wrongful acts enumerated in
that section. On the other hand, recruiters who engage in the canvassing, enlisting, etc. of OFWs, although with the

appropriate government license or authority, are guilty of illegal recruitment only if they commit any of the wrongful acts
enumerated in Section 6, held the Court.
In fixing uniform penalties, as provided for in Section 7, for each of the enumerated acts under Section 6, the Court ruled that
Congress was within its prerogative to determine what individual acts are equally reprehensible consistent with the State
policy of according full protection to labor and deserving of the same penalties. Reiterating People v. Ventura, it held that the
State under its police power may prescribe rules and regulations as in its judgment will secure or tend to secure the general
welfare of the people, to protect them against the consequence of ignorance and incapacity as well as of deception and fraud.
The Court also declared that there is nothing unconstitutional with Section 9 of RA 8042, which allows offended parties to file
the criminal case in their place of residence in addition to the place where the crime is committed. It held that the fixing of an
alternative venue for violations of Section 6 of RA 8042 that differs from the venues established by the Rules of Criminal
Procedure is consistent with the laws declared policy of providing a criminal justice system that protects and serves the best
interest of the victims of illegal recruitment.
As to the last sentence of the second paragraph of Section 10, the Court noted that the liability of corporate directors and
officers is not automatic. To make them jointly and solidarily liable with their company, there must be a finding that they
were remiss in directing the affairs of that company.
The Court also held moot the issue as to the constitutionality of the deregulation provisions of recruitment and migration of
overseas workers in Sections 29 and 30 of RA 8042 as these provisions had been repealed by RA 9422, which adopts the
policy of close government regulation of the recruitment and deployment of OFWs. (GR No. 152642, Hon. Sto. Tomas v.
Salac. et. al., GR No. 152710, Hon. Sto. Tomas v. Hon. Paneda et. al., GR No. 167590, Philippines v. PASEI, GR No. 18297879, Becmen Service Exporter and Promotion, Inc. v. Spouses Cuaresma, & GR No. 184298-99, Spouses Cuaresma v. White
Falcon Services, Inc., December 5, 2012)

SC Grants Judicial Clemency to Reformed Judge


Posted: December 7, 2012; By Jay B. Rempillo

A dismissed judge, now 71, who was perpetually banned from public office has been been allowed by the High Court to rejoin
the government.
The Supreme Court En Banc, through an eight page resolution by Justice Estela M. Perlas-Bernabe, granted judicial clemency
to dismissed Judge Hermin E. Arceo formerly of the San Fernando, Pampanga Regional Trial Court, Branch 43 by lifting his
disqualification from re-employment in any branch of the government, including government-owned or controlled
corporations.
Likewise, the High Court ordered its Fiscal Management and Budget Office to compute Arceos accrued leave credits, if any,
and to release the same to him.
In 1996, the SC dismissed Arceo for gross misconduct and immorality on the complaint of Atty. Jocelyn C. Talens-Dabon,
former Clerk of Court of the San Fernando, Pampanga RTC. He sought for judicial clemency in October this year.
Citing Castillo v. Calanog, Jr., the Court noted that the penalty of disqualification imposed on a judge dismissed for
immorality in that case was lifted by the SC after the dismissed judge had shown sincere repentance and taking into account
his contributions during his tenure in the Judiciary.
The Court, in granting judicial clemency to Arceo, held that he has sufficiently shown his remorse and reformation after his
dismissal from the service. It ruled that while Arceo, at 71, had already reached retirement age and can no longer be eligible
for regular employment in the public service, it cannot be doubted that he could still be of service to the government in some
other capacity considering his achievements and mental aptitude.
The Court found that after his dismissal, Arceo engaged in private practice and most of his cases involve poor litigants,
neighbors, and close friends. He submitted to the Court a Certificate of Good Moral Character issued by the Executive Judge
of the Malolos City RTC and a Certificate of Favorable Endorsement from the Integrated Bar of the Philippines Bulacan
Chapter President attesting to his reformation and recognizing his valuable contributions to the Bar and the Bench. For these
services, he was bestowed the award Gawad Bunying Abogadong Bulakenyo last year.
The Court also found that Arceo was granted probation after his conviction by the Sandiganbayan in 2004 for violation of
the Anti-Sexual Harassment Lawand Article 336 of the Revised Penal Code and finally discharged after having complied with

all the conditions thereof. Thus, all his civil rights which he had lost as a result of his conviction, including the right to be
employed in the public service, were restored, ruled the Court.
As for the accrued leave credits, the Court noted that sec. 11, paragraph 1 of Rule 140 of the Rules of Court explicitly exempts
accrued leave credits from the penalty of forfeiture of benefits. (AM No. RTJ-96-1336, Talens-Dabon v. Judge Arceo,
November 20, 2012)

SC: Failure to Explain Service By Registered Mail Not Automatically Subject to


Sanction
Posted: December 6, 2012; By Bianca M. Padilla

The Rules of Civil Procedure do not provide for automatic sanction should a party fail to submit the required explanation for
resorting to service by registered mail rather than personal service.
In a six-page decision penned by Justice Roberto A. Abad, the Court's Third Division unanimously held that both the
Regional Trial Court (RTC) of Lingayen, Pangasinan (Branch 37) and the Court of Appeals did not gravely abuse their
discretion when both courts ruled against the striking out of the motion for judgment by default filed by private respondent
Roberto and Arabela Arcinue (Arcinues) against petitioner Natividad Lim (Lim) for failure of the Arcinues to submit the
aforesaid required explanation.
The Court pointed out Rule 13, Section 11 of the 1997 Rules of Civil Procedure does not provide for automatic sanction
should a party fail to submit the required explanation. It merely provides for that possibility considering its use of the term
may. Moreover, the same does not altogether prohibit service by registered mail when such service, when adopted, ensures
as in this case receipt by the adverse party. It noted that Lims counsel in fact even admitted to receiving a copy of the
Arcinues motion 10 days before the scheduled hearing on the said motion. The Court thus directed the RTC to proceed with
the hearing and adjudication of the case.
National Power Corporation (NPC) filed an expropriation suit against petitioner Lim for its Coal-Fired Thermal Power
Project. Private respondents Arcinue spouses filed a motion for leave to admit their complaint-in-intervention, alleging that
they owned and were in possession of one of the lots subject of the expropriation. The RTC granted the Arcinues motion and
required both NPC and Lim to answer the complaint-in-intervention within 10 days from receipt of its order. Because NPC
and Lim failed to file their respective answers, the Arcinues filed a motion for judgment by default. Lim then sought to
expunge the motion for lack of the requisite explanation why the Arcinues resorted to service by registered mail rather than
personal service. Both the RTC and the CA ruled against this, prompting her to file a petition with the Court. (GR No.
178789, Lim v. NPC, November 14, 2012)

SC Issues Efficient Use of Paper Rule


Posted: November 29, 2012; By Jay B. Rempillo

Promoting a paper-less Judiciary to protect the environment, the Supreme Court En Banc has recently issued the Efficient
Use of Paper Rule, which will maximize the use of every sheet of paper in rulings to be issued by the court and in the
pleadings to be filed by parties.
In promulgating the Rule, the Court noted that there is a need to cut the judicial systems use of excessive quantities of costly
paper, save our forests, avoid landslides, and mitigate the worsening effects of climate change that the world is experiencing.
To take effect on January 1 next year after its publication two newspapers of general circulation, the Rule shall apply to all
courts and quasi-judicial bodies under the administrative supervision of the Supreme Court,
Under AM No. 11-9-4-SC (the Efficient Use of Paper Rule), the Court, under Chief Justice Maria Lourdes P. A. Sereno, has
required that all pleadings, motions, and similar papers intended for the consideration of all courts and quasi-judicial bodies
under the supervision of the Supreme Court shall be written in single space with a one-and-a-half space between paragraphs,
using an easily readable font style of the partys choice, of 14-size font, and on a 13-inch by 8.5-inch white bond paper.
All decisions, resolutions, and orders issued by courts and quasi-judicial bodies under the administrative supervision of the
High Tribunal, as well as reports submitted to the courts and transcripts of stenographic notes, shall comply with the said
requirements.
All court-bound papers to be submitted by every party shall likewise maintain a left hand margin of 1.5 inches from the edge;
an upper margin of 1.2 inches from the edge; a right hand margin of one inch from the edge; and a lower margin of one inch
from the edge. Every page must be consecutively numbered.

The Rule also specified the number of court-bound papers in a particular court that a party is required or desires to file unless
otherwise directed by the court.
In the Supreme Court for instance, parties are required to file one original (properly marked) and four copies, unless the case
is referred to the Court En Banc, in which event, the parties shall file 10 additional copies. For the En Banc, the parties need
to submit only two sets of annexes, one attached to the original and one extra copy. For the Division, the parties need to
submit also two sets of annexes, one attached to the original, as well as an extra copy. All members of the Court shall share
the extra copies of annexes in the interest of economy of paper.
In preparation for the eventual establishment of an e-filing paperless system in the Judiciary, the parties to cases before the
Supreme Court are further required to submit, simultaneously with their court-bound papers, soft or electronic copies of the
same and their annexes (the latter in PDF format) either by email to the Courts e-mail address or by compact disc. This
additional requirement will be on a voluntary basis for the first six months following the effectivity of the said Rule and
compulsorily afterwards unless the period is extended.
In the Court of Appeals and the Sandiganbayan, parties are required to submit one original (properly marked) and two copies
with their annexes; and in the Court of Tax Appeals, one original (properly marked) and two copies with annexes, and on
appeal to the En Banc, one original (properly marked) and eight copies with annexes.
Parties before the trial courts are required to submit one original (properly marked) with the stated annexes attached to it.
Also, a party required by the rules to serve a copy of his or her court-bound paper on the adverse party need not enclose
copies of those annexes that, based on the records of the court, show said party already has such. In the event a party requests
a set of the annexes actually filed with the court, the party who filed the paper shall comply with the request within five days
from receipt of such. (AM No. 11-9-4-SC, Efficient Use of Paper Rule, November 13, 2012)

Supreme Court Reinstates Dismissal of Libel Cases Due to Procedural Defect


Posted: November 9, 2012; By Bianca M. Padilla

The Supreme Court has recently ordered the reinstatement of the portion of the order of the Regional Trial Court (RTC) in
Mandaluyong, Branch 212, which dismissed the libel suits filed by singer-actress Sharon Cuneta-Pangilinan against
petitioners Lito Bautista and Jimmy Alcantara for the alleged defamatory articles against her published in the
tabloid Bandera. Bautista and Alcantara are Banderas Editor and Assistant Editor, respectively. Also charged with libel is
Pete G. Ampoloquio, the author of the articles.
The RTC Mandaluyong had ordered the libel suits dismissed insofar as petitioners are concerned after granting the Demurrer
to Evidence filed by them alleging that the prosecution had failed to prove their participation as conspirators of the crime
charged. Respondent Cuneta-Pangilinan then filed a petition for certiorari to the Court of Appeals (CA) which the latter
granted. The CA also ordered the cases against petitioners to be remanded to the trial court.

In a 19-page decision penned by Justice Diosdado M. Peralta, the Court's Third Division unanimously granted petitioners
petition for review of the CAs decision. The Court held that petitioners can no longer be held liable in view of the procedural
infirmity that the petition for certiorari [filed by Sharon Cuneta-Pangilinan] was not undertaken by the Office of the Solicitor
General (OSG), but instead by respondent in her personal capacity. Moreover, although the conclusion of the trial court may
be wrong, to reverse and set aside the Order granting the demurrer to evidence would violate petitioners constitutionally
enshrined right against double jeopardy.
The Court reiterated the ruling in People v. Santiago that [i]n criminal cases where the offended party is the State, the
interest of the private complainant or private offended party is limited to the civil liability If a criminal case is dismissed by
the trial court or if there is an acquittal, an appeal therefrom on the criminal aspect may be taken only by the State through
the Solicitor General However, the said offended party or complainant may appeal the civil aspect of the case despite the
acquittal of the accused. The Court found that in this case, the petition filed before the CA by Cuneta-Pangilinan essentially
questioned the criminal aspect of the RTCs order of dismissal.
The Court stressed that the granting of a Demurrer to Evidence is tantamount to a dismissal of the case on the merits and a
review of the order granting the demurrer to evidence will place the accused in double jeopardy. (GR No. 189754, Bautista
v. Cuneta-Pangilinan, October 24, 2012)

SC: SK Federation President of Subic, Zambales Stays


Posted: October 18, 2012; By Jay B. Rempillo

The

Sangguniang

Kabataan

(SK)

Federation

President

of

Subic,

Zambales

gets

to

keep

his

post.

This after the Supreme Courts Second Division affirmed the Court of Appeals (CA)s ruling setting aside that of the SK Board
of Election Supervisors (BES) of Subic, Zambales and the Regional Trial Court of Olongapo City which had nullified the
proclamation of Ray Mark Rigonan as SK Federation President of Subic, Zambales.

In a nine-page extended resolution, the Court denied the petition assailing the CA decision of the SK BES of Subic Zambales
and Maureen Sawey, who garnered the second highest number of votes next to Rigonan.
The CA had found that the SK BES committed grave abuse of discretion in ruling that Rigonans answer in the election
protest against him was filed late as Rigonans answer was filed on the next working day after the due date on December 5,
2010, a Sunday, in accordance with Rule 22, sec. 1 of the Rules of Court. On petition for certiorari by Rigonan to the RTC, the
RTC granted the motion to dismiss of both the Subic SK BES and Sawey.
The Court held that it was clear in its assailed order that the RTC has already made a final determination of the case before it
not only on the ground of non-exhaustion of administrative remedies but also on the very ground that Rigonans allegation of
deprivation of due process did not constitute grave abuse of discretion.

Simply

putthe Regional Trial Court had already ruled that the act of nullifying the proclamation of Rigonan as SK
Federation president without taking into consideration the answer he filed did not amount to grave abuse of discretion. The
Court of Appeals was, therefore, correct in reviewing the merits of the case and in so nullifying the assailed board resolution
without remanding the case to the Regional Trial Court for further trial, the Court held.
The Court also noted that the case does not involve an elective official under Chapter I, Title II of the Local Government Code
of 1991 nor an officer of thePederasyon ng mga Sangguniang Kabataan covered by sec. 252 of the Omnibus Election Code so
resort to judicial review is an option from the BES ruling particularly since Rigonans petition for certiorari to the RTC raises
pure questions of law and jurisdiction and also alleges deprivation of due process.
Fourteen of the 16 SK Chairpersons in Subic, Zambales filed a protest before the BES, which in turn ruled against Rigonan for
allegedly violating sec. 8, Art. II, of the Memorandum Circular No. 2002-123 on the Implementing Rules and Guidelines for
the Conduct of the SK Federation Elections. The BES also endorsed enforcement of its decision to nullify Rigonans
proclamation and to declare vacant his position to the Provincial Office of the Department of Interior and Local Government.

Rigonan filed a petition for certiorari with prayer for a preliminary injunction against the BES and Sawey before the RTC of
Olongapo City. The BES and Sawey thereafter filed a Motion to Dismiss which the RTC granted. When the RTC also denied
Rigonans subsequent motion for reconsideration, the latter appealed to CA, which in turn ruled in his favor.
In its February 20, 2011 decision, the CA reasoned that the rule that a motion for reconsideration is a condition sine qua
non for the filing of a petition for certiorari admits of certain exceptions and that the relaxation of procedural rules is proper
if only to promote the interest of justice. It also agreed with Rigonan that he had no other remedy but to file the certiorari
before the RTC considering that the decision of BES is final and executory. In its June 8, 2012 resolution, the CA denied the
respective motions for reconsideration of the BES and Sawey. (Extended Res., GR No. 202452, SK Board of Election
Supervisors of Subic Zambales v. Rigonan, October 1, 2012)

It's Final. SC's Order for SEC to Probe PLDT for Violation of Filipino Ownership
Requirement
Posted: October 15, 2012; By Jay B. Rempillo

The Supreme Court, voting 10-3, has denied with finality the motions for reconsideration of its June 28, 2011 decision that
directed the Securities and Exchange Commission (SEC) to investigate the Philippine Long Distance Telephone Co. (PLDT)
for possible violation of the constitutional limit on foreign ownership in utilities.

In a 51-page resolution penned by Senior Justice Antonio T. Carpio, the Court En Banc declared that it no further pleadings
shall be entertained in the case.
Joining Senior Justice Carpio in his ponencia were Chief Justice Maria Lourdes P. A. Sereno and Justices Teresita J.
Leonardo-De Castro, Arturo D. Brion, Diosdado M. Peralta, Lucas P. Bersamin, Mariano C. Del Castillo, Martin S. Villarama,
Jr., Jose Portugal Perez, and Jose Catral Mendoza.
Justices Presbitero J. Velasco, Jr. wrote a dissenting opinion and was joined by Justice Bienvenido L. Reyes. Justice Roberto
A. Abad wrote a separate dissenting opinion.

Justice Estela M. Perlas-Bernabe did not take part due to prior participation in a related case.
The Court clarified that it did not decide, and in fact refrained from ruling on the question of whether PLDT violated the 6040 ownership requirement in favor of Filipino citizens in Section 11, Article XII of the 1987 Constitution as such question
indisputably calls for a presentation and determination of evidence through a hearing, which is generally outside the province
of its jurisdiction, but well within the SECs statutory powers. The Court thus limited its decision on the purely legal and
threshold issue on the definition of the term capital in Section 11, Article XII of the Constitution and directed the SEC to
apply such definition in determining the exact percentage of foreign ownership in PLDT.
The Court found that from the deliberations of the Constitutional Commission, it was clear that the term capital refers to
controlling interest of a corporation. The Court held: As we held in our 28 June 2011 Decision, to construe broadly the term
capital as the total outstanding capital stock, treated as a single class regardless of the actual classification of shares, grossly
contravenes the intent and letter of the Constitution that the State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos.

The Court further held that the PLDT is only an indispensable party insofar as other issues, particularly factual questions are
concerned.

It also held that SEC was properly impleaded in this case. It noted that SEC has expressly manifested that it will abide by the
Courts decision and defer to the Courts definition of the term capital in Section II, Article XII of the Constitution. Further,
the SEC entered its special appearances in this case and argued during the Oral Arguments, indicating its submission to the
Courts jurisdiction. It Thus the Court found that there exists no legal impediment against the proper and immediate
implementation of its directive to the SEC. For its part, PLDT must be impleaded, and must necessarily be heard, in the
proceedings before the SEC where the factual issues will be thoroughly threshed out and resolved, added the Court.

Thus, there

is no dispute that it is only after the SEC has determined PLDTs violation, if any exists at the time of the
commencement of the administrative case or investigation, that the SEC may impose the statutory sanctions against PLDT.
In other words, once the 28 June 2011 Decision becomes final, the SEC shall impose the appropriate sanctions only if it finds
after due hearing that, at the start of the administrative case or investigation, there is an existing violation of Section 11,
Article XII of the Constitution. Under prevailing jurisprudence, public utilities that fail to comply with the nationality
requirement under Section 11. Article XII and RA 7042, the Foreign Investments Act of 1991 (FIA) can cure their deficiencies
prior to the start of the administrative case or investigation, the Court ruled.

The Court noted that the 1935, 1973, and 1987 Constitutions have the same 60 percent Filipino ownership and control
requirement for public utilities like PLDT. It ruled that any deviation from this requirement necessitates an amendment to
the Constitution as exemplified by the Parity Amendment.
The Court held that 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. In other
words, under Section 11, Article XII of the 1987 Constitution, to own and operate a public utility a corporations capital must
at least be 60 percent owned by Philippine nationals, held the Court.
RA 7042, like all its predecessor statutes, clearly defines a Philippine national as a Philippine citizen, or a domestic
corporation at least 60% of the capital stock outstanding and entitled to vote is owned by Philippine citizens, noted the
Court.

The Court explained that the right to elect directors, coupled with beneficial ownership, translates to effective control. The
Court stressed that its assailed 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. It further held that it was 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 restriction as stated in the articles of incorporation.
The Court further explained that 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 nonvoting shares must 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.

In its June 28, 2011 decision, the Court ruled that the term capital in Section 11, Article XII of the Constitution refers only to
shares of stock entitled to vote in the election of directors, and, in the present case, only to common shares and not to the
total outstanding capital stock comprising both common and non-voting preferred shares.

The SEC was thus directed to apply the Courts definition of the term capital in determining the extent of allowable foreign
ownership in PLDT and to impose the appropriate sanctions under the law if there is any violation of sec. 11, Art. XII of the
Constitution.
Justice Velasco in his dissenting opinion opined that PLDT should be given time to undertake the necessary measures to
make its capital structure compliant, and the SEC should formulate appropriate guidelines and supervise the process. He
added that SEC should also adopt rules and regulations to implement the prospective compliance by all affected companies
with the new ruling on the interpretation of Sec. 11, Art. XII of the Constitution.
For his part, Justice Abad opined that Sec. 11, Art. XII already provides limitations on foreign participation in public utilities,
hence, the Court need not add more by further restricting the meaning of the term capital when none was intended by the
framers of the 1987 Constitution. He wrote that the authority to define capital in the said provision belongs to Congress as
part of its policy making power. Granting otherwise, he opined that capital encompasses the entirety of a corporations
outstanding capital stock and that the Court can simply adopt such interpretation of Constitution Commission by Fr. Joaquin
Bernas and Dr. Bernardo M. Villegas. (GR No. 176579, Gamboa v. Sec. Teves, October 9, 2012)

SC Denies With Finality Anakpawis Member's Petition for Writs of Amparo, Habeas
Data
Posted: October 15, 2012; By Jay B. Rempillo

The Supreme Court has denied with finality the motion for reconsideration filed by a member of the party-list Anakpawis of
its denial of his petition for review of the Court of Appeal (CA)s decision denying his prayer for the issuance of the writs
of amparo and habeas data and the dropping of former President Gloria Macapagal-Arroyo as a respondent in the case.
In a 19-page petition penned by Justice Bienvenido L. Reyes, the Court En Banc ruled that no substantial evidence exists to
prove the claim of petitioner Francis Saez that there was threat to his life, liberty, and security from the military. Saez alleged
that he was under surveillance as his name was included in the order of battle and other government records connecting him
to the Communist Party of the Philippines (CPP).
The Court took a second look on the evidence on record and finds no reason to reconsider the denial of the issuance of the
writs prayed for, ruled the Court. It held that the CA did not commit a reversible error in declaring that no substantial
evidence exist to compel the grant of the reliefs prayed for by Saez. It found that the restraints and threats allegedly made
against him lack corroboration, are not supported by independent and credible evidence, and thus stand on nebulous
ground. Moreover, the evidence showed that Saezs mobility was never curtailed that he had a mobile phone and thus can
readily seek assistance. Given that the totality of the evidence presented by the petitioner failed to support his claims, the
reliefs prayed for, therefore, cannot be granted. The liberality accorded to amparo and habeas data cases does not mean that a

claimant is dispensed with the onus of proving his case. Indeed, even the liberal standard of substantial evidence demands
some adequate evidence, the Court declared.
While the Court also ruled that while the President cannot be automatically dropped in a petition for the privilege of the writs
of amparo and habeas datamerely on the basis of presidential immunity from suit, Saez has failed to establish accountability
of the President as commander-in-chief under the doctrine of command responsibility.
In March 2008, Saez filed the petition the petition before the SC, which issued a writ of amparo commanding respondents to
make a verified return and referred the case to the CA for hearing and decision. On July 9, 2008, the CA denied on formal
and substantial grounds the reliefs prayed for in the petition and dropped President Macapagal-Arroyo as respondent.
On August 31, 2010, the Court denied the petition for review. It ruled that the CA correctly found that Saezs petiion was
bereft of any allegation as to what particular acts or omission of respondents violated or threatened his right to life, liberty
and security. The Court further ruled that Saezs claim that he was incommunicado lacks credibility as he was given a cellular
phone and allowed to go back to Oriental Mindoro. The CA also correctly held that he failed to present substantial evidence
that his right to life, liberty and security were violated, or how his right to privacy was threatened by respondents. (GR No.
183533, In the Matter of the Petition for the Writ of Amparo and the Writ of Habeas Data in Favor of Francis Saez v.
Macapagal-Arroyo, September 25, 2012)

It's Final: Gov't Owns SMC Shares Bought From Coco Levy Funds
Posted: September 28, 2012; By Jay B. Rempillo

Its final. The Government owns the San Miguel Corporation (SMC) shares bought from the coconut levy funds.
The Supreme Court En Banc has denied with finality for lack of merit the motion for reconsideration of the Philippine
Coconut Producers Federation, Inc. (COCOFED), et al. of its January 24, 2012 decision which affirmed the Sandiganbayan
ruling that re-conveyed to the government shares in San Miguel Corporation (SMC) in the aggregate amount of P1.656 billion
bought using coconut levy funds and registered in the names of the Coconut Industry Investment Fund (CIIF) and its holding
companies.
The Court declared that no further pleadings shall be entertained and ordered that an entry of judgment on the case be made.

In a nine-page signed resolution penned by Justice Presbitero J. Velasco, Jr., the Court ruled that the said motion for
reconsideration was but a mere reiteration or rehash of the arguments that had already been previously pleaded, discussed,
and resolved by the Court in its January 24, 2012 Decision. [C]onsidering that the motions arguments are unsubstantial to
warrant a reconsideration or at least a modification, this Court finds no reason to modify or let alone reverse the challenged
Decision, held the Court.
The Court also clarified that the 753,848,312 SMC Series 1 preferred shares of the CIIF companies converted from the CIIF
block of SMC common shares subject of its September 17, 2009 Resolution in GR Nos. 177857-78, GR No. 1781933, and GR
No. 180705, shall now be the subject matter of the aforesaid January 24, 2012 decision and shall be declared owned by the
Government and be used only for the benefit of all coconut farmers and for the development of the coconut industry.
In its January 24, 2012 decision, the Court also had held that since the CIIF companies and the CIIF block of SMC shares
were acquired using coconut levy funds funds, which have been established to be public in character it goes without
saying that the concerned acquired corporations and assets ought to be regarded and treated as government assets. Thus,
being government properties, they are accordingly owned by the Government, for the coconut industry pursuant to currently
existing laws, the Court ruled.
The six CIIF Oil Mills were acquired by United Coconut Planters Bank (UCPB) using coconut levy funds. On the other hand,
the 14 CIIF holding companies are wholly owned subsidiaries of the CIIF Oil Mills. These 14 CIIF holding companies used
borrowed funds from the UCPB to acquire the SMC shares in the aggregate amount of P1.656 billion. (GR Nos. 17785758, COCOFED v. Taada; GR No. 178193, Ursua v. Republic, September 4, 2012)

SC Reinstates Dep. Omb. For Military Gonzales III


Posted: September 26, 2012; By Jay B. Rempillo

The Supreme Court En Banc has unanimously ordered the reinstatement with backwages of Deputy Ombudsman for the
Military and Other Law Enforcement Office Emilio A. Gonzales III who was dismissed by the Office of the President (OP) for

gross neglect of duty and grave misconduct relative to the case of the dismissed policeman who perpetrated the 2010 Manila
hostage-drama which had left eight Hong Kong tourists dead.
Seven justices also voted to uphold the constitutionality of sec. 8(2) of RA 6770, the Ombudsman Act of 1989, which grants
the President the power to remove a Deputy or the Special Prosecutor for any grounds provided for the removal of the
Ombudsman, and after due process, under which the OP instituted separate proceedings against Gonzales and Special
Prosecutor Wendell Barreras-Sulit. The latter was charged in connection with her handling of the plunder and anti-money
laundering cases against former Major General Carlos F. Garcia. Barreras-Sulit and her staff had sought and was granted by
the Sandiganbayan approval of a Plea Bargaining Agreement (PLEBARA) entered into with Major General Garcia. Both
Gonzales and Barreras-Suilt assailed the foregoing provision.
Joining the ponente Justice Estela M. Perlas-Bernabe in upholding sec. 8(2) of RA 6770 were Chief Justice Maria Lourdes P.
A. Sereno, Senior Justice Antonio T. Carpio, and Justices Diosdado M. Peralta, Mariano C. Del Castillo, Martin S. Villarama,
Jr., and Bienvenido L. Reyes. Senior Justice Carpio wrote a concurring opinion wherein he opined that the Ombudsman is
not constitutionally empowered to act alone. Congress can even authorize the Department of Justice or the Office of the
President to investigate cases within the jurisdiction of the Ombudsman. Similarly, the Ombudsman can investigate pubic
officers and employees who are under the disciplinary authority of heads of other bodies and agenciesDuplication of
functions may not at all times promote efficiency, but it is not proscribed by the Constitution.
In its 50-page consolidated decision, the Court also ruled that the OPs pronouncement of administrative accountability
against petitioner Gonzales and the imposition upon him of the corresponding penalty of dismissal must be reversed and set
aside, as the findings of neglect of duty or misconduct in office do not amount to a betrayal of public trust. Thus, the
President, while he may be vested with authority, cannot order the removal of petitioner as Deputy Ombudsman, there being
no intentional wrongdoing of the grave and serious kind amounting to a betrayal of public trust. There being no existing
ground for removal against Gonzales, the Court ruled that he is entitled to reinstatement to his former position as Deputy
Ombudsman with backwages corresponding to the period of suspension effective immediately.

Nonetheless, in view of the OPs factual findings of negligence and misconduct against Gonzales, the Court deemed it
appropriate to refer the case to the Office of the Ombudsman for further investigation of the charges against Gonzales.

The Court also affirmed the continuation of OP-DC Case No. 11-B-003 against Special Prosecutor Barreras-Sulit for her
alleged acts and omissions tantamount to culpable violation of the Constitution and betrayal of public trust, in accordance
with sec. 8(2) of the Ombudsman Act of 1989. The Court ruled that the approval or disapproval of the PLEBARA by the
Sandiganbayan is of no consequence to an administrative finding of liability against Barreras-Sulit. It held that while the
courts determination of the propriety of a plea bargain is on the basis of the existing prosecution evidence on record, the
disciplinary authoritys determination of the prosecutors administrative liability is based on whether the plea bargain is
consistent with the conscientious consideration of the governments best interest and the diligent and efficient performance
by the prosecution of its public duty to prosecute crimes against the State. Consequently, the disciplining authoritys finding
of ineptitude, neglect, or willfulness on the part of the prosecution, more particularly Barreras-Sulit, in failing to pursue or
build a strong case for the government or, in this case, entering into an agreement which the government finds grossly
disadvantageous, could result in administrative liability, notwithstanding court approval of the plea bargaining agreement
entered into, held the Court.

Seven Justices Justices Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro, Arturo D. Brion, Lucas P. Bersamin,
Roberto A. Abad, Jose Portugal Perez, and Jose Catral Mendoza for their part voted to declared unconstitutional sec. 8(2)
of RA 6770. In his concurring and dissenting opinion, Justice Brion declared that he disagreed with the majority in
concluding that sec. 8(2) of RA 6770 is constitutionally valid. He wrote that he differed from the majority only in allowing
the President, an elective official, whose position is primarily political, to discipline or remove members of independent
constitutional bodies such as the Office of the Ombudsman. He stressed that The absence of a constitutional provision
providing for the removal of the Commissioners and Deputy Ombudsmen does not mean that Congress can empower the
President to discipline or remove them in violation of the independence that the Constitution textually and expressly
provides. In his dissenting opinion, Justice Abad said that in upholding assailed sec. 8(2), the Deputy Ombudsman and
Special Prosecutor would be consulting the OP or the Secretary of Justice before they act in any case in which the latter has
interest, which is the ludicrous and unpalatable situation that the framers of the Constitution envisaged and sought to avoid
when they granted the Office of the Ombudsman independence from others who wield governmental powers.
Because of the lack of a majority vote to invalidate the law, the Court denied the challenge to the constitutionality of sec. 8(2)
of RA 6770 in accordance with sec. 2(d), Rule 12 of the Internal Rules of Court.
On August 23, 2010, Senior Inspector Rolando Mendoza held hostage a busload of tourists from Hong Kong in protest over
his dismissal and the delay in the resolution of his motion for reconsideration. Mendoza was killed by responding policemen
during the 2010 hostage-drama.

The hostage-drama spawned the creation of the Incident Investigation and Review Committee, chaired by Justice Secretary
Leila de Lima and vice-chaired by then Interior and Local Government Secretary Jesus Robredo, which had identified
Gonzales as among those accountable for the crisis. Charges were filed against Gonzales and on March 31, 2011, the OP
dismissed him for gross neglect of duty and grave misconduct constituting betrayal of public trust. (GR No.
196231, Gonzales III v. OP; GR No. 196232, Sulit v. Ochoa, September 4, 2012)

SC Reinstates Republic's Petition for Certiorari in MCTEP Expropriation Case


Posted: September 21, 2012; By Gleo Sp. Guerra

The Supreme Court has recently ordered the Court of Appeals (CA) to reinstate and to proceed with dispatch as to the
Republic of the Philippines petition for certiorari which the CA had earlier dismissed for late filing. In the said petition, the
Republic assailed the trial courts denial of its urgent motion for a writ of possession and order for it to immediately pay
private respondent St. Vincent de Paul Colleges, Inc. 100% of the value of the property the Republic had sought to expropriate
for the construction of the Manila-Cavite Toll Expressway Project (MCTEP).
In dismissing the Republics petition for certiorari for being filed out of time, the CA had relied on the SC's Laguna Metts
Corporation ruling that the 60-day period to file a petition for certiorari is non-extendible.
In a 12-page decision penned by Justice Bienvenido L. Reyes, the Courts Second Division, however, reiterated that while
under Rule 65, sec. 4 and as applied in Laguna Metts Corporation, the general rule is that a petition for certiorari must be
filed within 60 days from notice of the judgment, order, or resolution sought to be assailed, under exceptional circumstances
and subject to the sound discretion of the Court, said period may be extended pursuant to the Domdom, Labao, and MidIslands Power General Corporation rulings.
In this case, the Court held that the CA should have admitted the Republics petition since first, due to its (the CAs) own
lapse, thinking that what the Republic had filed was a petition for review, it granted the extension sought by the Republic;
second, because of the public interest involved, i.e., expropriation of private property for public use (MCTEP); and finally, no
undue prejudice or delay will be caused to the parties in admitting the petition. (GR No.192908, Republic v. St. Vincent de
Paul Colleges, Inc., August 22, 2012)

SC Clears Two Judges; Clarifies Rule on Raffle


Posted: September 21, 2012; By Bianca M. Padilla

[R]affle Committees of all multi-sala stations are reminded to strictly adhere to the procedure for assigning cases among the
Branches in the stations, subject only to the exceptions recognized in Circular No. 7.

Thus stressed the Supreme Court as it recently granted the separate motions for reconsideration filed by Executive Judge
Maria Cancino-Erum and Judge Carlos Valenzuela to set aside the Courts June 3, 2009 resolution adopting the
recommendation of the Office of the Court Administrator (OCA) finding both judges guilty of violating OCA Circular No. 20,
which provides for the rules regulating the raffle of cases, and a fining them P5,000.00 each.
The Court likewise dismissed the administrative charges filed against Judge Cancino-Erum and Judge Valenzuela by the
Government Service Insurance System (GSIS) for assigning without the benefit of a raffle as required in Section 2, Rule 20 of
the Rules of Court Civil Case No. MC08-3660 (where GSIS was a defendant). In the said case, the Plaintiff Belinda Martizano
had applied for the issuance of a Temporary Restraining Order (TRO) against GSIS, among others.
Judge Cancino-Erum as Executive Judge of the Regional Trial Court (RTC) in Mandaluyong City had assigned Civil Case No.
MC08-3660 to Branch 213, which is presided over by Judge Valenzuela.

In the 15-page resolution penned by Justice Lucas P. Bersamin, the Courts First Division unanimously held that respondents
could not be held to have violated the rule on raffling being the exclusive method for the assignment of cases, because item
IV of Supreme Court Circular No. 7, issued on September 23, 1974, provides as an exception when any incidental or
interlocutory matter of such urgent nature that might not wait for the regular raffle.

The Court ruled that the urgent nature of a TRO and injunction case demands prompt and immediate attention thereby
compelling the filing of the case in the proper court without delay. As such, the existing practice adopted by consensus
among the RTC Judges in Mandaluyong whereby a branch to which a TRO was already raffled would be excluded from the

next raffle for the purpose of equalizing the distribution of TRO/injunction cases among several branches of the RTC is an
allowable practice. The Court, however, stressed that raffle should always be the rule rather than the exception.

The Court also declared that administrative charges for gross ignorance of the law, grave misconduct and knowingly
rendering unjust judgments must be dismissed because GSIS did not resort to any of adequate remedies available to it. An
administrative complaint against a judge is inappropriate as a remedy for the correction of an act or omission complained of
where the remedy of appeal or certiorari is a recourse available to an aggrieved party, ruled the Court.
The Court also directed the Court Administrator to disseminate this resolution to all trial courts for their guidance and strict
compliance. (AM No. RTJ-09-2182, GSIS v. Judge Cancino-Erum, et al., September 5, 2012)

It's Final: Law Creating Dinagat Province Constitutional


Posted: September 20, 2012; Annie Rose A. Laborte

The Supreme Court resolution, dated April 12, 2011, declaring as valid and constitutional RA 9355, the law creating the
Province of Dinagat Islands, the proclamation of the said Province, and the election of the officials thereof stands. In the same
resolution, the Court had also declared valid the provision in Article 9 (2) of the Rules and Regulations Implementing the
Local Government Code (LGC) of 1991, which provides, The land area requirement shall not apply where the proposed
province is composed of one (1) or more islands.
This, as the Court, in a two-page resolution denied with finality the Motion for Reconsideration filed by petitioners former
Surigao del Sur political leaders Rodolfo Navarro, Victor Bernal, and Rene Medina as no substantial arguments were
presented to warrant the reversal of the questioned (April 12, 2011) resolution.

The petitioners sought the Court to revert to its February 10, 2010 decision, which had declared as unconstitutional RA 9355.
The same decision also had declared the proclamation of the Province of Dinagat and the election of its officials as null and
void, as well as nullified the aforesaid Article 9(2) for going beyond the ambit of Article 461 of the LGC as such exemption is
not expressly provided in the law.

In the April 12, 2011 resolution, the Court, voting 9-5, had also granted intervenors Rep. Francisco S. Matugas, Hon. Sol T.
Matugas, Hon. Arturo Carlos A. Egay Jr., Hon. Simeon Vicente G. Castrence, Hon. Mamerto D. Galanida, Hon. Margarito M.
Longos, and Hon. Cesar M. Bagundols motion for reconsideration of the resolution dated May 12, 2010 denying their motion
for reconsideration of the February 10, 2010 decision. Intervenors are the elective officials for the First Legislative District of
Surigao del Norte.
In the April 12, 2011 resolution, penned by then Justice Antonio Eduardo B. Nachura, the Court had also granted the urgent
motion to recall entry of judgment of said movant-intervenors. Concurring were then Chief Justice Renato C. Corona, and
Justices Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro, Lucas P. Bersamin, Mariano C. Del Castillo, Roberto A.
Abad, Jose Portugal Perez, and Jose Catral Mendoza. On the other hand, Senior Justice Antonio T. Carpio, and Justices
Conchita Carpio Morales, Arturo D. Brion, Diosdado M. Peralta, Martin S. Villarama, Jr., and now Chief Justice Maria
Lourdes P. A. Sereno dissented.

Indeed, they (movant-intervenors) have sufficiently shown that they have a personal and substantial interest in the case,

such that if the May 12, 2010 Resolution be not reconsidered, their reelection to their respective positions during the May 10,
2010 polls and its concomitant effects would all be nullified and be put to naught. Given their unique circumstances,
movants-intervenors should not be left without any remedy before this Court simply because their interest in this case
became manifest only after the case had already been decided, the Court had held in the April 12, 2011 resolution.
The Court had declared that it had, on several occasions, sanctioned the recall of judgment in light of attendant
extraordinary circumstances and that granting the recall of the entry of judgment in the case would allow it (the Court) to
arrive at the correct interpretation of the provisions of the LGC with respect to the creation of local government units.

The Court had held in the April 12, 2011 resolution that considering the physical configuration of the Philippine archipelago,
there is a greater likelihood that islands or group of islands would form part of the land area of a newly-created province than
in most cities or municipalities. It is therefore logical to infer that the genuine legislative policy decision was expressed in
Section 442 (for municipalities) and Section 450 (for component cities) of the LGC, but was inadvertently omitted in Section
461 (for provinces). The Court had added that when the exemption was expressly provided in Article 9(2) of the LGC-IRR,
the inclusion was intended to correct the congressional oversight in Section 461 of the LGC and to reflect the true legislative
intent. It would, then, be in order for the Court to uphold the validity of Article (2) of the LGC-IRR.
The Court had also held that Dinagats land area is not conclusive in showing that it cannot become a province, taking into
account its average annual income, which is four times more than the minimum requirement for the creation of a province. It
had held that Dinagat is ready and capable of becoming a province and that it (the Court) should not be instrumental in
stunting such capacity.
On October 2, 2006, then President Arroyo signed into law RA 9355. The Comelec thus conducted a plebiscite for the
ratification of the province under the LGC. The Dinagatnons elected their new set of elective officials during the May 2007
synchronized polls.
In November 2006, the petitioners filed before the Court a petition for certiorari and prohibition, questioning the
constitutionality of RA 9355. They alleged that the law failed to comply with Section 19, Article X of the Constitution, stating
that the creation of provinces should be in accordance with the criteria established in the local government code They also
claimed that the law failed to comply with Section 461 of the LGC.
In his dissent to present resolution, Senior Justice Antonio T. Carpio wrote, Congress relaxed the rule on the minimum land
area requirement for island cities and municipalities because these small units only host barangays which, under the Local
Government Code, are not subject to any minimum land area requirement. In sharp contrast, Congress intentionally fixed the
minimum land area requirement for provinces because provinces host cities and municipalities, which have minimum land
area requirements.
Moreover, Dinagat only meets only the income requirement set by the LGC, Senior Justice Carpio added, noting that the LGC
mandates that a province must meet two of the three minimum requirements on (1) population, (2) land and (3) income.
Senior Justice Carpio further opined that RA 9355 applies only to Dinagat Island, not to all local government units aspiring
to be a province, and therefore could not have amended the requirements for the creation of provinces under the Local
Government Code.
(Min. Res., GR No. 180050, Navarro v. Executive Secretary Ermita, September 11, 2012)

SC Annuls P16-Million Garnishment Against UP


Posted: September 17, 2012; By Gleo Sp. Guerra

Trial judges should not immediately issue writs of execution or garnishment against the Government or any of its
subdivisions, agencies, and instrumentalities to enforce money judgments. They should bear in mind that the primary
jurisdiction to examine, audit, and settle all claims of any sort from the Government or any of its subdivisions, agencies, and
instrumentalities pertains to the Commission on Audit (COA) pursuant to Presidential Decree No. 1445 (Government
Auditing Code of the Philippines).
Thus reminded the Supreme Court in a 35-page decision penned by Justice Lucas P. Bersamin reversing and setting aside the
decision of the Court of Appeals which had dismissed the petition for certiorari of petitioner, the University of the Philippines
(UP), assailing the order of the Regional Trial Court of Quezon City, Branch 80, directing the garnishment of the UPs funds
to satisfy the judgment holding it liable to respondents Stern Builders Corporation (Stern Builders) and the latters President
and General Manager Servillano De la Cruz in the total amount of P16,370,191.74 relative to the parties agreement for the
construction and renovation of the College of Arts and Sciences Building of UP Los Baos. Specifically, the UP was held liable
to Stern Builders for P503,462.74 representing the third billing, additional accomplished work, and retention money,
P5,716,729 in actual damages, P10,000,000 in moral damages, P150,000 and P1,500 per appearance in attorneys fees and
costs of suit. The RTC held the decision to have attained finality and subject to execution as UPs notice of appeal was filed
out of time. The Court thus ordered Stern Builders, et al. to redeposit the P16,370,191.74 within 10 days from receipt of the
decision.
The Court stressed that the UP is a government instrumentality performing the States constitutional mandate of promoting
quality and accessible education and that all the funds going into its possession, including interest from its bank deposits

constitute a special trust fund, the disbursement of which should always be aligned with the UPs mission and purpose, and
should always be subject to auditing by the COA. Hence the funds subject of this action could not be validly made the subject
of the RTCs writ of execution or garnishment. The adverse judgment rendered against the UP in a suit to which it had
impliedly consented was not immediately enforceable by execution against the UP because suability of the State did not
necessarily means its liability, ruled the Court.
The Court also ruled that the COA must first adjudicate private respondents claim before execution should proceed as
expressly provided in PD 1445, sec. 26. It held that Stern Builders, et al. should first seek the approval of the COA of their
monetary claim. As to the RTC, the Court declared that it acted beyond its jurisdiction by authorizing the withdrawal of the
garnished funds of the UP such that all its orders and issuances thereon were void and of no legal effect.
The Court also found the declaration of finality of judgment of the RTC to be without merit. It found that the period to appeal
did not run from service of the RTCs denial of the UPs motion for reconsideration because the same was served not on the
UPs counsel of record. Moreover, the Court ruled that equity calls for the retroactive application in the UPs favor of the
fresh-period rule in the September 15, 2005 decision in Neypes v. Court of Appeals allowing a fresh period of 15 days within
which to file a notice of appeal in the RTC counted from receipt of the order dismissing a motion for new trial or motion for
reconsideration. It noted that the decision in question was issued on November 28, 2001, while that in Neypes was rendered
in 1998.
Finally, the Court deleted the awards of actual damages, moral damages, and attorneys fees as factually unwarranted and
devoid of legal bases. It held that the remaining award of P503,462.74 shall stand subject to the action of the COA. (GR No.
171182, UP v. Dizon, August 23, 2012)

SC Upholds 5-Star Hotel's Civil Liability to Heirs of Murdered Guest


Posted: September 17, 2012; By Anna Katrina M. Martinez

The hotel owner is liable for civil damages to the surviving heirs of its hotel guest whom strangers murder inside his hotel
room.

Thus said the Supreme Court as it ruled that the negligence of the owner and operator of the 5-star Shangri-La Hotel in
Makati City was the proximate cause which set the chain of events that led to the eventual demise of one of its guests in
November 1999.
In a 29-page decision penned by Justice Lucas P. Bersamin, the Supreme Courts First Division found no reversible error on
the part of the Court of Appeals (CA) when it affirmed with modification the October 25, 2005 judgment rendered by the
Quezon City Regional Trial Court (RTC) holding Makati Shangri-La Hotel and Resort, Inc. (Shangri-La) liable for damages
for the murder of Christian Fredrik Harper, a Norwegian national who was a guest of the hotel. Specifically, the CA had
ordered Shangri-La to pay Harpers heirs P52,078,702.50 as actual and compensatory damages, P25,000 as temperate
damages, P250,000 as attorneys fees, and to pay the costs of the suit.

The hotel business is imbued with public interest, said the Court. Catering to the public, hotelkeepers are bound to provide

not only lodging for their guests but also security to the persons and belongings of their guests. Applying by analogy Article
2000, Article 2001, and Article 2002 of the Civil Code (all of which concerned the hotelkeepers degree of care and
responsibility as to the personal effects of their guests), we hold that there is much greater reason to apply the same if not
greater care and responsibility when the lives and personal safety of their guests are involved. Otherwise, the hotelkeepers
would simply stand idly by as strangers have unrestricted access to all the hotel rooms on the pretense of being visitors of the
guests, without being held liable should anything untoward befall the unwary guest.
The High Court agreed with the CA that Shangri-La failed to provide basic and adequate security measures expected of a fivestar hotel, and that its omission was the proximate cause of Harpers death. It adopted the conclusion of the trial court and
the appellate court that the negligence on the part of Shangri-La was grounded mainly on the latters inadequate hotel
security, more particularly on the failure to deploy sufficient security personnel or roving guards at the time the ghastly
incident happened.

The Court gave weight to the testimony of the hotels Security Manager, Col. Rodrigo de Guzman, who revealed that the
practice of the hotel management prior to Harpers murder had been to deploy just one security or roving guard for every
three or four floors of the building; that such ration had not been enough given the L-shaped configuration of the hotel that
rendered the hallways not visible from one end or the other; and that he had recommended to the hotel management to post

a guard for each floor, but such recommendation had been disapproved by Shangri-La because it claimed it was not doing
well at that particular time.

The Court held that it could be inferred from de Guzmans declarations that Shangri-La was negligent in providing adequate
security due its guests.

The High Court lamented that while the hotel repeatedly claimed that it is a five-star hotel, the records did not show that at
the time of Harpers death, it was exercising reasonable care to protect its guests from harm and danger by providing
sufficient security commensurate to it being one of the finest hotels in the country.
The Court agreed with the trial court that liability on the part of the hotel was based upon the fact that it was in a better
position that the injured person to foresee and prevent the happening of the injurious occurrence.
The Court further held that Harpers heirs were able to competently establish their relationship and filiation to him by their
documentary evidence. It applied the principle of substantial compliance which recognizes that exigencies and situations do
occasionally demand some flexibility in the rigid application of the rules of procedure and the laws. It found that equitable
considerations exist in this case, foremost of which is that respondents had gone to great lengths to submit the documents.
Harper came to Manila on a business trip in the first week of November 1999. He checked in at the Shangri-La Hotel and was
due to check out on November 6, 1999. In the early morning of that date, however, he was murdered inside his hotel room by
still unidentified malefactors.

Harpers heirs commenced a suit in the RTC to recover various damages from Makati Shangri-La. The RTC ruled in favor of
the heirs and found Makati Shangri-La remiss in its duties and thus liable for Harpers death.On appeal, the CA affirmed the
judgment of the RTC, with the modification.

SC Dismisses Disbarment Case Against Lazaro Law Office Lawyers


Posted: September 11, 2012; By Bianca M. Padilla

The Supreme Court has recently dismissed the complaint for disbarment filed by Jasper Juno F. Rodica (Rodica) against,
among others, Atty. Manuel M. Lazaro, Atty. Edwin M. Espejo, Atty. Abel M. Almario, Atty. Michelle B. Lazaro, and Atty.
Joseph C. Tan for gross and serious misconduct, deceit, malpractice, grossly immoral conduct, and violation of the Code of
Professional Responsibility.
Atty. Manuel Lazaro, Atty. Espejo, Atty. Almario, and Atty. Michelle Lazaro are all lawyers of the M.M. Lazaro and Associates
Law Office and counsel of William Strong (Strong), Rodicas live-in partner. Respondents expedited Strongs release from
detention in the Bureau of Immigration as well as his departure from the Philippines.
Rodica filed the disbarment compliant against the aforesaid Lazaro Law Office lawyers, alleging she was deceived by them
into withdrawing her RTC case for the recovery of her Boracay property as a condition sine qua non for Strongs departure
from the country. In her complaint, she alleged that Atty. Tan, the lawyer of defendant Hillview Marketing Corporation in the
RTC case, initiated the immigration case of Strong which led to his detention. Allegedly conspiring with Atty. Manuel, he
informed her that unless she withdrew the RTC case against his client as part of their settlement package, he would do
something bad against her and her family.
In the 18-page resolution penned by Justice Mariano C. Del Castillo, the Courts First Division unanimously held that Rodica
had failed to overcome the presumption of innocence based on the totality of evidence presented by her. In suspension and
disbarment proceedings, lawyers enjoy the presumption of innocence, and the burden of proof rests upon the complainant to
clearly prove her allegations by preponderant evidence. In the absence of preponderant evidence, the presumption of
innocence of a lawyer continues and the complaint against him must be dismissed, it declared.
The Court also added that given the chronology of events, there can be no relation between the deportation case of William
Strong (Strong) and the withdrawal of the RTC case of Rodica. Undisputed records show that the RTC case was dismissed on
March 29, 2011 and Rodica filed for a motion for reconsideration on April 18, 2011. On May 5, 2011, Strong was arrested and
detained. After the Bureau of Immigration granted Strongs Motion to Voluntarily Leave the Country on May 25, 2011, he left

the country on May 31, 2011. It was only on June 6, 2011 that Rodica filed her Manifestation to Withdraw Motion for
Reconsideration. Thus, the Court noted that the RTC case was filed long before Strong was arrested and detained. The RTC
case had already been dismissed long before Strong engaged the legal services of Lazaro Law Office. It further noted that
Rodica was not a client of the Lazaro Law Office nor was Strong a party to the RTC case. Despite Atty. Espejos participation
in writing the Manifestation to Withdraw Motion for Reconsideration and putting Lazaro Law Office in the pleading, the
Court held there is no evidence to show that Rodica retained the Lazaro Law Office to handle her case as Atty. Ibutnande was
shown to be her counsel of record. In fact, she admitted in her sworn affidavit that the lawyers from Lazaro Law Office were
engaged by Strong to handle his case with the Philippine immigration authorities. This Court is more inclined to believe
that the Lazaro Law Office agreed to handle only the deportation case of Strong and such acceptance cannot be construed as
to include the RTC case. In fact, all the billings of Lazaro Law Office pertained to the immigration case and not to the RTC
case, ruled the Court.
Based on preponderance of evidence submitted, the Court held that it is clear that Rodicas purpose in withdrawing the RTC
case was to facilitate the sale of the Boracay property to Philip Apostol, who was not interested in buying the property unless
it was cleared of all pending cases in order to protect himself as the buyer. In fact, it found that Rodica eventually executed a
Deed of Absolute Sale in favor of Apostol over the Boracay property.
Atty. Espejo, however, was warned to be more circumspect and prudent in his actuations after it was proven that upon
Rodicas request, he drafted and affixed his signature to Rodicas Manifestation and Motion to Withdraw Motion for
Reconsideration of the dismissal of the RTC case despite Rodica having retained Atty. Joan I. Tabanar-Ibutnande as counsel
for her in the said case. The Court took into consideration that Atty. Espejo is newly admitted to the Bar and that he filed a
Motion to Withdraw Appearance even before the filing of the disbarment complaint. In the said Motion, he apologized and
expressed remorse for wrongly employing the name of the Lazaro Law Office. (AC No. 9259, Rodica v. Lazaro, et. al., August
23, 2012)

SC: Dual Citizens Must Renounce Foreign Citizenship In Accordance with RA 9225
Before Running for Public Office
Posted: September 6, 2012; By Jay B. Rempillo

Failure to renounce foreign citizenship in accordance with the exact tenor of Section 5(2) of Republic Act (R.A.) No. 9225
[Citizenship Retention and Re-Acquisition Act of 2003]renders a dual citizen ineligible to run for and thus hold any elective
public office.

Thus held the Supreme Court as it dismissed the petition for certiorari of the winning vice-mayoral candidate of Caba, La
Union who was unseated after being disqualified on the ground that her personal declaration of renunciation of her
Australian citizenship was not under oath as required by RA 9225.
In a 24-page decision penned by Justice Bienvenido L. Reyes, the Court En Banc affirmed in toto the assailed resolution of
the Commission on Elections (COMELEC) en banc dated September 6, 2011 that affirmed the consolidated Decision dated
October 22, 2010 of the Bauang, La Union Regional Trial Court (RTC), Branch 33 that had declared Teodora SobejanaCondon disqualified and ineligible to her position as Caba, La Union Vice-Mayor.
The Court held that petitioner Sobejana-Condon was disqualified from running for elective office for failure to renounce her
Australian citizenship under oath contrary to the exact mandate of Sec. 5(2) that the renunciation of foreign citizenship must
be sworn before an officer authorized to administer oath.

The language of the provision is plain and unambiguous. It expresses a single, definite, and sensible meaning and must thus
be read literally. The foreign citizenship must be formally rejected through an affidavit duly sworn before an officer
authorized to administer oath, the Court held.

The Court further held that the petitioners act of running for public office does not suffice to serve as an effective
renunciation of her Australian citizenship. While the Court has previously declared that the filing by a person with dual
citizenship of a certificate of candidate is already considered a renunciation of foreign citizenship, such ruling was already
adjudged superseded by the enactment of RA 9255 on August 29, 2003 which provides for the additional condition of a
personal and sworn renunciation of foreign citizenship. It added that the fact that petitioner won the elections can not cure
the defect of her candidacy since 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.

[Petitioner]

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, held the Court.
The Court also held that it cannot read the Australian Citizen Act of 1978 under which petitioner claim she deemed to have
lost her Australian citizenship into RA 9225 as the Court would be applying not what the legislative department has deemed
wise to require. To do so would be a brazen encroachment upon the sovereign will and power of the people of this Republic.

Petitioner Sobejano-Condon was a natural-born Filipino citizen on August 8, 1944 but became a naturalized Australian
citizen due to her marriage to one Kevin Thomas Condon on December 13, 1984. On December 2, 2005, she filed an
application to re-acquire Philippine citizenship before the Philippine Embassy in Canberra, Australia pursuant to Sec. 3 of RA
9225, which was approved and she took her oath of allegiance to the Republic on December 5, 2005.

On September 18, 2006, petitioner filed an unsworn Declaration of Renunciation of Australian Citizenship before the
Department of Immigration and Indigenous Affairs, Canberra, Australia, which in turn issued the order dated September 27,
2006 certifying that she has ceased to be an Australian citizen.
She ran for Mayor in her hometown of Caba, La Union in 2007 elections but lost her bid. She ran again and won in the May
2010 elections, this time for position of Vice-Mayor, and took her oath on May 13, 2010. However, private respondents Luis
M. Bautista, et al., all registered voters of Caba, La Union, filed separate petitions for quo warranto questioning her eligibility
before the RTC on the issue of her dual citizenship and that she failed to execute a personal and sworn renunciation of any
and all foreign citizenship before any public officer authorized to administer an oath.
The RTC on October 22, 2010 ruled that petitioners failure to comply with sec. 5(2) of RA 9225 rendered her ineligible to run
and hold public office. It also nullified her proclamation as winning candidate and declared the position of Vice-Mayor in
Caba, La Union vacant. Sobejana-Condon appealed to the COMELEC and the poll bodys Second Division dismissed the same
for failure to pay the docket fees within the prescribed period. On motion for reconsideration, the appeal was reinstated by
the COMELEC en banc in its September 6, 2011 resolution. However, the COMELEC en banc,in the same resolution,
concurred with the findings and conclusions of the RTC. Thus, it dismissed petitioners instant appeal for lack of merit and
affirmed the October 22, 2010 decision of the RTC, as well as granted the Motion for Execution filed by private respondents.
The Court held also that the COMELEC en banc did not commit grave abuse of discretion when it proceeded to decide the
substantive merits of the petitioners appeal after ruling for reinstatement. It held that an appeal may be simultaneously
reinstated and definitively resolved by the COMELEC en banc in a resolution disposing of a motion for reconsideration
pursuant to Sec. 3, Art. IX-C of the Constitution and Sec. 5(c), Rule 3 of the COMELEC Rules of Procedure.
The Court further held that the COMELEC en banc has the power to order discretionary execution of judgment which is
expressly sanctioned by Section 1, Rule 41 of the COMELEC Rules of Procedure.
Citing Sec. 2, Rule 39 of the Rules of Court, the Court also held that execution pending appeal may be issued by an appellate
court after the trial court has lost jurisdiction.
The Court held that private respondents are not estopped from questioning petitioners eligibility to hold public office
pursuant to Sec. 253 of the Omnibus Election Code which allows the filing of quo warranto petition within 10 days after the
proclamation of the elections results, which was what private respondents did. (GR No. 198742, Sobejana-Condon v.
COMELEC, August 10, 2012)

SC Upholds In-House Computation of Appraisal Value of Properties Purchased by


Retired Justices
Posted: August 23, 2012; By Anna Katrina M. Martinez

The Supreme Court has upheld the validity of in-house computation made by the Property Division of the Courts Office of
Administrative Services (OAS) in computing the appraisal value that a retired Chief Justice and four retired Associate
Justices of the Supreme Court paid to acquire the government properties they used during their tenure.
In a 13-page per curiam resolution, the Court confirmed that the OAS-Property Divisions use of the formula based on
Constitutional Fiscal Autonomy Group (CFAG) Joint Resolution No. 35 dated April 23, 1997, as directed under the Court
Resolution dated March 23, 2004, was legal and valid.
(T)he use of the formula provided in CFAG Joint Resolution No. 35 is a part of the Courts exercise of its discretionary
authority to determine the manner the granted retirement privileges and benefits can be availed of, said the Court. Any kind
of interference on how these retirement privileges and benefits are exercised and availed of violates the fiscal autonomy and

independence of the Judiciary, but also encroaches upon the constitutional duty and privilege of the Chief Justice and the
Supreme Court En Banc to manage the Judiciarys own affairs.
The Court said that this view finds full support in the Government Accounting and Auditing Manual, Volume 1, particularly
Section 501 of Title 7, Chapter 3, which states that the full and sole authority and responsibility for the divestment and
disposal of property and other assets owned by the national government agenciesshall be lodged in the heads of the
departments, bureaus, and offices of the national government.

This provision clearly recognizes that the Chief Justice, as the head of the Judiciary, possesses the full and sole authority and
responsibility to divest and dispose of the properties and assets of the Judiciary; as Head of the Office, he determines the
manner and the conditions of disposition, which in this case relate to a benefit, said the High Court.

The Court emphasized: As the usual practice of the Court, this authority is exercised by the Chief Justice in consultation with
the Court En Banc. However, whether exercised by the Chief Justice or by the Supreme Court En Banc, the grant of such
authority and discretion in unequivocal and leaves no room for interpretations and insertions.
In June 2010, the Legal Services Sector, Office of the General Counsel of the COA issued an Opinion which found that an
underpayment amounting to P221,021.50 resulted when five retired Supreme Court justices purchased from the Court the
personal properties, i.e. motor vehicles and a television set, assigned to them.
The COA alleged that the Supreme Court OAS-Property Division erroneously appraised the subject motor vehicles by
applying CFAG Joint Resolution No. 35 and its guidelines, in compliance with the March 23, 2004 Resolution of the Court En
Banc in AM No. 03-12-01 (Resolution Adopting Guidelines on the Purchase of Judiciary Properties by Retiring Members of
the Supreme Court and Appellate Courts), when it should have applied the formula found in COA Memorandum No. 98-569A dated August 5, 1998.
The Court, in upholding the in-house computation applied by the OAS-Property Division, ruled that the constitutional
provision regarding the COAs authority to conduct post-audit examinations on constitutional bodies granted fiscal autonomy
must be read not only in light of the Courts fiscal autonomy, but also in relation with the constitutional provisions on
judicial independence and the existing jurisprudence and Court rulings on these matters.

The High Court added that one of the most important aspects of judicial independence is the constitutional grant of fiscal
autonomy.

While, as a general proposition, the authority of legislatures to control the purse in the first instance in unquestioned, any
form of interference by the Legislative or the Executive on the Judiciarys fiscal autonomy amounts to an improper check on a
co-equal branch of government, lamented the Court. If the judicial branch is to perform its primary function of
adjudication, it must be able to command adequate resources for that purpose.
The Court stated that by way of long standing tradition which is partly based on the intention to reward long and faithful
service, the sale to the retired Justices of the specifically designated properties that they used during their incumbency has
been recognized both as a privilege and a benefit, adding that this has become an established practice within the Judiciary
that even the COA has previously recognized. (AM No. 11-7-10-SC, Re: COA Opinion on the Computation of the Appraised
Value of the Properties Purchased by the Retired Chief/Associate Justices of the Supreme Court, July 31, 2012)

SC Allows Lawyer Who Reacquired Philippine Citizenship to Practice Law


Posted: August 23, 2012; By Bianca M. Padilla

The Supreme Court En Banc has recently granted the petition of a lawyer to practice law in the Philippines once again after
losing the said privilege to practice law when he became a citizen of the United States of America in 1981 and then reacquiring his Philippine citizenship in 2006 pursuant to RA 9225, the Citizenship Retention and Re-Acquisition Act of 2003.
The Court further directed the Office of the Bar Confidant (OBC) to draft the necessary guidelines for the re-acquisition of the
privilege to resume the practice of law for the guidance of the Bench and the Bar.
In a six-page resolution penned by Justice Bienvenido L. Reyes, the Court unanimously held that upon favorable
recommendation from the OBC, Atty. Epifanio B. Muneses satisfactorily complied with all the requirements sought by the
OBC and met all the qualifications and none of the disqualifications for membership in the Bar. In particular, he had

submitted in compliance the following: 1) Petition for Re-Acquisition of Philippine Citizenship; 2) Order (for Re-Acquisition
of Philippine Citizenship); 3) Oath of Allegiance to the Republic of the Philippines; 4) Certificate of Re-Acquisition/Retention
of Philippine Citizenship issued by the Bureau of Immigration, in lieu of the Identification Certificate; 5) Certification dated
May 19, 2010 of the IBP-Surigao City Chapter attesting to his good moral character as well as his updated payment of annual
membership dues; 6) Professional Tax Receipt (PTR) for the year 2010; 7) Certificate of Compliance with the MCLE for the
2nd compliance period; and 8) Certification dated December 5, 2008 of Atty. Gloria Estenzo-Ramos, Coordinator, UC-MCLE
Program, University of Cebu, College of Law attesting to his compliance with the MCLE.

The Court sees no bar to the petitioners resumption to the practice of law in the Philippines, the Court declared, subject to
the condition that Atty. Muneses re-take the Lawyers Oath and pay the appropriate fee.

The Court reiterated that Filipino citizenship is a continuing requirement for the practice of law, loss of which means the
termination of ones membership in the Bar and the privilege to engage in the practice of law. Thus, a Filipino lawyer who
becomes a citizen of another country but later re-acquires his Philippine citizenship under RA 9225 remains to be a member
of the Philippine Bar, it added. It also noted that the right to resume the practice of law, however, is not automatic and
Section 5 of RA 9225 states that a person who intends to practice his profession in the Philippines must apply with the
proper authority for the license or permit to engage in such practice. (BM No. 2112, In Re: Petition to Re-Acquire the
Privilege to Practice Law in the Philippines, Epifanio B. Muneses, Petitioner, July 24, 2012)

SC Upholds President's Confirmation of Sentence against Major Gen. Garcia


Posted: August 17, 2012; By Jay B. Rempillo

The Supreme Court has dismissed the petition of former Armed Forces of the Philippines (AFP) comptroller Major General
Garlos F. Garcia that sought to annul the September 9, 2011 Confirmation of Sentence by the Office of the President (OP).
The sentence handed down by the Special General Court Martial No. 2 had ordered his dishonorable discharge from service,
forfeiture of all his pay and allowances, and confinement for two years in a penitentiary.
In a 28-page decision penned by Justice Diosdado M. Peralta, the Courts Third Division held that the OP did not commit any
grave abuse of discretion in issuing the Confirmation of Sentence.
The Court upheld the authority of the President, as Commander-in-Chief, to confirm the sentence. It held that the General
Court Martial had jurisdiction over the case since it was indisputable that Garcia was an officer in the active service of AFP
when he committed the violations until his arraignment. Garcias mandatory retirement on November 18, 2004 did not divest
the General Court Martial of its jurisdiction. And since the General Court Martial has jurisdiction, the Court held that the
President, as Commander-in-Chief, also acquired jurisdiction as mandated under Article 47 of the Articles of War.

The Court stressed that Article 48 of the Articles of War vests on the President, as Commander-in-Chief, the power to approve
or disapprove the entire or any part of the sentence given by the court martial, while Article 49 of the same grants the
President the power to mitigate or remit a sentence.

Thus, the power of the President to confirm, mitigate and remit a sentence of erring military personnel is a clear recognition

of the superiority of civilian authority over the military. However, although the law (Articles of War) which conferred those
powers to the President is silent as to the deduction of the period of preventive confinement to the penalty imposed, as
discussed earlier, such is also the right of an accused provided for by Article 29 of the RPC, held the Court.

On September 16, 2011, or a week after the OP confirmed the sentence of the court martial against him, Garcia was arrested
and detained and continues to be detained at the maximum security compound of the National Penitentiary in Muntinlupa.
Garcia, tried by the Special General Court Martial NR 2, was charged with and convicted of violation of the 96th Article of
War (Conduct Unbecoming an Officer and Gentleman) and violation of the 97th Article of War (Conduct Prejudicial to Good
Order and Military Discipline) for failing to disclose all his assets in his Sworn Statement of Assets and Liabilities and
Networth for the year 2003 as required by RA 3019, as amended in relation to RA 6713.

Garcia, among others, argued that the confirmation issued by the OP directing his two-year detention in a penitentiary had
already been fully served following his preventive confinement. He was released on December 16, 2010 after a preventive
confinement for six years and two months. He was initially confined at his quarters at Camp General Emilio Aguinaldo before
he was transferred to the Intelligence Service of the Armed Forces of the Philippines (ISAFP) Detention Center, and latter to
the Camp Crame Custodial Detention Center.
The Court ruled that applying the provisions of Article 29 of the Revised Penal Code (RPC) ( Period of preventive
imprisonment deducted from time of imprisonment), the time within which the petitioner was under preventive confinement
should be credited to the sentence confirmed by the Office of the President, subject to the conditions set forth by the same
law.
The Court held that the General Court Martial is a court within the strictest sense of the word and acts as a criminal court.
As such, certain provisions of the RPC, insofar as those that are not provided in the Articles of War and the Manual for
Courts-Martial, can be supplementary. [A]bsent any provision as to the application of a criminal concept in the
implementation and execution of the General Court Martials decision, the provisions of the Revised Penal Code, specifically
Article 29 should be applied. In fact, the deduction of petitioners (Garcia) period of confinement to his sentence has been
recommended in the Staff Judge Advocate Review.
The Court further held that the application of Article 29 of the RPC in the Articles of War is in accordance with the Equal
Protection Clause of the 1987 Constitution. [T]he concept of equal justice under the law requires the state to govern
impartially, and it may not draw distinctions between individuals solely on differences that are irrelevant to a legitimate
governmental objective. It, however, does not require the universal application of the laws to all persons or things without
distinction. What it simply requires is equality among equals as determined according to a valid classification. Indeed, the
equal protection clause permits classification, held the Court.
Finally, the Court found without merit Garcias contention that his right to a speedy disposition of his case was violated. It
noted that Garcia did not allege any delay during the trial only the delay in the confirmation of the sentence by the President.
The Court found such delay to Garcias advantage because his sentence could not be served absent such confirmation. (GR
No. 198554, Garcia v. Executive Secretary, July 30, 2012)

SC Issues Writs of Kalikasan to Protect Mt. Apo National Park, Stop Subic Coal Plant
Posted: August 10, 2012; By Joachim Florencio Q. Corsiga

The Supreme Court has recently issued two writs of kalikasan: the first, to protect the Mount Apo Natural Park, and the
second, to stop the construction of a 300-megawatt coal-fired power plant in Subic.
Agham Party List president, Angelo B. Palmones in his petition, sought the issuance of a writ of kalikasan, with the prayer to
direct Department of Environment and National Resources (DENR) Secretary Ramon Jesus P. Paje and the Mt. Apo Natural
Park-Protected Area Management Board to file charges against those suspected of conducting illegal activities, such as illegal
logging, within the protected area. The petition also noted the consequences of the continuing environmental violations, as
when tropical storm Washi (Sendong) ravaged Mindanao and caused the deaths of at least 1,257 persons, with 6,071 injured
and 182 missing. The Court, in issuing the writ, ordered the DENR and the Mount Apo Natural Park-Protected Area
Management Board to make a verified return of the writ to the High Court within 10 days from receipt thereof.
In a separate resolution, the Court ordered Secretary Paje, as well as the Subic Bay Metropolitan Authority and Redondo
Peninsula Energy, Inc., to answer allegations against the latters proposed Subic coal-fired power plant in the Subic free port
zone. The petition sought to stop the construction of the plant, alleging that the same violated its environmental impact
statement and environment compliance certificate (ECC). The petition also alleged that the ECC was issued without
complying with the condition of affected people and without prior approval of the local government units. The Court, in
referring the case the Court of Appeals, ordered the respondents to make a verified return of the writ before the appellate
court within 10 days.
The writ of kalikasan, as defined by the Rules of Court is a remedy available to a natural or juridical person, entity authorized
by law, peoples organization, non-governmental organization, or any public interest group accredited by or registered with
any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or
threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity,
involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more
cities or provinces. (Min Res., GR. No. 202493, Casino et al. vs. DENR, July 31, 2012 and GR. No. 202511, Agham Party List
vs. DENR, July 31, 2012)

SC Dismisses Disbarment Complaint Against Senior Justice Carpio


Posted: August 10, 2012; By Jay B. Rempillo

The Supreme Court today unanimously dismissed outright the complaint-affidavit for disbarment against Senior Associate
Justice Antonio T. Carpio filed by Lauro G. Vizconde.
In a two-page resolution, the Court En Banc held that it found no basis to proceed with the disbarment complaint against
Senior Associate Justice Carpio in light of Article XI, Section 2 of the Constitution which provides that members of the
Supreme Court may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.
Thus in In Re: Raul M. Gonzalez and Marcoleta v. Borra, the High Court gave full effect to the exclusive terms of Art. XI,
Section 2 by ruling that public officers such as members of the Supreme Court who are required under the Constitution to be
members of the Philippine Bar and who may be removed from office only by impeachment cannot be charged with
disbarment during the incumbency of such public officer.
Thus, we are barred by no less than the Constitution from entertaining complainant Lauro G. Vizcondes complaint against
Senior Associate Justice Antonio T. Carpio, currently a sitting Justice of this Court, ruled the Court. Senior Associate Justice
Carpio inhibited, while Justices Maria Lourdes P.A. Sereno and Estela M. Perlas-Bernabe were on leave. (AM No. 12-8-4SC, Min. Res., (Re: Complaint-Affidavit for Disbarment Against Senior Associate Justice Antonio T. Carpio Filed by Mr.
Lauro G. Vizconde, August 10, 2012)

Supreme Court Upholds EO 13 Abolishing PAGC and Transferring its Functions to


the ODESLA
Posted: August 3, 2012; By Bianca M. Padilla

The Supreme Court En Banc has unanimously dismissed the petition of Prospero Pichay, Jr., former Chairperson of the
Board of Trustees of the Local Water Utilities Administration (LWAU), questioning the constitutionality of EO 13 (Abolishing
the Presidential Anti-Graft Commission and Transferring its Investigative, Adjudicatory, and Recommendatory Functions to
the Office of the Deputy Executive Secretary for Legal Affairs, Office of the President). Pichay was investigated for grave
misconduct in the performance of his duties by Executive Secretary Paquito Ochoa by virtue of the said EO.

In the 22-page decision penned by Justice Estela M. Perlas-Bernabe, the Court ruled that Pichay failed to discharge the
burden of proving the illegality of EO 13. It ruled that the abolition of OAGC and the transfer of functions to IAD-ODESLA is
within the prerogative of the President as Section 31 of the Administrative Code of 1987 (EO 292) expressly vests in the
President the authority to reorganize the offices under him in order to achieve simplicity, economy and efficiency. The Court
stressed that both offices belong to the Office of the President Proper.
The Court held that the reorganization was a mere alteration of the administrative structure of the existing structure of
ODESLA through the establishment of a Third Division - Investigative and Adjudicatory Division through which ODESLA
could take on the additional functions it has been tasked to discharge under EO 13. Moreover, the Court held that the
reorganization was done in good faith as it is done for purposes of economy and efficiency.
EO 13 also does not usurp on the legislative power to appropriate funds even if it does not allocate a specific amount for the
IAD-ODESLA in the annual budget of the Office of the President since the 1987 Constitution provides that the President may
augment any item in the General Appropriations Law for their respective offices from savings in other items of their
respective appropriations. As such, the President is merely allocating the existing funds previously appropriated by Congress
for his office, the Court explained.

The Court also ruled that IAD-ODESLA is a fact-finding and recommendatory body not vested with quasi-judicial powers
since it did not have the power to settle controversies nor adjudicate cases. Neither does EO 13 encroach upon the jurisdiction
of the Office of the Ombudsman as the Ombudsmans jurisdiction is to investigate and prosecute criminal cases cognizable by
the Sandiganbayan while IAD-ODESLA only deals with administrative cases. The Court stressed that the authority of the
Ombudsman to investigate elective and appointive officials in the government is not exclusive.
The Court likewise noted that EO 13 did not violate Pichays right to due process and equal protection. 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, it declared. Citing Farinas v. Executive Secretary, it held
that the equal protection clause is not infringed by legislation which applies alike to all persons within such class. Moreover,
it noted that along with the Presidents power to remove and/or discipline presidential appointees comes the authority to
investigate such public officials. (GR No. 196425, Pichay, Jr. v. Office of the Deputy Executive Secretary, July 24, 2012)

SC Denies Habeas Data Petition Filed by Dingras Mayor


Posted: August 3, 2012; By Joachim Florencio Q. Corsiga

The Supreme Court recently affirmed a Regional Trial Courts decision insofar as it denied the petition for habeas data filed
by former Dingras, Ilocos Norte Mayor Marynette R. Gamboa against the Philippine National Police in Ilocos Norte (PNPIlocos Norte) which had tagged her as a having a private army.
In a 20-page En Banc decision penned by Justice Maria Lourdes P. A. Sereno, the Court held that although the right of
privacy protected by the writ ofhabeas data is considered a fundamental right, the right of privacy may nevertheless succumb
to an opposing or overriding state interest deemed legitimate and compelling.
Gamboa filed the petition for the issuance of a writ of habeas data in the Laoag City Regional Trial Court (RTC) against the
PNP-Ilocos Norte for allegedly violating her right to privacy and maligning her reputation when the latter submitted
information to the Zearosa Commission, classifying her as someone who keeps a private army group. Purportedly without
the benefit of data verification.
The Zearosa Commission was created under former President Gloria Macapagal-Arroyo to address the alleged existence of
private armies in the country. Upon the conclusion of its investigation, the Zearosa Commission released and submitted its
report to the Office of the President. The report was later leaked to third parties and the media.

In her petition, Gamboa prayed for the (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.

In denying the petition for review, the Supreme Court held that the state of dismantling private army groups 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.
The Court explained that the fact the PNP released information to the Zearosa 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. In refuting
Gamboas allegation that there was no validation process, the Court said that safeguards were put in place to make sure that
information collected maintained its integrity and accuracy.

Pending the enactment of legislation on data protection, the Court declined to make any further determination as to the
propriety of sharing information during specific stages of intelligence gathering. To do otherwise would supplant the
discretion of investigative bodies in the accomplishment of their functions, resulting in an undue encroachment on their
competence.
The Court also stressed that Gamboa failed to establish that respondents were responsible for this unintended disclosure. In
any event, there are other reliefs available to her to address the purported damage to her reputation, making a resort to the
extraordinary remedy of the writ of habeas data unnecessary and improper.
The Court ruled that Gamboa was unable to prove through substantial evidence that her inclusion in the list of individuals
maintaining private armies made her and her supporters susceptible to harassment and to increased police surveillance. In
this regard, respondents sufficiently explained that the investigations conducted against her were in relation to the criminal
cases in which she was implicated. As public officials, they enjoy the presumption of regularity, which she failed to overcome.
The Court also noted that Gamboa herself admitted that the PNP had a validation system, which was used to update
information on individuals associated with private armies and ensure that the data mirrored the situation on the field.
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 ones right to the truth and to informational
privacy. The writ is 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 gathering, collecting or

storing of data information regarding the person, family, home and correspondence of the aggrieved party. (GR No.
193636, Gamboa vs P/SSupt Chan and P/Supt Fang, July 24, 2012)

SC: For Now, Sen. Escudero, Rep. Tupas May Both Sit in JBC
Posted: August 3, 2012; By Jay B. Rempillo

The Supreme Court today allowed Senator Francis Joseph G. Escudero and Rep. Niel C. Tupas, Jr. to both sit in the
deliberations of the Judicial and Bar Council (JBC) on who would be included in the short list of nominees for Chief Justice to
be submitted to Malacaang.
The High Courts directive came a day after it heard in oral arguments the motion for reconsideration of its July 17, 2012
decision filed by the Office of the Solicitor General representing Sen. Escudero and Rep. Tupas, Jr., on the Courts July 17,
2012 decision on GR No. 202242, Francisco I. Chavez v. Judicial and Bar Council, which held that only one member of
Congress can sit as representative in the JBC deliberations.
In a three-page resolution, the Court also suspended the effect of the second paragraph of the dispositive portion of the July
17, 2012 decision, which reads: This disposition is immediately executory.

The Court, in its latest resolution, also gave the JBC, Sen. Escudero, Rep. Tupas, Jr., and Francisco I. Chavez 10 days from
notice within which to file their respective memoranda.

In the best interest of justice, the High Court also held that all its present members, including those who in the meantime
have inhibited themselves, be given the opportunity to take part in the final deliberations and resolution of the petition
considering the risk of either under-representation or over-representation of Congress in the JBC.

The Court finds it more equitable for the present members of the JBC to resume their task of selecting nominees for the
vacant position of the Chief Justice. Accordingly, pending the final resolution of this petition, Senator Escudero and
Congressman Tupas, Jr., in their capacities as representatives of Congress, may simultaneously sit as ex officio members of
the JBC and exercise the functions flowing therefrom, held the Court.
SC Justice Diosdado M. Peralta, who presided the JBC panel interview of the candidates for the position of the next Chief
Justice held from July 24 to 27, 2012, also presided during the oral arguments held on Wednesday, August 2, 2012. Also
participating in the oral argument were SC Justices Bienvenido L. Reyes, Jose Portugal Perez, Roberto A. Abad, Lucas P.
Bersamin, Peralta, Mariano C. Del Castillo, Martin S. Villarama, Jr., Jose Catral Mendoza, and Estela M. Perlas-Bernabe.
Acting Chief Justice Antonio T. Carpio and Justices Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro, Arturo D.
Brion, and Maria Lourdes P.A. Sereno inhibited from the oral arguments as they are among those considered for nomination
by the JBC to the Chief Justice post. (Min. Res., GR 202242,Chavez v. JBC, August 3, 2012)

SC Upholds Disallowance of NHA Incentive Allowances


Posted: August 2, 2012; By Anna Katrina M. Martinez

Where there is an express provision of law prohibiting the grant of certain benefits, the law must be enforces even if it
prejudices certain parties on account of an error committed by public officials in granting the benefit.

Thus held the Supreme Court as it ruled as without legal basis the grant of incentive allowances totaling P401,284.39 by the
National Housing Authority (NHA) to five of its project personnel.
In a 14-page decision, the Court En Banc, through Justice Maria Lourdes P. A. Sereno, dismissed the petition for review on
certiorari filed by five project personnel of the NHA which sought to annul the decision of the Commission of Audit (COA),
dated October 24, 2008, affirming the disallowance of the Incentive Allowance equivalent to 20% of their respective basic pay
received by them under NHA Resolution No. 464.

The Court held that at the time the NHA issued Resolution No. 464 in 1982, Section 3 of PD 1597 had already expressly
repealed all decrees, executive orders, and issuances that authorized the grant of allowance to groups of officials or employees
despite the inconsistency of those allowances with the position classification or rates indicated in the National Compensation
and Position Classification Plan.
The Court added that RA 6758, otherwise known as the Compensation and Position Classification Act of 1989, further
reinforced this policy by expressly decreeing that all allowances not specifically enumerated therein shall be deemed included
in the standardized salary rates prescribed.

In this case, the incentive allowances granted under Resolution No. 464 are clearly not among those enumerated under RA
6758, noted the Court. It added that neither had there been any allegation that the allowances were specifically determined
by the Department of Budget and Management to be an exception to the standardized salary rates. Hence, such allowances
can no longer be granted after the effectivity of RA 6758.

The Court ruled that the claim of the petitioners that RA 6758 does not apply to the incentive allowances because these are
merely temporary in nature and are given only to few employees does not hold water. It noted that a reading of RA 6758
shows that it does not distinguish whether allowances are permanent in nature or are provided to an entire class of
government employees. In fact, the law itself provides that it is the policy of the state to provide equal pay for substantially
equal work and to base differences in pay upon substantive differences in duties and responsibilities, stressed the Court.
Earlier, the Legal and Adjudication Office-Corporate of the COA haddisallowed the total amount of P401,284.39,
representing the first and second tranches of the incentive allowance granted to the petitioners, and found the following
petitioners liable: Generoso Abellanosa, District Manager, for approving the transaction, signing the check, and being the
payee; Bernadette Laigo, Finance Office, for certifying that the expenses were necessary and lawful, for certifying the
adequacy of the documentary attachments and fund availability, and for being the payee; and all the other payees, namely,
Jerry Baviera, Carmencita Pineda, Menelio Rucat, and Doris Siao.
On appeal, the Adjudication and Settlement Board of the COA affirmed the disallowance, stressing NHA Resolution No. 464
was defective for having no legal basis since the power of the boards of government-owned and -controlled corporations and
government financial institutions to grant compensation and incentives had already been repealed by Section 3 of PD 1597,
and that RA 6758 effectively repealed all laws and issuances that exempted agencies from the coverage of the system. This
decision was later on affirmed by the COA. (GR No. 185806, Abellanosa v. Commission on Audit and National Housing
Authority, July 24, 2012)

SC Declares PRA Exempt From Real Property Taxes; Voids Auction Sale of Its
Reclaimed Properties for Tax Delinquencies
Posted: August 1, 2012; By Bianca M. Padilla

The Supreme Court recently held the Philippine Reclamation Authority (PRA) as a government instrumentality exempt from
payment of real property taxes and thus declared void all real estate tax assessments, auction sale and certificate of sale
issued by Paraaque City Treasurer Liberato M. Carabeo over the PRAs property. The reclaimed property assessed for real
property taxes involves several portions of foreshore and offshore areas of Manila Bay, including those located in Paraaque,
taxed for the years 2001 and 2002.

Moreover, the Court declared all reclaimed properties owned by PRA exempt from real estate taxes since reclaimed lands are
reserved lands for public use and properties of public dominion and that unless withdrawn from public use by law or
presidential proclamation, ownership of reclaimed lands remains with the State. It added that properties of public dominion
are not subject to execution or foreclosure sale.
In a 21-page decision penned by Justice Jose Catral Mendoza, the Courts Third Division unanimously granted the petition
for review on pure question of law of the PRA from the decision of the Regional Trial Court of Paraaque which had upheld
the assessment of Paraaque City Treasurer Carabeo. It pointed out under Section 234(a) of the Local Government Code, real
property owned by the State is exempt from real property tax unless the beneficial use has been granted to a taxable person.
The Court also ruled that PRA could not be a GOCC since it was neither a stock nor non-stock corporation and did not
operate commercially. PRA is a government instrumentality vested with corporate powers and performing an essential
public service pursuant to Section 2(10) of the Introductory Provisions of the Administrative Code, it declared.

The Court differentiated a government-owned or controlled corporation (GOCC) vis--vis a government instrumentality.
Citing Manila International Airport Authority v. Court of Appeals, it noted that a GOCC created thru special charters must
meet two conditions: that the GOCC is established for the common good and that it meets the test of economic viability. In
contrast, government instrumentalities vested with corporate powers and performing governmental or public functions need
not meet the test of economic viability since these instrumentalities perform essential public services for the common good.
PRA provides a coordinated, economical, and efficient reclamation of lands and the administration and operation of lands
belonging to the government with the object of maximizing their utilization and hastening their development consistent with
public interest, the Court declared. (GR No. 191109, Philippines v. City of Paraaque, July 18, 2012)

JBC: Two CJ Candidates No Longer Considered for Nomination


Posted: July 25, 2012; By Jay B. Rempillo

The Judicial and Bar Council (JBC) today announced that it will not any more interview and consider for nomination private
lawyer Vicente R. Velasquez and former Immigration Commissioner Rufus B. Rodriguez on July 26 and July 27, respectively
as originally scheduled.

This is because the two candidates failed to comply with the documentary requirements in their application for the position of
Chief Justice.

With the development, only 20 candidates are vying for inclusion in the JBC shortlist of nominees, which will be submitted to
the President.

The JBC Panel has already interviewed Presidential Commission on Good Government Chair Andres B. Bautista, lawyer
Soledad M. Cagampang-De Castro, Justice Secretary Leila M. De Lima, De La Salle University Law Dean Jose Manuel I.
Diokno, Solicitor General Francis H. Jardeleza, and lawyer Maria Carolina T. Legarda.
Interviewed today were Supreme Court Justice Roberto A. Abad, lawyer Rafael A. Morales, former University of the
Philippines law dean Raul C. Pangalangan, SC Justice Arturo D. Brion, Commission on Elections Commissioner Rene V.
Sarmiento, and retired Judge Manuel DJ. Siayngco, Jr.

Those to be interviewed on Thursday, July 26, are University of the East law dean Amado D. Valdez, Acting Chief Justice
Antonio T. Carpio, SC Justice Teresita J. Leonardo-De Castro, and former Ateneo law dean Cesar L. Villanueva. Those
scheduled on Friday are Securities and Exchange Commission Chair Teresita J. Herbosa, former Executive Secretary Ronaldo
B. Zamora, SC Justice Maria Lourdes P.A. Sereno, and SC Justice Presbitero J. Velasco, Jr.
With regard to the JBC proceedings as to the Chief Justice vacancy, the Chair is SC Justice Peralta as the most senior SC
Justice who is not a candidate for Chief Justice per the Courts ruling in GR No. 202143, Dulay v. JBC, dated July 3, 2012.
The regular JBC members are retired SC Justice Regino C. Hermosisima (retired SC Justice), Atty. Jose V. Mejia (academe),
Atty. Maria Milagros Nolasco Fernan-Cayosa (Integrated Bar of the Philippines), and retired CA Justice Aurora S. Lagman
(private sector).
The Chief Justice is the ex officio chair of JBC, while the Supreme Court En Banc Clerk of Court Atty. Enriqueta E. Vidal is ex
officio secretary.
Secretary De Lima, also an ex officio member but a candidate to the Chief Justice post, is replaced in the JBC proceedings to
select the CJ nominees by Undersecretary Michael Frederick Musngi. Only Rep. Niel Tupas, Jr. is seating in the panel
conducting the interview for the next Chief Justice following the High Courts ruling in GR No. 202242, Chavez v. JBC, dated
July 17, 2012, which held that only one member of Congress can sit as representative in the JBC deliberations.

SC Upholds Comelec's Jurisdiction Over Cases Pertaining to Party Leadership and


the Nominations of Party-List Representatives
Posted: July 24, 2012; By Bianca M. Padilla

The Court En Banc has unanimously affirmed the ruling of the Commission of Elections (COMELEC) to recognize the
nominees listed in the Certificate of Nomination filed by Citizen Battle Against Corruption (CIBAC) Party Lists President
Emmanuel Villanueva as the legitimate nominees of the party list and to expunge from its records the Certificate of
Nomination filed by Pia Derla.
In a 15-page decision penned by Justice Maria Lourdes P.A. Sereno, the Court held that RA 7941 ( Party-List System Act)
vested the COMELEC with jurisdiction over the nomination of party-list representatives and prescribing the qualifications of
each nominee and that no grave abuse of discretion can be attributed to the COMELECs First Division and COMELEC En
Banc which had declared President Villanueva the proper party to submit CIBACs Certificate of Nomination instead of Perla,
who allegedly served as acting secretary-general. As provided in Atienza v. Commission of Elections, COMELEC also
possesses 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 power to rule upon questions of party identity and leadership is
exercised by the COMELEC as an incident to its enforcement powers, the Court declared.
It likewise denied the petition for certiorari filed by Petitioners Luis K. Lokin, Jr. and Teresita E. Planas, the nominees of
Derla, under Rule 64 of the Rules of Court for being filed outside the required 30 day period. It stressed that while Rule 64
refers to the same remedy of certiorari as the general rule in Rule 65, they cannot be equated as they provide for different
reglementary periods. Rule 65 provides for a period of 60 days while Section 3, Rule 64 expressly provides for only 30 days.
CIBAC Party-List is a multi-sectoral registered to fight graft and corruption and to promote ethical conduct in the countrys
public service. The COMELEC ruled that Derla was unable to prove her authority to the Certificate of Nomination, whereas
President Villanueva presented overwhelming evidence of his authority from CIBAC to do so. (GR No. 193808, Lokin, Jr. v.
Commission on Elections, June 26, 2012)

SC Upholds COA Disallowance of Disbursement for Malabon Consultancy Contracts


Posted: July 19, 2012; By Bianca M. Padilla

The Supreme Court En Banc has unanimously dismissed the petition for certiorari filed by former Vice Mayor of Malabon
Arnold Vicencio seeking to annul Decision No. 2008-022 of the Commission of Audit (COA), which upheld Audit Observation
Memorandum (AOM) No. 2005-12-019 declaring improper a disbursement for consultancy services contracted by Vicencio
worth P384,980 for the year 2005.
In a 13-page decision penned by Justice Maria Lourdes P.A. Sereno, the Court En Banc held that no grave abuse of discretion
may be imputed on the COA for the issuance of the decision as it was made in faithful compliance with its mandate and in
judicious exercise of its general audit power as conferred on it by the Constitution.
Former Vice Mayor Vicencio, representing the City Government of Malabon City, entered into contracts of consultancy
services with Jennifer S. Catindig, Atty. Rodolfo C. delos Santos, and Marvin T. Amiana during the year 2005, appropriating
P792,000 of the citys funds for these contracts. He based his authority on City Ordinance No. 15-2003 authorizing City Vice
Mayor Hon. Jay Jay Yambao to negotiate and enter into contracts for consultancy services for consultants in
the Sanggunian Secretariat for the period of June to December 2003.
The Court clarified that under Section 456 of the Local Government Code, which states the powers and duties of a city vicemayor, there is no inherent authority on the part of the city vice mayor to enter into contracts on behalf of the local
government unit, unlike that provided for the city mayor. Thus, the authority of the vice mayor to enter into contracts on
behalf of the city is strictly circumscribed by the ordinance granting it. In this case, the Court held that the authority of the
vice-mayor to enter into contracts on behalf of the city was strictly circumscribed by the ordinance granting it. Ordinance No.
15-2003 specifically authorized Vice-Mayor Yambao to enter into contracts for consultancy services. As this is not a power or
duty given under the law to the Office of the Vice-Mayor, Ordinance No. 15-2003 cannot be construed as a continuing
authority for any person who enters the Office of the Vice-Mayor to enter into subsequent, albeit similar, contracts.(G.R. No.
182069, Vicencio v. Villar, July 3, 2012)

SC: Calling Out Powers Exclusive to the President of the Philippines


Posted: July 19, 2012; By Bianca M. Padilla

The Court En Banc has unanimously declared null and void Proclamation No. 1 of Sulu Governor Abdusakur M. Tan
declaring a state of emergency in the Province of Sulu and called on the Philippine National Police (PNP), Armed Forces of
the Philipines (AFP) and Civilian Emergency Force (CEF) for assistance in providing peace and order in the vicinity.
.
In a 25-page decision penned by Justice Maria Lourdes P.A. Sereno, the Court granted the petition for certiorari and
prohibition of certain Sulu residents assailing the said Proclamation and its implementing guidelines.

The Court stressed that the calling out powers contemplated under the Constitution is exclusive to the President of the
Philippines as Commander-in-Chief and that a provincial governor is not endowed with the power to call upon the Armed
Forces at its own bidding.
It ruled that only the President is authorized to exercise emergency powers as provided under Section 23, Article VI and the
calling out powers under Section 7, Article VII of the 1987 Constitution. While the President exercises full supervision and
control over the police, a local chief executive, such as a provincial governor, only exercises operational supervision over the
police, and may exercise control only in day-to-day operations. As discussed in the deliberation of the Constitutional
Commission, only the President has full discretion to call the military when in his judgment it is necessary to do so in order
to prevent or suppress lawless violence, invasion or rebellion, the Court stressed.
The Court also held that Governor Tans reliance on Section 465 of the Local Government Code was unfounded because a
kidnapping situation cannot be considered a calamity or disaster as contemplated by the Code, which allows the Chief
Executive to carry out emergency measures as may be necessary during and in the aftermath of a man-made and natural
disasters and calamities.
The Court likewise declared the creation of the CEF invalid as the Section 21 of Article XI of the Constitution does not
authorize the provincial governor to organize private armed groups to help preserve the peace and order of a region, which is
the responsibility of local police agencies as provided by law. The defense and security of the regions, on the other hand, shall
be the responsibility of the National Government.
Governor Tan declared a state of emergency after the Abu Sayyaf Group (ASG) kidnapped three members of the International
Committee of the Red Cross (ICRC) in Sulu and threatened to behead one of the hostages if the government continued to
pursue their search and surround the ASG. An evacuation of the military camps and bases in the area was likewise demanded.
In lieu of the state of emergency, Governor Tan authorized the set up of checkpoints and chokepoints, conduct general search
and seizures including arrests and other actions necessary to ensure public safety pursuant to Section 465 of the Local
Government Code. (GR No. 187298, Kulayan v. Tan, July 3, 2012)

Supreme Court Upholds Dismissal of Charges Against Reiner Jacobi, et al.


Posted: July 16, 2012; By Bianca M. Padilla

The Supreme Court has dismissed the petition for certiorari filed by the Presidential Commission on Good Government
(PCGG) and its then Chairperson Magdangal Elma against two resolutions issued by Merceditas Guiterrez, acting as
Undersecretary of the Department of Justice (DOJ), which found no probable cause for falsification and use of falsified
document existed against Reiner Jacobi and his attorney, Crispin Reyes were not tainted with any grave abuse of discretion.
In a 46-page decision penned by Justice Arturo D. Brion, the Court's Second Division unanimously held that PCGG and
Chairman Elma failed to establish the existence of grave abuse of discretion on the DOJs part justifying judicial interference.
It stressed that the determination of probable cause is an executive function to which the Court has consistently adopted the
policy of non-interference in the conduct of preliminary investigations and to leave the investigating prosecutor with
sufficient latitude of discretion in the determination of what constitutes sufficient evidence to establish probable cause. As a
rule, the courts cannot substitute their own judgment for that of the Executive. To justify judicial intrusion, one must clearly
show that the prosecutor gravely abused his discretion amounting to lack or excess of jurisdiction in making his
determination.
The Court also held that since preliminary investigations is a determination of the existence of probable cause that a crime
has been committed and the accused probably committed it and does not involve a determination of the guilt or innocence of
an accused, the presumption that a person who has in his possession (actual or constructive) a falsified document and made
use of it, taking advantage of it and/or profiting from such use also authorized the falsification does not apply in preliminary
investigations. Mere possession of a falsified letter is likewise not enough to apply the presumption of authorship, it added.
It stressed that the crime of introducing a falsified document in a judicial proceeding punishable under Article 172 of
the Revised Penal Code requires that the accused has knowledge of the falsity of the document.
The Court also ruled that a petition for certiorari under Rule 65 and not Rule 43 of the Rules of Court was the proper remedy
to question the DOJs determination of probably cause. Memorandum Circular No. 58 (Reiterating and Clarifying the
Guidelines Set Forth in Memorandum Circular No. 1266 (4 November 1983) Concerning the Review by the Office of the
President of Resolutions Issued by the Secretary of Justice Concerning Preliminary Investigations of Criminal Cases) of the
Office of the President does not allow an appeal from the decision/order/resolution of the Secretary of Justice on preliminary
investigation of criminal cases through petition for review unless the offense is punishable by reclusion perpetua or death. As
thus, since offenses not punishable by reclusion perpetua or death have no plain, speedy, and adequate remedy in the
ordinary course of law, a petition for certiorari becomes the only remedy available to the party. The Court, however, held that

before a petition for certiorari under Rule 65 can be filed with the Supreme Court, it must first be filed in the Court of Appeals
(CA). The doctrine of hierarchy of courts must be respected because the Supreme Court is the court of last resort. It is not an
inflexible rule, however, and the Court may relax rules of procedure to avoid further delay in the interest of justice for special
and important reasons and when proper and under justifiable causes and circumstances.
Mr. Jacobi and his attorney, Crispin Reyes were accused of submitting two falsified letters from the PCGG as evidence when
Mr. Jacobi, through his counsel, Atty. Reyes filed a petition for mandamus against the PCGG and Chairperson Elma with the
Sandiganbayan for the latters alleged failure to perform their mandated duty to recover ill-gotten wealth and unexplained or
hidden deposits and assets of the former President Ferdinand Marcos. The two letters were also used in a complaint filed with
the Office of the Ombudsman against Chairperson Elma for violations of RA 3019 (Anti-Graft And Corrupt Practices Act).
After submitting these documents, Atty. Reyes later on sought the withdrawal of both letters because the authenticity of the
documents were found to be questionable. Upon further research, it was established that PCGG had no record of the two
letters submitted and the signatures and initials in one of the letters actually pertained to signatures and initials fixed to
another letter which had nothing to do with the falsified letter. The National Bureau of Investigation also confirmed the
falsified documents.
After receiving the confirmation that the letters were falsified, Chairperson Elma filed an affidavit-complaint with the DOJ
charging them with falsification and use of falsified documents under Article 171 and 172 of the Revised Penal Code. The
DOJs initial findings found probable cause against Mr. Jacobi and Atty. Reyes. Upon the filing of a motion for
reconsideration, however, DOJs Undersecretary Guitierrez overturned the findings. (GR No. 155996, Elma v. Jacobi, June
27, 2012)

SC Upholds Denial of PIATCO's Motion to Dismiss Complaint of Two Japanese


Corporations for Enforcement of Judgment
Posted: July 13, 2012; By Gleo Sp. Guerra

The Supreme Court has recently denied the petition of Philippine International Air Terminals Co., Inc. (PIATCO) to reverse
the decision of the Court of Appeals (CA) which had, among others, affirmed the denial by the Regional Trial Court, Branch
58 of Makati of PIATCOs motion to dismiss the complaint against it for enforcement of two Orders of the High Court of
Justice, Queens Bench Division, Technology and Construction Court in London, England (London Court).

The said Orders of the London Court ordered PIATCO to pay a total of US$34,343,789 and P116,825,365.34; and
US$46,933,677.49 to respondents Takenaka Corporation and Asahikosan Corporation, respectively, whom PIATCO had
contracted to construct and equip the Ninoy Aquino International Airport International Passenger Terminal III.
In a 12-page decision penned by Justice Diosdado M. Peralta, the Courts Third Division affirmed the decision and resolution
of the Court of Appeals, not finding any reason to overturn the CAs finding that there was no grave abuse of discretion on
the part of the trial court in denying the Motion to Dismiss and the Motion to Set the Motion to Dismiss for Hearing of
PIATCO as records reveal that both parties were given ample opportunity to be heard.
The Court further held that the issues PIATCO seeks to tackle in the requested hearing on the motion to
dismiss, i.e., novation, payment, extinguishment or abandonment of the obligation are better threshed out during trial proper
as it constitute the meat of PIATCO defense and would require the presentation of voluminous evidence.
As to PIATCOs argument that the complaint of respondent Japanese corporations should have been dismissed because of a
defective verification and certification against forum shopping, the Court held that even assuming this to be the case, it may
relax the application of procedural rules for the greater interest of justice. It noted that the case affects one of the countrys
most important public utilities, its premier international airport. Therefore the Court sees it fit to relax the rules in this case
to arrive at a full settlement of the parties claims and avoid further delay in the administration of justice, it stressed. (GR
No. 180245, Philippine International Air Terminals Co., Inc. v. Takenaka Corporation and Asahikosan Corporation, July 4,
2012)

SC Dismisses Graft Charges Against Enrile, Cojuanco, et al.


Posted: July 13, 2012; By Joachim Florencio Q. Corsiga

The Supreme Court recently affirmed the Office of the Ombudsmans dismissal of graft and corruption charges under RA
3019, the Anti-Graft and Corrupt Practices Act, against, among others, Senate President Juan Ponce Enrile and Eduardo M.
Cojuangco.
In an 11-page decision penned by Justice Roberto Abad, the Supreme Court En Banc, by a vote of six against three, junked the
governments petition. It ruled that Enrile, Cojuangco, and 16 others (Jose R. Eleazar Jr., Jose C. Concepcion, Rolando P.
Dela Cuesta, Emmanuel M. Almeda, Hermenegildo C. Zayco, Narciso M. Pineda, Iaki R. Mendezona, Danilo S. Ursua,

Teodoro D. Regala, Victor P. Lazatin, Eleazar B. Reyes, Eduardo U. Escueta, Leo J. Palma, Douglas Lu Ym, Sigfredo Veloso,
and Jaime Gandiaga) could no longer be prosecuted on the ground of prescription.
Justices Mariano C. Del Castillo, Lucas P. Bersamin, Martin S. Villarama Jr., Jose Portugal Perez, and Bienvenido L. Reyes
concurred with the decision, while Justices Arturo D. Brion, Maria Lourdes P. A. Sereno, and Estela M. Perlas-Bernabe
dissented. Acting Chief Justice Antonio T. Carpio, Justices Presbitero J. Velasco, Jr., Teresita J. Leonardo- De Castro, and
Diosdado M. Peralta took no part in the proceedings, while Justice Jose Catral Mendoza was on official leave.
The Court held that although Section 15, Article XI of the 1987 Constitution provides that the right of the State to recover
properties unlawfully acquired by public officials or employees is not barred by prescription, laches, or estoppel, the provision
only applies to civil actions for recovery of ill-gotten wealth, not criminal cases such as the complaint against the respondents
as settled in Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto.
The Court pointed out that because RA 3019 is a special law, the 10-year prescriptive period should be computed in
accordance with Section 2 of Act 3326, which provides, prescription shall begin to run from the day of the commission of the
violation of the law, and if the same be not known at the time, from the discovery therof and the institution of the judicial
proceedings for its investigation and punishment. The Court further explained that this provision provides two rules for
determining when the prescriptive period shall begin to run: first, from the day of the commission of the violation of the law,
if such commission is known; and second, from its discovery, if not known, and the institution of judicial proceedings for its
investigation and punishment.
On April 25, 1977, Regala, Lazatin Reyes, Escueta and Palma incorporated United Coconut Oil Mills, Inc. (UNICOM) with an
authorized capital stock of P100 million.

On August 29, 1979, the Board of Directors of United Coconut Planters Bank (UCPB) composed of Cojuangco, Enrile, the late
Maria Clara L. Lobregat, Eleazar, Concepcion, Dela Cuesta, Almeda, Zayco, Pineda, Mendezona, and Ursua approved a
resolution authorizing UCPB, theAdministrator of the Coconut Industry Investment Fund (CII Fund), to invest not more
than P500 million from the fund in the equity of UNICOM for the benefit of the coconut farmers.
On September 4, 1979, UNICOM increased its authorized capital stock to 10 million shares without par value. A few days
later, on September 18, 1979, UNICOM again increased its capital stock to 1 billion shares, approved by the new set of
UNICOM directors which included Cojuangco, Enrile Lobregat, Eleazar, Concepcion, Almeda, Mendezona, Regala, Lu Ym,
Veloso, and Gandiaga.
About 10 years later or on March 1, 1990, the Office of the Solicitor General (OSG) filed a complaint for violation of Section
3(e) of RA 3019 against the respondents before the Presidential Commission on Good Government (PCGG), alleging that
UCPBs investment in UNICOM was manifestly and grossly disadvantageous to the government since UNICOM had a
capitalization of P5 million and it had no track record of operation. The PCGG then filed the case before the Office of the
Ombudsman in line with the ruling in Cojuangco, Jr. v. Presidential Commission on Good Government, which had
disqualified the PCGG from conducting preliminary investigation in the case.
On March 15, 1999, the Office of the Special Prosecutor ruled that while it found sufficient basis to indict respondents for
violation of Section 3(e) of RA 3019, the action has already prescribed. Subsequently, on May 14, 1999, the Office of the
Ombudsman approved the recommendation. After the OSGs motion for reconsideration was denied by the Ombudsman, the
OSG filed the present petition.
The High Court explained that in the prosecution of behest loans, the prescriptive period must be reckoned from the
discovery of such loans. The reason for this is that the government, as the aggrieved party could not have known that the
loans existed when they were made. They could only have been discovered after the 1986 EDSA Revolution when the people
ousted President Marcos from office. The Court, however, ruled that those circumstances were not present in this case.

For one thing, what is questioned here is not the grant of behest loans that, by their nature, could be concealed from the

public eye by the simple expedient of suppressing their documentations. What is rather involved here is UCPBs investment
in UNICOM, which corporation is allegedly owned by respondent Cojuangco, supposedly a Marcos crony. That investment
does not, however, appear to have been withheld from the curious of from those who were minded to know like banks or
competing
businesses,
the
Court
held.
The Court noted that there was also no allegation that the Securities of Exchange Commission (SEC) denied the public access
to UCPBs investment in UNICOM during martial law.

It thus concluded that the last day for filing the action was, at the latest, on February 8, 1990, about four years after martial
law ended. February 8, 1990 is 10 years from the date of registration with the SEC by UNICOM of the paid-up subscription
of UCPB.

Petitioner

had known of the investment it now questions for a sufficiently long time yet it let those four years of the
remaining period of prescription run its course before bringing the proper action, the Court held. Prescription of actions is a
valued rule in all civilized states from the beginning of organized society. It is a rule of fairness, it added. (G.R.
139930, Republic of the Philippines v. Cojuanco, Enrile et al, June 26, 2012)

SC Stops Execution of Boracay 'Marina Project'


Posted: July 13, 2012; By Katrina M. Martinez

The Supreme Court En Banc has ordered the Provincial Government of Aklan, the Philippine Reclamation Authority (PRA),
and the Department of Environment and Natural Resources-Environmental Management Bureau Regional Office VI (DENREMB RVI) to immediately cease and desist from continuing the implementation of the reclamation project involving 2.64
hectares of foreshore and offshore areas in Barangay Caticlan and Boracay Island, known as the Boracay Marina Project.
In a 68-page unanimous decision penned by Justice Teresita J. Leonardo-De Castro, the Supreme Court En Banc partially
granted the petition for issuance of an Environmental Protection Order in the nature of a continuing mandamus under
the Rules of Procedure for Environmental Cases filed by the Boracay Foundation, Inc., and converted the Temporary
Environmental Protection Order it had issued on June 7, 2011 into a writ of continuingmandamus ordering 1. respondent
DENR-EMB RVI to revisit and review: a. its classification of the reclamation project as a single instead of a co-located
project; b. its approval of respondent Province of Aklans classification of the projects as a mere expansion of the existing jetty
port in Caticlan, instead of classifying it as a new project; and c. the impact of the reclamation project to the environment
based on new, updated, and comprehensive studies, which should forthwith be ordered by respondent DENR-EMB RVI; 2.
respondent Province of Aklan to a. fully cooperate with the DENR-EMB RVI in its review of the reclamation project proposal
and submit to the latter the appropriate report and study; and b. secure approvals from local government units and hold
proper consultations with non-governmental organizations and other stakeholders and sectors concerned as required by
Section 27 in relation to Section 26 of the Local Government Code; 3. respondent PRA to closely monitor the submission by
respondent Province of the requirements to be issued by the DENR-EMB RVI in connection to the environmental concerns
raised by the Boracay Foundation, Inc. and to coordinate with respondent Province in modifying the Memorandum of
Agreement (MOA) they entered into concerning the reclamation project, if necessary, based on the findings of the DENREMB RVI; and 4. petitioner Boracay Foundation, Inc. and the three respondents to submit their respective reports to the
Supreme Court regarding their compliance with the requirements set forth in the decision no later than three months from
the date of decision's promulgation.
The subject Renovation/Rehabilitation of the Caticlan Passenger Terminal Building and Jetty Port, Enhancement and
Recovery of Old Caticlan Coastline, and Reclamation of a Portion of Foreshore for Commercial Purposes (Marina Project)
involves the reclamation of foreshore areas in the vicinity of Boracay island from an original proposal of 2.64 hectares,
costing around P260M, to 40 hectares,which will entail an additional cost of P785M, in the areas adjacent to the jetty ports,
Barangays Caticlan and Manoc-manoc in the Municipality of Malay.
The Provincial Government of Aklan, led by Governor Marquez, entered into a MOA with the PRA in 2009 in the
implementation of the reclamation of a total of 40 hectares in the areas adjacent to Boracay. However, due to the failure of
the Province to submit specific documents to the PRA, the subject matter area of the case had been limited to the original
proposal of 2.64 hectares.
Boracay Foundation, Inc., a corporation composed of at least 60 owners and representative of resorts, hotels, and similar
institutions as well as community organizations and environmental advocates in Boracay island, opposed the implementation
of the project, citing the failure of the Provincial Government of Aklan to comply with the relevant rules and regulations in
the acquisition of an Environmental Compliance Certificate (ECC) from the DENR-EMB RVI. It maintained that a full
Environmental Impact Assessment (EIA) was needed to ensure that such projects are in line with sustainable development of
natural resources, alleging that any project involving Boracay requires a full EIA since it is an Environmentally Critical Area
(ECA).

The Court found problematic respondent DENR-EMB RVIs evaluation of the reclamation project. It added that the
questions of the agencys approval of the Provinces classification of the project as a mere expansion of the existing jetty port
in Caticlan instead of classifying it as a new project, its classification of the project as a single project instead of a co-located
project, the Provinces failure to conduct prior public consultations and secure approval of local government agencies, and the

lack of comprehensive studies regarding the impact of the reclamation projects to the environment put in question the
sufficiency of the evaluation of the project by respondent DENR-EMB RVI.
The High Court also noted that 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 such as the proposed reclamation in Boracay. It added that the Marina Project could 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 requiring prior consultations with the affected local
communities, and prior approval of the project by the appropriate sanggunian.
Accordingly, the information dissemination conducted (by the Province) months after the ECC had already been issued was
insufficient to comply with this requirement under the Local Government Code. Had they been conducted properly, the prior
public consultation should have considered the ecological or environmental concerns of the stakeholders and studied
measures alternative to the projects, to avoid or minimize adverse environmental impact or damage, stressed the Court.
The Court lamented that the lack of prior public consultation and approval was not corrected by the succeeding 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.
The Court further ruled that the question as to whether the proposed reclamation is a new project or a mere expansion of the
existing jetty port facility must be answered by the respondent DENR-EMB RVI as the agency with the expertise and
authority to do so, subject to the more rigorous environmental impact study requested by petitioner Boracay Foundation, Inc.

The Court also held that, as to the classification of the Marina Project, the DENR-EMB RVI should conduct a thorough and
detailed evaluation of the project to address the question of whether this could be deemed a group of single projects
(transport terminal facility, building, etc.) in a contiguous area managed by the Provincial Government of Aklan, or as a
single project.
It further stated that the EIA report submitted by the Provincial Government of Aklan in its application for ECC did not cover
the new proposed constructions and their environmental effects, and was a mere reiteration of the old studies it previously
submitted for the construction of the original jetty port in 1999. (GR No. 196870, Boracay Foundation, Inc. v. The Province of
Aklan, June 26, 2012)

SC: Ex Officio Members of PEZA's Board of Directors Not Entitled to Per Diems
Posted: July 10, 2012; By Bianca M. Padilla

The Supreme Court En Banc has recently dismissed the petition of the Philippine Economic Zone Authority (PEZA) assailing
the ruling of the Commission of Audit (COA) that Members of the PEZA Board of Directors, serving in an ex officio capacity
are not entitled to per diems for every attendance in a Board meeting. They include the Undersecretaries from the
Department of Finance, the Department of Labor and Employment, the Department of the Interior and Local Government,
the Department of Environment and Natural Resources, the Department of Agriculture, the Department of Public Works and
Highways, the Department of Science and Technology, and the Department of Energy.
In a 13-page decision penned by Justice Martin S. Villarama, Jr., the Court En Banc unanimously held that COA properly
issued COA Decision No. 2009-081 dated September 15, 2009, which upheld the Notice of Disallowance for the payments of
per diem to ex officio members of the PEZA Board for the period 20012006 amounting to P5,451,500.00 issued by PEZA
Auditor Corazon V. Espao. COA held that the last paragraph of Section 11 of RA 7916 (Special Economic Zone Act of 1995)
authorizing the members of the PEZA Board to receive per diems was deleted in the amendatory law, RA 8748 (An Act
Amending Republic Act No. 7916, Otherwise Known As The "Special Economic Zone Act of 1995"). It also ruled that the
payment of per diems was clearly contrary to Section 13, Article VII of the 1987 Constitution prohibiting double
compensation to public officers.
The Court reiterated its ruling in Civil Liberties Union v. Executive Secretary 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. The reason is
that these services are already paid for and covered by the compensation attached to the principal office. Amounts collected
in the form of a per diem, honorarium or allowance is considered additional compensation prohibited by the Constitution.
The Court also denied the request of the Undersecretaries serving in the PEZA Board to retain the per diems already received
by them for the period Notice of Disallowance was issued. It ruled that since Civil Liberties Union v. Executive Secretary was
promulgated in 1991, 10 years before payments of per diems by PEZA were disallowed, PEZA cannot say it acted in good faith.
It should have acted with caution in the disbursement of per diems knowing jurisprudence does not entitle ex officio position
to these benefits. (GR No. 1897767, PEZA v. COA, July 3, 2012)

SC: Jalosjos Stays as Second District Zamboanga Sibugay Representative


Posted: July 6, 2012; By Jay B. Rempillo

Romeo M. Jalosjos, Jr. will stay as Representative of the Second District of Zamboanga Sibugay. Jalosjos won and was
declared winner as Representative of the Second District of Zamboanga Sibugay in the May 2010 elections.
Voting unanimously, the Supreme Court En Banc reiterated the demarcation line between the jurisdiction of the Commission
on Elections (COMELEC) and the House of Representatives Electoral Tribunal (HRET) as it granted the petition of Jalosjos
(GR No. 192474) to reverse and set aside the COMELECen bancs June 3, 2010 order that granted the motion for
reconsideration of his rival Dan Erasmo, Sr. and declared Jalosjos ineligible to seek election in his current post for failing to
satisfy the residency requirement.
In a nine-page decision penned by Justice Roberto A. Abad, the Court also reinstated the COMELEC Second Divisions
resolution dated February 23, 2010 dismissing Erasmos petition to cancel Jalosjos Certificate of Candidacy (COC) for
insufficiency in form and substance. It also dismissed for lack of jurisdiction the petition in GR No. 192704 and GR No.
193566 concerning the COMELECs failure to annul Jalosjos proclamation and his exclusion from the voters list,
respectively.

The Court has already settled the question of when the jurisdiction of the COMELEC ends and when that of the HRET

begins. The proclamation of a congressional candidate following the election divests COMELEC of jurisdiction over disputes
relating to the election, returns, and qualifications of the proclaimed Representative in favor of the HRET, ruled the Court.
The Court held that when the COMELEC en banc issued its order dated June 3, 2010, Jalosjos had already been proclaimed
on May 13, 2010 as winner in the election. Thus, the COMELEC acted without jurisdiction when it still passed upon the issue
of his qualification and declared him ineligible for the office of Representative of the 2nd District of Zamboanga Sibugay. It
further held that the last standing official action in his case before the election day was the ruling of the COMELECs Second
Division that allowed his name to stay on the voters registration list.

With the fact of [Jalosjos] proclamation and assumption of office, any issue regarding his qualification for the same, like his
alleged lack of the required residence, was solely for the HRET to consider and decide, ruled the Court.
The Court held that the COMELEC en banc exceeded its jurisdiction in declaring Jalosjos ineligible for the position of
representative for the said post, which he had won in the elections, since it had ceased to have jurisdiction over his case.
The Court also dismissed Erasmos petition questioning the validity of the registration of Jalosjos as a voter and the
COMELECs failure to annul his proclamation, ruling that the Court cannot usurp the power vested by the Constitution
solely on the HRET.

In May 2007, Jalosjos, Jr. ran for Mayor of Tampilisan, Zamboanga del Norte and won. While serving as Tampilisan Mayor,
he bought a house and lot in Brgy. Veterans Village, Ipil Zamboanga, Sibugan and occupied the same in September 2008. In
May 2009, Jalosjos applied with the Election Registration Board (ERB) of Ipil, Zamboanga, Sibugay for transfer of his voters
registration record to Precinct 0051F of Brgy. Veterans Village.

The ERB approved Jalosjos application and denied Erasmos opposition thereto. Erasmo later filed a petition to exclude
Jalosjos from the list of registered voters of the above-named precinct before the First Municipal Circuit Trial Court of IpilTungawan-R.T. Lim (MCTC). The MCTC, excluding Jalosjos from the list of registered voters in question, ruled that he did
not abandon his domicile in Tampilisan since he continued even then to serve as its Mayor. Jalosjos appealed his case to
Regional Trial Court of Pagadian City, which affirmed the MCTC decision.
Jalosjos then elevated the matter to the Court of Appeals, which issued a writ of preliminary injunction enjoining the trial
courts from enforcing their decisions.
On November 28, 2009, Jalosjos filed Certificate of Candidacy for the position of Representative of the 2nd District of
Zamboanga Sibugay for the May 2010 elections. Erasmo filed a petition to cancel Jalosjos COC before the COMELEC,
claiming that Jalosjos made material misrepresentations in that COC when he indicated in it that he resided in Ipil,
Zamboanga Sibugay. On February 23, 2010, the COMELEC SecondDivision dismissed Erasmos petition for insufficiency in
form and substance. While Eramos motion for reconsideration was pending before the COMELC en banc, Jalosjos won as
Representative of the Second District of Zamboanga Siguay in the May 10, 2010 elections and was proclaimed winner.

Subsequently, the COMELEC en banc granted Erasmos motion for reconsideration and declared Jalosjos ineligible to seek
election as Representative of the said district.
Both Jalosjos and Erasmo came up to this Court on certiorari. In GR 192474, Jalosjos challenges the COMELECs finding that
he did not meet the residency requirement and its denial of his right to due process, citing Roces v. HRET. In GR 192704,
Erasmo assails the COMELEC en bancs failure to annul Jalosjos proclamation as election Representative of the Second
District of Zamboanga Sibugay despite his declared ineligibility.
Meanwhile, on June 2, 2010, the CA rendered judgment in the voters exclusion case before it, holding that the lower courts
erred in excluding Jalosjos from the voters list of Barangay Veterans Village in Ipil since he was qualified under the
Constitution and RA 8189 to vote in that place. Eramo filed a petition for review of the CA decision with the Court.
Subsequently, the Court ordered the consolidation of the three related petitions. (GR No. 192474, Jalosjos, Jr. v. COMELEC;
GR No. 192702, Erasmo v. Jalosjos, Jr.; GR No. 193566, Erasmo, Sr. v. Jalosjos, June 26, 2012)

SC: Angeles University Foundation Not Entitled to a Refund for Payment of Building
Permit and Real Property Taxes
Posted: July 6, 2012; By Bianca M. Padilla

The Supreme Court affirmed the ruling of the Court of Appeals (CA) that Angeles University Foundation is not entitled to a
refund for the payment of its building permit and locational clearance fees as well as real property taxes amounting to P
826,662.99, which it had paid under protest.
Earlier, the CA had reversed the decision of the Regional Trial Court of Angeles City, Branch 57 declaring Angeles University
Foundation exempt from payment of building permit and other fees and ordering the City of Angeles to refund the same with
interest at the legal rate. Angeles University Foundation sought for a refund on the ground that the building permit and other
fees are really taxes considering they are used to generate revenue; and Sec. 193 of the Local Government Code of 1991 which
provides that non-stock and non-profit educational institutions, such as itself, are exempt from payment of these types of
taxes.
In the 16-page decision penned by Justice Martin S. Villarama, Jr., the Court's First Division unanimously held that CA
committed no reversible error in finding Angeles University Foundation liable to pay the protested permit and fees since the
exemption from payment of regulatory fees was not among the incentives granted it under RA 6055 (An Act To Provide For
The Conversion Of Educational Institutions From Stock Corporations To Non-Profit Foundations, Directing The Government
Service Insurance System, The Social Security System And The Development Bank Of The Philippines To Assist In Such
Conversion, And For Other Purposes) when it was promulgated in August 4, 1969 and the Local Government Code of 1991.
The Court stressed that exemption of other charges to include the payment of building permits and locational clearance
fees as claimed by the Angeles University Foundation is improper because Sec. 8 of RA 6055 is qualified by the words
imposed by the Government on all property used exclusively for the educational activities of the foundation. In effect,
building fees are not impositions on property but instead are regulatory impositions on the activity the government
regulates. A charge of a fixed sum is an exercise of police power if the purpose is primarily to regulate, even though revenue is
generated incidentally.
The Court also ruled that for exemption from real property tax under Sec. 234(b) of the Local Government Code of 1991 to
apply, the real property must actually, directly, and exclusively used for... educational purposes.
As clarified in Lung Center of the Philippines v. Quezon City, what is meant by actual, direct, and exclusive use of the property
is direct and immediate and actual application of the property itself to the purpose of which the charitable institution is
organized. The use of the income from the real property is not determinative for tax exempt purposes. The Court found
Angeles University Foundation was not entitled to a refund for its payment of real property tax because it was not able to
prove that its real property is actually, directly, and exclusively used for educational purposes. It held that the land of Angeles
University Foundation was correctly assessed for real property taxes for the taxable period during which the land is not being
devoted soly for the latter's educational activities. (GR No. 189999, Angeles University v. City of Angeles, et. al., June 27,
2012)

SC: President Can Appoint CJ; JBC Can be Headed by Most Senior Justice
Posted: July 5, 2012; By Jay B. Rempillo

The Supreme Court has dismissed the petition questioning the Presidents constitutional power to appoint the Chief Justice
of the Supreme Court and arguing that only the incumbent Chief Justice can head the Judicial and Bar Council (JBC).

Citing Section 9, Article VIII of the Constitution, the Court stressed that the Constitution provides that The members of the
Supreme Court and the 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.

A plain reading of the constitutional provisions on the Judicial Department in Article VIII of the 1987 Constitution clearly
shows that the phrase Members of the Supreme Court and the words Members and Member are repeatedly used to refer to
the Justices of the Supreme Court without distinction whether he be the Chief Justice or any of the Associate Justices or all
fifteen Justices, ruled the Court in its seven-page resolution.

The Court also held that it does not agree with petition that the JBC can only be headed by the incumbent Chief Justice and
no other.
The Court explained that the JBCs principal function is to recommend appointees to the Judiciary. For every vacancy, the
JBC submits to the President a list of at least three nominees and the President may not appoint anybody who is not in the
list. Any vacancy in the SC is required by the Constitution to be filled within 90 days from the occurrence thereof. It cannot,
therefore, be compromised only because the constitutionally named Chair could not sit in the JBC. Although it would be
preferable if the membership of the JBC is complete, the JBC can still operate to perform its mandated task of submitting the
list of nominees to the President even if the constitutionally named ex-officio Chair does not sit in the JBC, the Court
stressed.
The Court held that considering that the complete membership in the JBC is preferable and pursuant to its supervisory power
over the JBC, it should not be deprived of representation. It ruled that the most Senior Justice of the High Court, who is not
an applicant for the position of Chief Justice, should participate in the deliberations for the selection of nominees for the said
vacant post and preside over the proceedings in the absence of the constitutionally named ex-officio chair, pursuant to
Section 12 of RA 296, or the Judiciary Act of 1948, which reads: In case of vacancy in the office of the Chief Justice of the
Supreme Court, or of his inability to perform the duties and powers of his office, they shall devolve upon the Associate Justice
who is first in precedence, until such disability is removed, or another Chief Justice is appointed and duly qualified. This
provision shall apply to every Associate Justice who succeeds to the office of the Chief Justice.
In addition, the Court also found that petitioner Famela Dulay is wanting in legal standing to institute the instant petition as
she did not explain her capacity in instituting the petition whether as citizen or taxpayer filing on behalf of the public who are
directly affected by the issues. (Extended Res., GR No. 202143, Dulay v. JBC, July 3, 2012)

SC Upholds Senate Committee Report Finding "Overwhelming Mismanagement" by


PCGG
Posted: June 27, 2012; By Bianca M. Padilla

The Supreme Court En Banc has recently dismissed a petition assailing Senate Committee Report No. 312 recommending the
privatization and transfer of jurisdiction over the shares of the government in the Philippine Overseas Telecommunications
Corporation (POTC) and the Philippine Communications Satellite Corporation (PHILCOMSAT) from the Presidential
Commission on Good Government (PCGG) to the Privatization Management Office under the Department of Finance and the
replacement of the PCGG government nominees as directors of POTC and PHILCOMSAT.
The challenged Committee report was submitted to the Senate on June 7, 2007 by respondent Senate Committees on
Government Corporations and Public Enterprises and on Public Services after finding in an inquiry conducted in aid of
legislation overwhelming mismanagement by the PCGG and its nominees over POTC, PHILCOMSAT, and [PHILCOMSDAT
Holdings Corporation] PHC, and that PCGG was negligent in performing its mandate to preserve the governments interests
in
the
said
corporations.
The
Senate
approved
the
Report
that
very
same
day,
It was Senator Miriam Defensor Santiago who had earlier introduced Proposed Senate Resolution (PSR) No. 455 directing
the conduct of the said inquiry in aid of legislation in view of the losses incurred by POTC, PHILCOMSAT, and PHC.
In an 8-page decision penned by Justice Estela M. Perlas-Bernabe, the Court unanimously held that the Senate did not
commit any grave abuse of discretion amounting to lack or excess of jurisdiction for approving the said Committee report.
It noted that in the consolidated cases of In the Matter of the Petition for Habeas Corpus of Camilo Sabio, it had already
upheld the respondent Senate Committees power of inquiry in relation to PSR No. 455.There the Court ruled that the
legislative power to conduct inquiries in aid of legislation must carry with it all powers necessary and proper for its effective
discharge. Thus the respondent Senate Committees cannot be said to have acted with grave abuse of discretion amounting to
lack or in excess of jurisdiction when it submitted Committee Report No. 312 given its constitutional mandate to conduct
legislative inquiries nor can the Senate be faulted for approving the report on the very same day the report was submitted.
The Court also ruled that the right to be assisted by counsel of petitioners Enrique L. Locsin and Manuel B. Andal was not
violated in this case because this right can only be invoked by a person under custodial investigation and not in a situation
where one is merely invited to public hearings as resource persons. Locsin and Andal are both directors and corporate officers

of PHC as well as nominees of the government to the board of directors of both POTC and PHILCOMSAT. (G.R. No.
180308, Philcomsat v. Senate, June 19, 2012)

SC: State Participation Indispensable Element in Amparo Case


Posted: June 27, 2012; By Jay B. Rempillo

In a writ of amparo case, government involvement in enforced disappearances and extra legal killings is an indispensable
element.
Voting unanimously, the Supreme Court has dismissed for being fatally defective a petition for writ of amparo filed by the
family of a man who had allegedly disappeared after he was mauled for committing a misdemeanor by the security people of a
subdivision in Malolos, Bulacan.
In a 15-page decision penned by Justice Mariano C. Del Castillo, the Court En Banc reversed and set aside the July 24, 2008
decision of the Malolos City Regional Trial Court, Branch 20, which had issued a writ of amparo and ordered the production
of the body of Benhur Pardico before the trial court.
The Court ruled that the indispensable element of State participation was not present in this case. It held that the petition
does not contain any allegation of State complicity, and none of the evidence presented tend to show that the government or
any of its agents orchestrated Bens disappearance. In fact, none of its agents, officials, or employees were impleaded or
implicated in amparo petition whether as responsible or accountable persons. Thus is the absence of an allegation or proof
that the government or its agents had a hand in Bens disappearance or that they failed to exercise extraordinary diligence in
investigating his case, the Court will definitely not hold the government or its agents either as responsible or accountable
persons, the Court held.
Under Section 1 of AM No. 07-9-12-SC, The Rule on the Writ of Amparo, a writ of amparo may lie against a private individual
or entity. However, the Court underscored that even if the person sought to be held accountable or responsible in
an amparo petition is a private individual or entity, still, government involvement in the disappearance remains an
indispensible element.
The Court stressed that petitioners Edgardo Navia, Ruben Dio, and Andrew Buising were mere security guards at Grand
Royale Subdivision in Brgy. Lugam, Malolos City and their principal, the Asian Land, was a private entity. It further held that
they do not work for the government and nothing has been presented that would link or connect them to some covert police,
military, or governmental operation.
The Court noted that The Rule on the Writ of Amparo, promulgated to arrest the rampant extralegal killings and enforced
disappearances in the country, was aimed at providing an expeditious and effective relief 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. In probing enforced disappearances, the SC held that courts should read The
Rule on the Writ of Amparo in relation to RA 9851,Philippine Act on Crimes Against International Humanitarian Law,
Genocide, and Other Crimes Against Humanity.
It is now clear that for the protective writ of amparo to issue, allegation and proof that the persons subject thereof are
missing are not enough. The petitioner in an amparo case has the burden of proving by substantial evidence the
indispensable element of government participation, held the Court.
On March 31, 2008, Ben and Enrique Lapore were accosted by the petitioners for alleged theft of electric wires and lamps in
the subdivision. Lapore was subsequently released after signing a waiver in the subdivision security logbook that he was being
released unharmed and without any injury. Ben, who also purportedly signed the same waiver, however, reportedly was never
seen again. (GR Nos. 184467, Navia v. Pardico, June 19, 2012)